Killing Time

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

Helen Bass enjoyed an ordered if unremarkable life. The 42-year-old vocational nurse worked the second shift at the state hospital in the north Texas town of Wichita Falls. A tidy woman who lived alone, Bass occasionally entertained a friend in the evening but mostly kept to herself. After work, according to her neighbors, she would often bathe before settling down for the night with a book, a Coors Light and a pack of Benson & Hedges.

When Bass failed to show up at her job on November 30, 1989, her associates grew increasingly worried -- she rarely missed a day and always called in advance if she had a problem. Mary Barnes, a fellow nurse who frequently carpooled with Bass and had dropped her off at home the evening before, called a neighbor, Sharon Mergerson. Would she check on her friend?

Despite the November chill, the door to the small wood-frame house on Harding Street was wide open when Mergerson arrived. But her surprise turned to alarm when she encountered the chaos inside. In the bedroom she saw Helen Bass. Mergerson called the police.

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.
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."
Neighborhood activist Josie Rose doesn't think Barnes killed Bass.
Bob Burtman
Neighborhood activist Josie Rose doesn't think Barnes killed Bass.

Officers found the body lying on the bed, covered with blood. The victim had been bludgeoned with a rifle butt and another heavy object, stabbed and shot in the head. Blood was splattered throughout her bedroom and smeared in other parts of the house. Sperm in her vagina indicated she'd been sexually assaulted. To gain access to the house, the killer had kicked in a rear door with such force that the frame had been torn from the wall.

The savage killing was but the latest in a series of shocks that month to residents in the East Side community, already reeling from a string of violent crimes that included a murder-rape just five days earlier. Police were feeling pressure to make an arrest.

Within a day investigators had a suspect: Odell Barnes, Mary's son, who had been released from prison several weeks earlier after serving less than 20 months of an eight-year sentence for robbery. According to police reports, an anonymous telephone tipster linked Barnes to the murder, and a witness placed him at the scene of the crime the night Bass was killed.

The investigation moved forward quickly. A pinkie fingerprint found on a lamp that may have been used to beat the victim belonged to Barnes. Another witness told police he saw Barnes with the gun that may have been used in the crime. A partial bloody sneaker print on a checkbook cover was consistent with the pattern on a pair of basketball shoes owned by the suspect (though several million similar pairs were walking around the country at the time). A spot of blood found on his coveralls matched the victim's blood type; lab tests indicated that the semen in the body could have come from Barnes, though the science of DNA testing had not yet advanced enough to prove either link conclusively.

And his guilt in other violent crimes lent credence to his involvement in the murder.

The case fell an eyewitness short of a slam dunk for the prosecution, but the evidence proved compelling enough to a jury. Barnes was convicted of capital murder in 1991 and sentenced to death.

Barnes admits to a number of crimes, including robbery and rape. He admits using crack and stealing to support his craving. He admits that he has screwed up almost every chance he has had to straighten himself out. But he doesn't admit to murder. "I'm no angel," Barnes says, "but I didn't do this."

Of course, almost all convicts profess innocence, especially if their lives are on the line. But Barnes has far more than mere words to back his claim. Recent lab tests and extensive looks at the evidence have ripped away key elements of the case against him, and new witnesses have contradicted the prosecution's version of what happened that night.

The team of attorneys and investigators working to save Barnes contend that the verdict resulted from a deadly combination of factors: a botched investigation, ineffective trial lawyers and a convict-at-all-cost attitude on the part of police and prosecutors. They cite a pattern of corners cut, testimony changed, evidence ignored. "What happened to actually working a case?" asks Mike Ward, a private investigator and former cop who has dissected the initial investigation. "What happened to following every possible lead? When did it change to 'Let's just get a conviction, period'?"

The defense may be biased, but scientific analysis confirms at least some of those impressions. Blood-preservative expert Kevin Ballard tested the spot of blood found on Barnes's coveralls (which DNA testing eventually confirmed came from the victim). His conclusion: The blood was either accidentally spilled from a vial onto the coveralls by the state crime lab -- or deliberately planted there. "This is the most blatant case of tainted evidence I've ever seen," Ballard says.

But anything short of a confession by someone else may do Barnes no good. His various appeals have been rejected. Barring a last-minute reprieve, Odell Barnes will be executed by lethal injection on March 1.


Within hours of discovering the body of Helen Bass, police began methodically building a murder case against Barnes. They cataloged the evidence and dusted for fingerprints. Several officers filed reports describing their findings in detail: a bloody knife, a damaged lamp, bloody rags, bloodstains on furniture, several discarded cigarette butts, $200 in cash, a broken rifle stock that was apparently used to club the victim's head, a bloody towel lying on the ground outside the house. "The rear east door kicked in by the suspect was observed to have a shoe print near the lock area," wrote officer Stephen Thayer.

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.

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.

Rice didn't make much headway, but she did learn enough to feel uncomfortable about the verdict. "I believe there were several people there," Rice says. "I think Odell was capable of doing it, but I don't know if he did it."

She has little doubt, however, that Cannedy and Wilson were unprepared for trial. "Probably the most disturbing thing was that his attorneys did not do an investigation," Rice says. "I had never seen a case where [the defense] didn't do anything at all."

But as so often happens in capital cases, the struggle to clear Barnes wouldn't begin in earnest until the 11th hour.


The cool breeze and soothing sounds of breaking waves belie the war-room atmosphere inside the Galveston beach house. Amid scattered mounds of legal briefs and trays of food, three lawyers and two private investigators bang on laptops, struggle with cell phones, group and ungroup. With the execution date looming, they're scrambling to tie off loose ends and file a motion that might save the life of Odell Barnes.

In 1998 U.S. District Judge Sam Cummings appointed attorneys Philip Wischkaemper and Gary Taylor to represent Barnes in his late-stage appeals. They hired private investigator Lisa Milstein, who began digging with a fine-tooth comb, instead of the pitchfork wielded by her predecessors. Attorney Mike Charlton, a veteran of many capital appeals, joined the effort.

Backed by $16,000 from anti-death-penalty Europeans and using their own funds to supplement the meager cash rations from the court, the team hired several experts to review the evidence. As their analyses rolled in, the sense of urgency about the case grew exponentially.

What most shocked the defense team was the shoddy way the crime scene had been handled. Evidence, including the kicked-in door, closet doors with visible fingerprints from the victim's bedroom and a stained washcloth, had vanished. Police eventually located the entryway door, unlabeled, lying in a garage that was being used as a temporary storage facility. The shoe print described in the initial police report had been wiped clean, a significant matter -- Barnes has size 14EEE feet, and the print identified in the initial police report could easily have been measured.

Moreover, police had tested none of the blood smeared in different parts of the house to see if it matched the victim's (or Barnes's, for that matter); the same goes for blood that appeared on a number of articles, including a towel apparently discarded by the killer outside the house. Though Bass had two broken fingernails that might have split in the struggle, her hands weren't bagged and no scrapings were taken, standard procedure in a homicide investigation. Other evidence was improperly labeled.

The presence of a bloody shoe print suggests that others should have been in the house as well; but a more sensitive dusting to lift such prints was never done either. The videotape and photos taken at the scene were of such poor quality that they're practically worthless. The videotape bounces around more nauseatingly than in The Blair Witch Project.

And a number of fingerprints lifted at the scene were never compared with those of other possible suspects or the victim -- an obvious, egregious oversight. "It appears to be a less than diligent effort," concludes defense investigator Mike Ward. "It's the McDonald's style of burger-flipping police work." In a capital murder case, Ward says, "there should be no rock unturned; there should be no piece of evidence not tested."

Certified forensic examiner John Jacobson came to the same conclusion. "In my opinion," he wrote in a letter after reviewing the evidence, "the processing of this crime scene, or lack thereof, can be described at best as sloppy and unprofessional."

Even the Wichita Falls police agree. After revisiting that investigation and several others during the period, the department completely overhauled procedures. "There were parts of that crime scene that if you read the books today, you could look back and say, 'Boy, did we do that wrong,' " says detective Bill Pursley. In particular, Pursley cites a lack of training to shoot video and take pictures, improper numbering and packaging of evidence, and the lack of fingerprint checks. "It just kind of surprised me that those prints were never compared with anybody."


The defense team still faced one seemingly impossible hurdle: DNA evidence. Tests done by the state in 1998 proved that it was Barnes's semen in the victim and that the blood on his coveralls belonged to Helen Bass.

Though the prosecution contended that Barnes had kicked in the door and waited for the victim to come home, that scenario had always seemed strange. Not only did his mother work with Bass and was one of her best friends, but Barnes had done roofing and other odd jobs on her house, facts established at trial. If he had wanted to gain access, says neighborhood activist and businesswoman Josie Rose, he could simply have knocked on the door. "He wouldn't have tore up her house like that," Rose says.

His work for Bass could explain the fingerprint on the lamp; as for the semen, Barnes says he and Bass had an ongoing sexual relationship, a claim backed by residents in the neighborhood where they lived. The last time he had sex with Bass, he says, was two days before her death.

The issue of an affair between Barnes and the victim was never explored at trial, which surprises former Public Defender's attorney Nancy Botts. During her interview with Barnes just after his arrest, she recalls, he mentioned the sexual relationship with Bass right off the bat. "He said he'd done work for her around the house, and they had a thing going." Had the Public Defender's office tried the case, "that was going to be a big defense," Botts says. "Of course his prints were on the lamp. He was in and out of there all the time."

Libby Johnson, an independent forensic scientist who established the Harris County Medical Examiner's DNA lab in 1991, analyzed the sperm samples. In Johnson's view, several indicators show that Barnes most likely had sex with Bass at least 24 hours prior to her death. "If they're claiming that he raped her and killed her right away," Johnson says, "the findings are not consistent with that."

The defense had always believed that the evidence of blood on the coveralls had its own inconsistencies. D.A. Macha had argued at trial that Barnes had committed the murder by himself. While it's possible that one person might use three or four weapons to dispatch a victim, such overkill is unusual. Even if Barnes had done it without help, logic dictates that his clothes would have been covered with blood, especially given the gore-covered crime scene.

Yet the blood consisted of two nickel-sized stains.

Forensic examiner Jacobson says that based on his review of the evidence, he believes that at least two people were responsible for the crime, and that "these assailants would have had a substantial amount of blood on them."

The police had the same idea. As lead investigator Joe Shephard wrote in his search warrant request, "because of the violent struggle and the splattering of blood, [I believe] that the offender would have blood on his person and the clothes, shoes, hat or anything else that he was wearing at the time of the offense."

On a hunch, the appellate team sent the coverall sample to blood-preservative expert Ballard, whose credentials include working on the O.J. Simpson case. According to his September 30 report, the blood spot contained extremely high levels of citric acid, which is used in vials to preserve blood that has been collected from a body. The blood, he says, could not have come from a person bleeding directly onto the coveralls. "It's just screamingly clear-cut that it's not a natural stain," Ballard says.

The stain could have appeared on the coveralls, he says, only if the crime lab accidentally spilled the blood onto the cloth -- a major blunder that would violate a number of basic rules for handling evidence -- or if it was put there on purpose. "The only way it can occur accidentally is for the lab to have [both samples] opened up in the same place at the same time, and labs don't normally do that," he says. "Laboratories are very careful to avoid that type of thing. You can't rule it out 100 percent, but it would be extremely unusual."

As the defense sees it, Ballard's findings leave every bit of evidence against Barnes accounted for. "I don't think he's guilty," says attorney Charlton. "All the evidence they used against him was either rebuttable or false."

But with avenues for appeal shrinking with every major court decision, simply challenging the state's evidence -- no matter how effectively -- is no longer enough to delay an execution or even to ensure a thorough review. Only exposing the identity of another possible killer might be good enough. That would come next.


In April 1995 Public Defender's investigator Dana Rice received a letter from an inmate at the Wichita County Jail. Odell Barnes, the letter said, did not kill Helen Bass.

The letter came from Sandy Durant, who was housed in a cell block with several women from East Side, including Marquita Mackey. After a television report about Barnes aired one evening, the women began discussing the case. Three men killed Bass, they said, but Barnes wasn't one of them. Durant took notes, which she eventually passed to a relative of Barnes's.

Jailhouse conversations are notoriously unreliable, but that wasn't the last communiqué from behind bars. That August, Gatesville inmate Wendy Kessler wrote Rice saying she had heard similar prison talk about Barnes as early as 1992, but had recently learned new information. Former inmate Felita McKinney knew the truth: Someone else had killed Helen Bass.

Rice contacted some of the inmates named in the letters, but none would cooperate. And the last anyone knew of McKinney, she had been paroled and was living in New Mexico. Kessler's letter gathered dust, buried in the case files, until discovered by the Houston Press earlier this month.

On January 11 investigator Milstein tracked McKinney down. She told Milstein that she'd never come forward because she was terrified of the man she believed to be the killer, and feared he'd seek revenge if she told what she knew.

McKinney signed an affidavit saying that late on the night of the Bass murder she was sleeping in her boyfriend's car -- they lived in the vehicle outside a housing project -- when she awoke to voices. She saw her boyfriend, Randy Harper, talking to another man. Harper, she stated, was carrying a gun. Blood covered his shoes and pants. "Why did you have to shoot her?" McKinney heard the other man ask. Harper then got in the car and warned her not to tell anyone she'd seen him with the gun.

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."


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."

Rose is skeptical of the evidence that led to the conviction of Odell Barnes. Word on the street has always been that Barnes didn't do it, she says.

"I really don't personally believe he did the killing," Rose says matter-of-factly. "Wichita Falls is not interested enough to find out what [really] happened."


Barry Macha hunches forward intently in his swivel chair, his office cluttered with piles of papers that create a sense of motion. On one wall hang the photos of five young women, victims of serial killer Faryion Wardrip. "I'm not a fanatic about the death penalty," Macha says. "I don't take it lightly. I believe in certain cases it is appropriate."

Because of the nature of the crime, Macha says, Barnes is one of those cases. "It was war [in the victim's house], absolute war," he says. "Hit, beat, stabbed, shot, raped -- I hate to think what that human being went through the last moments of her life."

Macha soft-pedals some of the less convincing aspects of the case. Asked to propose a scenario to explain the time lag between the Brooks sighting of Barnes at the house and the actual crime, he dodges. "The scenario is that he's seen leaving the victim's premises," Macha says. "Whether it's before or after, he's at the scene."

Similarly, Macha won't address the likelihood of the perpetrator having only two tiny spots of blood on his coveralls. "My take on that," he says, "that's her blood on his coveralls. End of discussion."

As for Barnes having had a relationship with Bass, Macha calls that an "evolving defense." It wasn't brought up at trial, he notes, and now seems to be surfacing as a way to explain the presence of semen. "I suppose he has to make that allegation, since the DNA evidence nails him."

Macha kicks back in his chair with a patient expression. "You have to look at what I'm looking at," he says. "His semen is in her. Her blood is on his coveralls. His fingerprint is on the bloody lamp that was used to strike her. He was seen on the premises. That's pretty incriminating evidence."

Assistant D.A. Gerry Taylor agrees. "If you eliminated any one of these things," he says, "there would still be enough there in my opinion to warrant a conviction."

Not that the defense can eliminate anything, he says, including the blood. Just as the prosecution produced two experts to challenge Libby Johnson's opinion that the semen had been deposited in the victim well before the crime, the tainted blood can be challenged as well. "I think our experts will come in and say something different," Taylor predicts. "We've already connected with some experts about what they might say. They're prepared to controvert this."

Besides, Macha points out, Barnes has proven to be a danger to society many times before. After gaining the murder conviction, Macha prosecuted Barnes for two rapes that happened while he was on parole in 1987 and '88. Both of the cases included a DNA link. Barnes got life for one conviction and 99 years for the other. The reason he tried those cases after he'd already won the death penalty, Macha explains, is simple: The law at the time dictated that Barnes would have been eligible for parole in 15 years had his sentence been commuted. "That was unacceptable to me," he says.

Macha believes those aren't Barnes's only transgressions. He mentions the still-unsolved murder that occurred before Bass's, and a few other crimes. He would have charged Barnes in those cases, he says, if he'd had sufficient evidence to prove them.

Still, says Macha reflectively, anybody with new information in the Bass case should come forward. "Bring it to the police, bring it to us, bring it to me," he says. "Whoever's case it is, whether death row or not death row, if there's some evidence out there that would exonerate somebody, you bet I would want to know about it.

"If it's not him, I want to be the first one to know."


Odell Barnes seems remarkably stoic for a man just 43 days from his last breath. Though his six-foot-four-inch frame is crammed awkwardly into an interview cage at Ellis Unit, his boyish face smiles through the grate. Told of the new evidence possibly connecting someone else to the crime, Barnes sighs. "I just wish I had better lawyers a long time ago," he says.

He doesn't think much about what will happen if his appeals fail. "You just live one day at a time and hope for the best," he says. "That's all I can do."

The evening of the Bass murder, Barnes says, was pretty typical. He and Johnny Ray Humphrey went looking for dope after they got off work. They separated around 9:30 or 10 p.m. He scored some crack on Flood Street and hung out at a friend's house till about 11:45, then headed for home. A few blocks from his house he saw his mother drive by after dropping off Bass. He arrived about five minutes after she did (which Mary Barnes corroborates). They stayed up for a couple of hours talking, then went to bed.

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.

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 bob.burtman@houstonpress.com.

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