Crime & Punishment

Sitting inside a five-by-five cage in the visiting area of Texas' death row, convicted killer Anthony Ray Westley looks calm, even pleasant. But as he talks to some visitors through a glass-and-wire partition, that image of calm is shattered by the reminder of a literally scarred past. Pulling up his white prison shirt, Westley reveals, stretched across the lower right of his abdomen, the visual evidence of a gunshot wound. The disfigured flesh is a result of a night of gambling gone bad. Disputes over women, debts and drugs -- both in and out of prison -- have left Westley's arms similarly marked. During his 33 years of life, Anthony Ray Westley has burgled, robbed, stabbed, shot and terrorized people on the mean streets of Houston as well as in the precarious environs of the Ellis-I prison unit near Huntsville. Through it all, he has somehow managed to stay alive. That's a fact the State of Texas intends to change.

As the result of a capital murder conviction in connection with a 1984 robbery and murder on the outskirts of Houston, Westley is sentenced to die. But despite Westley's violent history, some people -- among them, as might be expected, his attorney, but also, unexpectedly, the judge that presided over Westley's trial -- believe the state may have convicted a guilty man of the wrong crime.

A special master who pored over the facts of Westley's trial concurs, suggesting that Westley's life and death situation is due to a lack of effort by a defense attorney combined with a less-than-forthcoming Harris County district attorney's office.

It's a case that raises the question of how much sympathy Houston's courts have, or should have, for an unsympathetic man. And it's a case that suggests that in an effort to curb crime, justice may be swinging blind. As Westley's present attorney, Barry Abrams, notes, "Anthony Westley is not innocent." But, Abrams continues, "He's just not guilty of what he was charged with. He deserves punishment, but he doesn't deserve to die."

Be that as it may, Westley would have trouble laying the genesis of his troubles at anyone's feet but his own. His plight is a dead-end result of a blood-stained day -- Friday, April 13, 1984 -- when his lifetime of luck at avoiding serious trouble finally played out.

In 1984, Eileen's Bait and Tackle was located on C.E. King Parkway in northeast Harris County near the entrance to Lake Houston. On April 13 of that year Frank Hall, a 38-year-old volunteer fireman and ambulance driver, and his wife, Eileen, a volunteer paramedic, arrived at their four-year-old store in the darkness before dawn in anticipation of selling nightcrawlers, minnows and other supplies essential to early-rising fishermen.

The Halls were on a first-name basis with many of their regular customers. Amidst the hooks, snaps and swivels, the minnow tank, a Coca-Cola cooler that chilled the beer, the Dr Pepper machine, the catfish tank and the freezer for bait was a sink where the day's catch was cleaned. Near the sink was a set of scales to weigh the scaly creatures. Stapled to the walls were pictures of the Halls' friends and customers posing with the ones that didn't get away.

Eileen and Frank had been married a little over seven years and had three children living at home with them -- a young daughter of their own, and Eileen's two sons from a previous marriage. Added to the extended family was Debra Eubanks Young, a close friend and another member of the Beaumont Road Volunteer Fire Department whom the Halls employed as a clerk.

Around 8:30 that morning, Young showed up to work her shift at the bait shop. Shortly after Young's arrival, Frank Hall left the store and drove to a nearby cafeteria where he had a second job mowing the lawn. Eileen Hall went shopping. At noon, the couple rendezvoused for lunch. After eating, Frank loaded up his lawnmower while Eileen headed back to check the bait shop. It was the last time she would see her husband alive.

When Frank and Eileen had left the bait store that morning, Debra Eubanks Young had been on her own. It was a warm and sunny day and, given the good weather conditions, Young was surprised that the bait and tackle business was so slow. When Eileen showed up, nothing much was happening, so she decided to head home and put away the items she'd picked up earlier while shopping. Shortly after his wife left, Frank Hall returned to the store. He and Young sat for a short time in the shop's office and talked about the rods and reels she was supposed to have been working on. They also talked about what Hall's wife had bought that morning. Just normal chitchat. Frank then left for home. He would never make it there.

At about the same time that Debra Eubanks Young had arrived at work that morning, Anthony Ray Westley, then 23 years old, was being awakened in his Fifth Ward hovel by two friends, John Dale Henry and Tyrone Dunbar. According to Westley, the two men cajoled him out of the house, which authorities say he shared with other thieves and prostitutes, for a "joy ride" -- a five-hour cruise during which the trio was packing heat and their noses, smoking marijuana and sipping Bacardi 151 rum.

"They came and got me out of bed," recalls Westley. "It was supposed to be nothing but a joy ride. But both of them was dope fiends. I should have known better than to ride with them, but I went with them anyway.

"We was smoking a little bit of weed, drinking alcohol. We also snorted some cocaine. That was my first time. I can't drink or smoke too much. I pass out."

And that's exactly what Westley claims he did. When he came to, he says, he found himself alone in the car outside a bait shop.

"I woke up in the car," says Westley. "I didn't see nobody, so I felt like they was inside buying something.

Actually, nobody had bought anything yet. But they were all about to.

Eileen Hall had only been at home a few minutes when the emergency "fire phone" in her house rang. She picked it up immediately, but at first she couldn't understand what the caller was saying. The woman at the other end of the line was screaming unintelligibly. Almost a minute passed before Eileen finally recognized the hysterical voice on the other end of the line. It was Debra Eubanks Young. And she was saying that something had happened to Frank. He needed an ambulance, and he needed it fast.

Although Anthony Ray Westley claims to have been left sleeping alone in the car when he and his two associates stopped at Eileen's Bait and Tackle, he admits that once he was awake he joined in on what was going on inside. Actually, according to Debra Young, Westley joined in at the very start, entering the store through the shop's swinging doors in the company of John Dale Henry and Tyrone Dunbar. As she looked up from behind the counter, Young saw Westley approach her.

"He said they were going fishing and needed some nightcrawlers," recalls Young. "I got out a box. We [had] a tub that we [dumped] the worms into to show the customers to make sure they're alive and wiggling."

After doing that, says Young, she became suspicious of the trio's intent. They told her they would need several boxes of the crawlers, and that, Young knew, wasn't right. "You wouldn't use four to six boxes in two or three days or longer," Young said. "That's when I had a kind of funny feeling. I looked out the door and I saw Frank's truck still outside.

"I turned back around to my customers. I opened my mouth to say something, but Westley grabbed me. I didn't have a chance. He stuck a gun in my nose. I started screaming. He said, 'Shut up or I will kill you. I don't want your fucking worms. I want your money.' "

Young said Anthony Ray Westley then jumped over the counter, knocked her into a wall and ordered her to get on the floor.

"He had a gun in my back," Young continued. "I got the impression that this was it. I was wondering who was going to take care of my kids."

But instead of a gunshot, Debra Young suddenly heard bells -- the cowbells on the shop's doors announcing the return of Frank Hall. He was carrying a small handgun, a .22-caliber revolver known as a "sugar papa." And all hell was about to break loose.

"I heard a succession of shots," said Young. "I heard small-caliber weapons and I heard large-caliber weapons. They were all around."

When the gun battle ended, Young looked up from where she had been cowering behind a counter and saw Westley and Henry run out the front door of the store. Frank Hall began walking towards her.

"He was looking straight at me," recalled Young on the witness stand 13 months later. "He didn't say anything. I was screaming, 'Frank, Frank, are you all right?' I thought he was okay because he was walking towards me, but he was walking very slow.

"He looked at me, and then about the time he turned to go towards the front door, all this blood started coming out of his mouth. He walked towards the front door and crouched down on his hands and knees ... and then rolled over on his right side. More blood came out of his mouth, and his eyes rolled up in the back of his head."

Young ran toward Hall, a man she called her best friend, and as she did she saw the body of Tyrone Dunbar lodged between a wall and the counter. Frantically, Young grabbed at a nearby emergency fire phone and waited for an answer. She tried it again and again, but nothing happened. So she picked up the regular phone and made a call to the emergency fire line. "When somebody finally picked up," Young said, "I started screaming that Frank had been shot."

As Eileen Hall, standing in her home, listened in shock, Young then jumped over the beer box and tried to assist Frank Hall. "I felt Frank's carotid to see if there was any kind of beat," testified the volunteer paramedic. "There was no beat, no heartbeat, and I ran out the front door."

As Hall and Dunbar bled to death on the bait shop floor, Westley was driving the wounded John Dale Henry to a northeast Houston hospital, where he dropped him off. Hospital officials turned Henry over to Harris County authorities. Henry then gave up Westley, who, after learning that police were searching for him, surrendered the next day: April 14, 1984. He had to know he was headed to jail. But he had no idea, he says now, that he might also be headed to death row.

About a year after Frank Hall was shot to death, John Dale Henry was convicted of aggravated robbery. His sentence was 35 years. According to prison officials, because of sentence reductions due to overcrowding, Henry is scheduled to be set free no later than December 1996. Shortly after Henry's trial concluded, Anthony Ray Westley was convicted of capital murder and sentenced to die by lethal injection. He is currently awaiting an execution date. It seemed, when the final verdict was handed down, that the horror in the Harris County bait shop had come to an end. Three men had been involved in a crime, and three men had paid for it, one on the floor of the bait shop itself, and two in a courtroom.

It seemed a clean result to a dirty business. However, in November 1990 questions about just how clean the result really was were raised by attorneys handling Westley's appeal. State District Judge Norman Lanford, who presided over Westley's capital murder trial, was bothered by what he heard and decided to take a second look at the proceedings. Lanford appointed a "special master" to conduct a hearing to examine allegations that Westley did not receive a fair trial and to explore questions about who really fired the shot that killed Frank Hall. Although eventually overruled by the Texas Court of Criminal Appeals, the special master found that Westley should be granted a second trial for two solid reasons: ineffective assistance of counsel and prosecutorial misconduct.

Those findings are the foundation of Westley's application for a post-conviction writ of habeas corpus -- a request for a new trial -- currently before a federal district court judge. "This case presents, in compelling terms, a breakdown in the adversarial system of justice," says Brian Wice, a local attorney who specializes in appellate law and who was chosen as the special master in Westley's case. "I just don't think, based on the testimony that I heard during the evidentiary hearing, that Anthony Ray Westley received [a fair trial]."

The Westley case is one of five in which Wice has served as a special master and quite frankly, he says, he did not expect to find anything unusual in the way this capital murder trial was conducted.

"I confess, at first blush, after I read the initial application [for a hearing] that Anthony Ray Westley's lawyers had filed, and read the responses, I didn't think there was much to the contentions that were raised, particularly those involving ineffective assistance of counsel," says Wice. "That in my mind underscores the absolute necessity in cases of this kind to have a hearing. To have the defense attorney who tried the case take the stand and face cross-examination. Because it wasn't until we actually went to a hearing, and Westley's lawyers began to put on their case and I saw [original defense attorney] Ron Mock testify, that I began, in my own mind, to have a legitimate concern about whether Mock had discharged his ability in this case."

Despite Ron Mock's claim that the defense team of himself and attorney Frank Alvarez "worked like hell" on Westley's case, the 1984 proceedings got off to a bad start when Mock was arrested during jury selection for failing to complete paper work needed by the Court of Criminal Appeals in another capital murder case. He was fined and jailed for a day. The situation went south from there. Mock would later testify during the special master's evidentiary hearing that he researched the Westley case during the "wee hours of the morning," prompting one attorney to quip that Mock "was reading when he should have been sleeping and sleeping when he should have been objecting."

"The main focus in the defense of a capital [murder] case ought to be saving [the defendant's] life before the jury, if you can," says noted Houston attorney Randy Schaffer, who served as an expert witness on Westley's behalf at the special master's hearing. "And you only need one juror to do that."

"The secondary focus," Schaffer continues, "is to preserve all appellate issues. If the case gets reversed on appeal, you will enhance the odds that [the state] will not retry as a capital and seek the death penalty. The vast majority of the capitals that have been reversed have either been commuted to life or pled to something less than death instead of being retried."

Schaffer knows of what he speaks. The attorney was instrumental in obtaining the release from prison of Randall Dale Adams, who was serving a life sentence for the murder of a Dallas police officer. As featured in the documentary The Thin Blue Line, defense attorneys were able to demonstrate that the state had suppressed evidence in the case and that someone else had actually committed the murder. As it happens, that's exactly what defense attorneys in the Westley case are trying to prove.

Shortly after his arrest, Westley signed a confession stating he had been a participant in the bait shop robbery and that he had been carrying and firing a .22-caliber handgun during the crime. Unfortunately for Westley, medical examiners had determined that Frank Hall had been killed by a .22-caliber bullet.

At his trial a year later, the prosecution team used the confession and the ballistic evidence to convict Westley of capital murder. However, what was not revealed at Westley's trial was that the only eyewitness to the holdup -- Debra Young, who didn't actually see who fired the fatal shot -- had originally told investigators that Westley had been armed with a large-caliber handgun, something resembling a .357 revolver rather than a .22. Not only was that her statement to the detectives, according to the special master's report, she later repeated her claim while testifying at the trial of John Dale Henry. However, as also documented in the special master's report, none of the information suggesting that Westley may not have been the trigger man in the death of Frank Hall was made available to Westley's lawyers, even though they had requested all exculpatory evidence. Though attorney Randy Schaffer admits that Mock's failure to have someone from the defense team sit in on the Henry trial is inexcusable, he maintains that the state was still obligated to make the potentially life-saving evidence available. The fact that the state was not more forthcoming is, Schaffer says, prosecutorial misconduct at the very least. At worst, he adds, it's damn near criminal.

"I'm sure, that as a practical matter, the prosecutors in both [Westley's and Henry's] trials were cooperating with each other all the way down the line," charges Schaffer. "But proving that's another story."

Schaffer also has a theory about why Westley told authorities that he had the .22. What happened, Schaffer believes, is that Westley lied his way straight into a capital murder charge.

"What I surmise," says Schaffer, "is that [Westley] had the big gun, which was not the murder weapon. And he fired a shot with it. And he probably thought that his shot killed the guy, but it didn't. So when the police arrested him, and he gave a statement, he lied to the police and switched the guns. He put himself with the smaller gun, thinking that would keep him from getting into trouble. But what it did, it put him in deep trouble."

Ten years after the fact, Westley agrees with Schaffer's spin on the confession. Of course, despite his lack of education and his rather slow demeanor, he'd be a fool not to agree.

"Instead of having the .22 I had the big gun," says Westley, who also claims he used Debra Young as a shield during the gun battle rather than knocking her to the floor, as she says. "To tell the truth, I thought the big gun was the one that hit him. And it wasn't.

"I gave a statement at first that said I had the .38 [a .357 firing .38-caliber slugs]. And after I got halfway finished, Detective Ron Phillips said, 'You know, the .38 was the one that killed [Hall].' And I said, 'Hold it. I don't want to give that statement.' So I switched over and gave it to the .22. And he let me finish that statement and sign it and then tell me that the .22 was the one that killed the store owner. About five minutes after I signed it he said, 'Thank you. You just confessed to killing that owner.' "

Westley says that in his Fifth Ward neighborhood he was known to always carry a .357, a response to the time he was shot during a gambling dispute.

"They says [Hall] was killed with a .22," says Westley. "The only .22s that I know was in the [bait shop] were the one Henry had, and the one the store owner had."

Detective Ron Phillips, with the homicide division of the Harris County Sheriff's Office, has a different recollection of Westley's confession. "We didn't tell him what caliber the man was killed with," says Phillips. "We didn't really know [what caliber gun killed Hall] until after he told us, to be truthful. He told us he had the .22-caliber. We called out to the medical examiner's officer after that and they told us [Hall] was shot one time in the back with a .22. There's no question in my mind at all."

Phillips also alleges that Westley bragged to the widow of Tyrone Dunbar, his dead partner-in-crime, about shooting Hall. If he did, then his boasting, as related by Phillips, contradicts the evidence of Hall having been shot in the back.

"He was bragging about it to the dead man's wife," says Phillips, a 22-year veteran of the sheriff's department. "Went over there and bragged to the family that he shot the motherfucker in the face, or shot him in the mouth, or something like that."

As for the statement to detectives from Debra Young that Westley was carrying a large gun instead of a .22 during the robbery, according to the special master's report Phillips testified in the Henry trial that Young did indeed tell detectives that. He now says he believes Young may have been confused. He also points out that while viewing a photo spread of several guns, Young selected a .22-caliber "cowboy-style" revolver-- a pistol that also looks like some .357s. -- as the one resembling the weapon carried by Westley

"As for the frame [of the gun], I don't think it was a small gun," Phillips says. "I think the frame, it was a .22 on the old frontier style. It looked like a .45. She might have seen it and thought that it was a big gun because of the size of it, especially when she was on the wrong end of it."

But according to the special master's report, during the Henry trial Debra Young testified that the weapons used by Dunbar and Henry were "little bitty guns." The report also says she claims to possess enough knowledge of firearms not only to see the difference between a .22 and a .357, but also to hear the difference between the sounds the two weapons make when fired. And she testified that Westley's gun made a sound consistent with the discharge of a large-caliber weapon.

The murder weapon in the death of Frank Hall was never recovered. Co-defendant John Dale Henry is currently incarcerated at the TDCJ's Stiles Unit near Beaumont. Henry met with the Press but refused to discuss the killing of Frank Hall or the trial of Anthony Ray Westley, much less the possibility that he might have fired the fatal shot.

"Nobody wanted to talk to me about my appeal," snorted Henry in the visiting area of the Stiles Unit, under the watchful eye of a guard seated next to him. "Society said I was guilty and so I'm doing what society wants. I'm doing my time. I don't have anything else to say."

Even though Henry is not talking about the case, his former attorney remains convinced that his client was not the killer. Attorney Jim Skelton notes that he made the unorthodox move of allowing prosecutors to talk to Henry outside of his presence because he was sure that if they did so, they wouldn't try his client for capital murder.

"What I was trying to do was avoid a capital murder indictment," says Skelton, who points out that Henry was initially charged with capital murder as well. "Had I thought John was the trigger man I would have never let him talk to the prosecutors."

While Skelton continues to stand by his man's story, he also admits that the question of who actually shot Frank Hall is a murky one. And he concedes that in a follow-up to her initial statement, Debra Young said she heard shots coming from the area of the store occupied by John Dale Henry.

"No one really knows," says Skelton. "Because the little female clerk [Young] who was jerked down behind the counter, she was down on her hands and knees and couldn't see anything."

It's the appearance that prosecutors may have performed surgery on the facts to fit the respective cases of Henry and Westley that upsets trial judge Lanford. That Young's memory of shots from Henry's region of the store came later is one concern; that it didn't get aired in Westley's trial is another. And the question of what gun was where and when is a constant bother. All that led Lanford to sign off on the recommendation by the special master that Westley be granted a second day in court.

"I understand there was a memo [about Young's different statements] in the state's file," Lanford said recently, adding that he was unaware that anything was awry during the proceedings. "So they knew that the witness was changing her story, materially, between one trial and another."

However, Lanford also tempered his remarks by saying that the problem may not have been so much with the individual prosecutors but with the overall tone of the district attorney's office.

"It's such a massive bureaucracy over there," says Lanford. "It might have been something that just fell through the cracks. [The prosecutor] may have seen the memo and didn't place any merit on it. But then the way the state does their homework a lot of times, he probably didn't even see the memo. They're not the most prepared people in the world.

"But he should have known about [the difference in testimony]. And then if he knew about it, he should have told the defense. Even if it wasn't required I certainly would have granted something like that. You don't take away somebody's life by hiding the ball on them."

This is not the first time Norman Lanford has taken exception to the actions of prosecutors and law enforcement officers. In fact, the most chronicled of those past run-ins undoubtedly cost him his seat on the bench.

In 1991 Lanford issued an instructed verdict of not guilty in the case of a man accused of killing an off-duty Harris County jailer. Lanford agreed with the defense that the murder weapon recovered by Houston police was the fruit of an illegally obtained confession. Without the murder weapon, the state had no case. The resulting public backlash was loud and long, and Lanford was subsequently defeated in the 1992 Republican primary election. Lanford says the fallout was not unexpected.

"But I sat there for an hour and a half trying to figure out how I was going to fade the heat on it," Lanford recalls. "It was obvious that this was one of the 'public morality plays' that the district attorney's office does from time to time. And like most of those kinds of cases, they're more interested in the trial on the television than they are the trial in the courtroom."

Lanford also finds distasteful what he perceives as the "just win, baby" attitude in the district attorney's office.

"It's to win at any cost," says Lanford. "It's absolutely shocking, but it's routine and it's wrong."

Harris County District Attorney John Holmes refuses to talk to the Press. However, former state district judge John Kyles takes exception to Lanford's assessment of the D.A.'s office as well as to the charge of prosecutorial misconduct. Kyles was the lead prosecutor in the Westley trial, and he maintains that it was not his job to do work the defense team should have done.

"I frankly think that it's a quantum leap for a prosecutor to be held to his statutory obligation to see that justice is done, carry out the orders of the court and to then also be held to the obligation to act as an advocate for the defendant. That is not the role of the prosecution," says Kyles. "When prosecutors are asked by law to divulge exculpatory evidence, the body of knowledge that a prosecutor is required to tender to the defense is that evidence which is within the control and knowledge of law enforcement and the state to the exclusion of the defense. However, when there is evidence within the public domain, that evidence is equally accessible to both the state and the defense.

"It appears that the evidence that I'm being held responsible for tendering to the defense was evidence that was a part of the official court record from the trial of a co-defendant. Certainly the transcript of that trial was in the public domain. Not my job to review the transcript of another trial so that I can prepare Mr. Mock [Westley's attorney] and his defense team."

But Kyles also defends Mock's handling of Westley's defense, saying different lawyers have different styles. He admits, however, that Mock sometimes relies more on style than on substance.

"Mock's strategy in this case was to assess the facts, discern a weakness and attempt to exploit that weakness," says the former prosecutor. "Where he determined their case might be very weak on the facts from the defense perspective he would, shall we say, utilize his very engaging personality to try to sway and influence the jury. In this particular instance, it very well may be that with a confession where the defendant says, 'I was in possession of the weapon that killed [Hall],' Mock's attitude [was] that his job was to try and save his client's life. And that going through the process of prolonging the trial on [the question of] guilt or innocence [might have] only served to antagonize the jury and postpone the inevitable."

If that was Mock's game plan, it was a notably unsuccessful one. Westley came away from the trial sentenced to death. Kyles believes it was testimony about Westley's past that convinced the jury that Westley should be executed.

During the punishment phase of the trial, the prosecution presented witnesses who claimed to have been robbed at gunpoint by Westley in two separate holdups. One involved the robbery of a real estate office in which no one was injured. But crucial testimony came from Jose Sanchez, the elderly owner of a northeast Houston jewelry store located near the area where Westley spent most of his life. Sanchez claimed that in 1978 -- seven years before Westley's capital murder trial -- he was shot and critically wounded by Westley during the robbery of Sanchez's store.

Sanchez (who died in December of last year) selected Westley's picture out of a photo spread shortly before the 1984 capital murder trial. Though Westley hadn't been charged in the jewelry-store or real-estate-office robberies, under Texas law prosecutors are able to present testimony about the two incidents to the jury as though they were proven fact. According to Kyles, that testimony "put the icing on the cake" and assured that Westley would be sentenced to die.

As for attorney Randy Schaffer's theory about Westley's lying to investigators in his confession to get the death gun out of his hand, the former prosecutor doesn't buy it. Kyles says he doesn't believe Westley is capable of thinking that far ahead.

Not only is Westley not that bright, says Kyles, but the former prosecutor also contends that Westley has a very dark nature.

"He did have some survival skills, and those survival skills were pretty violent," says Kyles. "And so the point was, when he met with resistance, there were no holds barred. I mean, he turned into a very violent character."

Kyles says -- and many defense attorneys agree -- that before the district attorney's office decides to seek the death penalty, the case and the defendant have to meet certain criteria. Specifically, the case has to be particularly heinous and the defendant has to be seen as a continuing threat to society. The defendant's age is also often taken into consideration. But in the opinion of trial judge Norman Lanford, the Westley case did not meet all of the district attorney's usual conditions.

"Westley wasn't a bad sort of guy," contends Lanford, who has a completely different take on the convicted killer than does former prosecutor Kyles. "And that wasn't a bad sort of a capital murder. I mean, there were three armed people in [the bait shop]. And [Frank Hall] went in there to take on three armed men with a North American Arms mini-revolver, one of those little five-shot single-action .22 revolvers that's two and a half inches long. And only a crazy person would take that into a fight. But that's what he did, and that's about asking for it," Lanford says in only a half-joking tone.

But Westley's appellate attorney, Barry Abrams, is less casual about even jokingly putting some of the blame for Hall's death on Hall himself. Abrams says he worried about being viewed as trying to diminish the magnitude of the pain that befell the family and friends of Frank Hall ten years ago. "We're very sympathetic with the human tragedy that unfolded that day," explains Abrams, "but we still believe that anybody, including someone like Anthony Westley, [should get] a fair shot in proving that [he] didn't commit a murder."

And regardless of whether it was the fault of the prosecution or the defense, the trial judge says the fact that the jury was never told of the varying evidence in the Westley case was critical.

"Had the jury known that witness had changed her story, and that there had been a different story, my feeling was that's enough of a difference that the jury should have been told," maintains Lanford. "And it might have made the difference between a life sentence and the death penalty.

"Was Westley the trigger man?" Lanford continues. "I have no way of knowing. Apparently the jury in [the trial of co-defendant John Dale Henry] believed Westley had a .357 at one point. He couldn't have, obviously, had both [guns]. It's 50-50. It's either him or [Henry]. Fairly looking at the evidence of both trials, we can't say who killed that man. And if we can't say that, then maybe neither one of those two deserves to get out of prison any time soon. But maybe neither one of them deserves the death penalty either.

"When we execute somebody in this state," says Lanford, who is an advocate for capital punishment, "we ought to be able to look at each other and say we have done everything right."

Valerie Moore and Edith Sorenson contributed research to this story.


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