08/05/16 – Jordan Smith – The Scott Horton Show

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Introducing Jordan Smith, the heroic Jordan Smith, I mean to say.
For many years, an investigative reporter with the Austin Chronicle, and now writing for the Intercept, which reminds me and I realize that that means all three interviews today are with Intercept reporters on true crime stories.
Isn't that funny?
I got Murtaza Hussain and Trevor Aronson coming up on some FBI entrapments for you.
This one's not an entrapment, though.
This is Jordan's speciality, death penalty cases and questionable ones.
Welcome back to the show.
How are you?
I'm great.
Thanks for having me.
I'm very happy to have you here.
So I heard John Dudley and Bob talking about this guy who is about to be executed by the state of Texas at the end of this month, correct, Jeff Wood?
Is that right?
That's right.
That's right.
So the headline here in the Intercept, everyone, reads, Jeff Wood didn't kill anyone, but Texas is about to execute him anyway.
So I guess let's just start with why you feel so comfortable making such a declarative statement in your headline here.
Well, because Jeff Wood did not kill anybody.
And the evidence would suggest also that he had absolutely no intention of killing anybody.
But Texas has a sort of idiosyncratic law that says intent does not matter and you can be killed for a crime other than murder.
And I can explain how that works a little bit and tell you a little bit about Jeff's case.
First of all, you're saying the state, the state agrees, the prosecutors agree, the jury agrees that he didn't pull the trigger on anyone.
That part isn't even in question.
Absolutely.
There is absolutely no doubt that he was not responsible for killing anyone.
OK, so go ahead and tell us the story, however you like telling it best.
OK, well, it was January 2nd of 1996, and Jeff was in a car with an acquaintance named Danny Reneau.
And they went to a Texas station that Jeff frequented where a friend of his worked.
And that morning he was out in the car outside and Danny Reneau goes in and shoots Jeff's friend dead.
And Jeff comes in running in and Danny threatens the life of his daughter if he doesn't help to steal the safe and a surveillance, a video surveillance tape that caused the murder.
So there's the basic setup of exactly what happened.
Now, the reason that the state thinks that he's responsible is because there apparently was a plot that involved Jeff, that involved Danny, that also involved the Texaco employee, two Texaco employees, actually.
And it was a plot to commit a sort of inside job robbery that would have taken place the day before.
And the idea was that there would be a lot of cash on hand because of holiday bank closures.
So they were going to do this little robbery of the store on January 1st.
But the employees backed out and so did Jeff Wood.
And because they frequented this place quite often, there was nothing unusual about going there the morning after the robbery plot fell apart.
And so basically Jeff has said and maintained that he had no idea that Reneau intended to go through with this, what would be sort of an aborted plot.
But the state of Texas says that doesn't matter because they contend that Jeff that morning still did want to go through with the robbery, even though there really isn't any clear evidence that would suggest that's the case.
But the state of Texas has a law called the Law of Parties, which says that if one or more conspirator decide they're going to commit one crime, in this case, say a robbery, and the course of that crime, another crime is committed, and obviously that would be a murder, then everybody is responsible for the crime that occurred, the murder, regardless whether they had an intent to kill or an intent to actually commit that crime, because the law says that you should have been able to, you know, sort of think that that might have happened.
So that's the law that the state used to convict Jeff Wood and to send him to death row.
All right.
So now just the law in itself.
Let's start with that sort of makes sense, right?
Three guys rob a bank with guns.
One of them start shooting people.
The other two say, oh, geez, how was I to know that somebody could have got killed?
I say bury him under the prison, right?
That's the law in Texas.
That makes sense.
But it's but and it sounds like you're saying that if he really if if the government believe if the if the prosecutor's theory of the case was that really this guy was just sitting in the car waiting for his buddy to go get a pack of smokes and didn't know that there was going to be a robbery, that they wouldn't have charged him.
But their theory is because they had the story of the previous plot that had fallen apart.
They just kind of want to insist that he wasn't just waiting in the car, that he must have known what the other guy was doing in the store.
Is that basically it?
I think that's basically it.
I mean, I think that's basically their contention, you know, and obviously the the notion that you have to be able to hold accomplices responsible is is is is a common sort of legal principle, right?
And it's used throughout the criminal justice system in many different sort of context.
What's interesting and different about this situation is that it's applied in a capital case where death is the ultimate punishment, right?
And the Supreme Court has made it very clear.
I mean, that you cannot kill somebody who has no requisite intent that that happened or you did the very bare showing that you have to do to kind of pass the sort of constitutional muster that it takes to impose that capital sentence is that the person had to have this sort of in mindset that they had a reckless indifference towards life.
And really, in Jeff's case, neither is there, regardless what the state says about this plot.
He it's just it's there's just nothing there that would suggest that he had any intention of killing his friend.
Remember, this is his friend who gets murdered and there's nothing to suggest that he had any idea that that would happen or that he had any sort of reckless indifference and that would that would allow the imposition of of a death penalty.
And it's worth noting that since 1976, which we know obviously heralded in what we call the modern era of the death penalty, only 10 people have been executed who were not triggermen.
And if you look at those cases and notably five of them are from Texas, but if you look at those cases, there is a lot more involvement on the part of the non triggermen.
They either were involved in kidnappings and tortures.
They were involved in shooting at police while trying to resist arrest.
I mean, their culpability in the plot that ends up in a murder is really significant on its face.
Like you look at it and you're like, yeah, that's right there.
That's clear.
That person participated, you know, in this crime.
I'm not saying I necessarily agree that, you know, non triggermen should necessarily be eligible.
I think that's, you know, reasonable minds can disagree on that.
But what's so stunning is that when you consider the people who have been executed under this sort of theory of liability, they are vastly more involved.
When you look at Jeff's involvement, even if you were to say, okay, maybe he thought it might happen that morning.
It's just not there.
It's just really not there.
And so what you're left with is that basically he is going to be executed for robbery because, you know, he did help to steal the safe afterwards.
So he says he was threatened by Renaud, that Renaud actually threatened the life of his young daughter.
Which also, to be honest with you, is not unheard of.
I think Renaud was sort of a sort of drifter kind of guy.
And he had some troubling history of, you know, kind of committing burglaries and robberies and of sort of threatening people who were involved with them.
So, you know, Jeff's story kind of seems, you know, to sort of pass muster, I guess.
But like I say, it's just the facts of his involvement are just not there.
He did steal the safe.
He helped to steal the safe.
But that's a robbery.
And that's sort of after the fact, right?
So basically, at this point, Texas is going to execute somebody for robbery, which clearly runs afoul of constitutional protection.
And now you say that Daniel Renaud has already been put to death back in, was it 2002?
Exactly.
Yeah.
And that's the other thing.
Did he ever talk about this and say, yeah, it's true.
I just left him waiting in the car and he didn't know what I was doing or, yeah, I admit I threatened his kid or any of those things.
I don't know.
I don't think so.
And, you know, it's like one of those things where towards the end, he refused to make a last statement before he was executed.
Sometimes those are where we find those kind of things.
But he refused to make any statement.
So, you know, I don't know the extent of what he ever probably said about.
So, I mean, it's still it really is.
And I'm not trying to argue on the death penalty part of this, but just on the facts of the case here, we really still only have Wood's testimony, his own claims that he was threatened and that he had no idea what was going on with the robbery.
Or is there anything else in, you know, backing that up?
Well, you reference that this guy had made other threats before.
So that's something.
Was there anything else there?
I think there's some there's some information that prosecutors apparently elicited when trying Renault that they then blocked Wood from being able to bring up at his trial, which is this.
The morning that they of the murder, when they're leaving, Renault was going to grab a gun.
OK.
And Jeff was like, no, what are you doing?
You know, and and saw Renault put the gun down underneath a cushion on a couch.
And then they left.
And then he left the room and left.
Well, somebody else happened to be in that room, saw all that happen.
And so what Jeff did not know was that Renault actually picked the gun back up and took it with him.
Now, Jeff did not know that.
And like I say, prosecutors elicited that testimony to prove Danny's intent at his trial.
But when Jeff comes up for trial, you know, they want to obviously invoke that to demonstrate that he didn't know and they blocked him from being able to do that.
So there's some stuff like that, you know.
And there's also you're saying the prosecutor, pardon me, the prosecutor objected to the defense trying to use this testimony from the other guy's trial, the sworn testimony that they had seen this defendant tell the other guy to leave the gun there and leave the room before he picked it back up again.
Yeah, because that sounds like that could get you off death row right there if there was anything like justice and a rule of law or any of that.
Well, yeah, they blocked that.
I mean, there are other, you know, there are other factors to the case that are disturbing.
You know, Jeff has very low intellectual functioning.
He has an IQ, I think, with about 80.
He had some severe sort of emotional problems, like I think somebody described him as sort of a child in a man's body, but that's the other thing I think that you have to take into account when you think about somebody having intent.
They have to have a culpable sort of mental ability to perform that kind of intent.
Right.
And I think there's some suggestion that, you know, it would be hard for him to do that.
You know, I don't know.
I wasn't there.
But I think that's just one thing to take into account, too.
And there's a lot of that stuff never came out of the trial either, because, for example, you know, Jeff, before he was tried for he when they first tried to put him on trial, he was deemed incompetent.
And so they had to wait till he gained competency back to be tried.
And then after he is convicted, but before the punishment hearing, which is basically where, you know, where the where the sentence is decided, he decides he wants to try to fire his attorneys and represent himself.
The judge says, you know, essentially, you're not competent enough to to represent yourself.
But he did not actually explore any further whether Jeff was competent to even proceed at that point.
Right.
And there is definitely indication that he might not have been because he couldn't really aid his defense.
He basically told his lawyers at that point not to raise not to put on any witnesses and not to cross examine any of the state's witnesses.
And obviously, this is problematic because punishment is where we we get all the mitigation evidence, you know, evidence of his intellectual problems and other kinds of things that could come in that would maybe say to a jury, OK, this guy does not deserve a death sentence.
And it also allowed the state like really, really inflammatory evidence that would suggest that Jeff would be a future danger to stand unchallenged.
And, you know, people who are familiar with Texas death cases are probably quite familiar with Dr. James Creekson, otherwise known as Dr. Death, who basically was barred from the American Psychiatric Association and Texas counterpart for serious unethical behavior.
And that is essentially taking sort of, you know, proposed scenarios and determining without really evaluating the person that that person would be a menace, you know, society and left executed.
And that's exactly what he did in this case.
He took a hypothetical, you know, robbery, murder that the prosecution suggested to him.
And he deemed that Jeff would definitely be a future danger unless executed because he didn't wear a mask to this robbery, murder and therefore knew that he was going to kill the clerk because if he'd worn a mask, then he could hide his identity and a person wouldn't have to die.
So, I mean, that is just the sort of testimony that that Dr. Death would would kind of suggest.
And then obviously that stood unchallenged in Wood's case because he directed his attorneys not to do anything during the punishment phase.
So it's not at all as you're saying goes right to his competence to even stand trial in the first place.
That sounds like he had a fight with his lawyer over something and then he just threw a temper tantrum and like in a childish way said, well, I don't want you to do anything else.
But not understanding that this is the sentencing phase of your trial and and if we don't put on a defense, they're going to give you the needle.
I mean.
Right.
You know, I don't know.
Let's say his IQ wasn't 80.
Let's give him 15 points.
Let's say his IQ is 95.
He's still clearly here throwing a childish tantrum and a fit.
And the judge allowed this for the defense to sit there and not say anything during sentencing at all.
Yeah.
And if you read that portion of the transcript, it's upsetting.
You can kind of see that the lawyers, the defense lawyers are really kind of feeling like they're in a great pickle here.
You know, they want to do the best for their client.
They don't want to sit here and and not do anything.
They really can tell.
They're like trying to figure out a way to, you know, to avoid what happened.
But it didn't work, obviously.
So that's why Jeff Wood is on death row.
And, you know, the thing that's actually, to me, most stunning, and I cannot quite figure out why this is, although I imagine it's because of deficient lawyering in the appeal process, the early appeals process, is that the question of whether this punishment fits the crime has never been asked.
And like I said, there are two Supreme Court cases that speak directly to this kind of situation.
And when you read those cases and you look at Jeff, you think, hmm, if a court were to apply these precedents to this case, it's so unlikely that that ultimately they would find that death was warranted for the, you know, sort of after the fact robbery participation that would have here.
Yeah.
You say in the article that you asked the lawyer about this and they were like, oh, yeah, I guess we could appeal based on that.
Right.
Well, the lawyers now say, you know, that they really think the court should hear that argument.
I mean, yeah.
No joke.
Right.
I think so, too.
Are they making it?
That's the question.
All right.
They should have heard this argument years ago, because it's not as though these Supreme Court cases were, you know, subsequent to Jeff's conviction in 1998.
In fact, they're both from the 80s.
Well, the first one came in 82.
The second one came in 87.
So this was already established law by the time that Jeff is convicted and going up for his first appeal.
Now, why no one ever made that claim, I have no clue.
And obviously, you'd have to figure that it's ineffective assistance of counsel to not have raised the most obvious questions.
Right.
And now it's sort of I'm a little confounded by what's going on now as well.
I don't understand why that's not being raised and has not been raised at this point.
I think it seems clear that his current attorneys want that question to be answered.
But and I assume that they're working on that.
But, you know, it was a little mysterious to me, my conversation with one of the attorneys that represents him now.
I mean, I think maybe they're just holding their cards close to their chest.
But, you know, the fact of the matter is that we're seriously running out of time.
I mean, he is set to be executed on August 24th.
I got to say, I'm kind of confused about that.
I wonder if there's some sort of weird snafu or incentive preventing them from taking that step that we can't see from here that I don't know.
You know, maybe someone needs to call them and tell them the Supreme Court's mailing address.
I mean, I don't I really don't get it.
I mean, I I would hope that in the next, you know, maybe week that we will see some movement there.
But I do know that just the the day actually that I think Tuesday on Tuesday, they did file a writ seeking a new punishment hearing for Jeff, basically raising the issue that we already discussed, which is this sort of unchallenged testimony of Dr. Jeff.
The competency issue around, you know, what happened because he basically fired his lawyer so that Dr. Grigson's testimony went unchallenged.
That is other information, I think, like relating to the gun and the testimony that was excluded in his trial.
You know, all these things that have never been addressed.
And so they're seeking a new punishment hearing.
But again, that doesn't challenge the basic, you know, problem here, which is, does robbery deserve execution?
I mean, and and frankly, it doesn't.
And the Supreme Court has been clear on that, you know, since they reauthorized capital punishment in 1976.
You know, and then the cases, the 82 and 87 case basically refined that.
But, you know, they have said since the 70s or, you know, what, 40 years now that robbery does not equal death.
So it's just troubling that we're this close.
And, you know, frankly, because here's the deal.
Do you think Texas is going to stop this?
I really don't.
You know, it's up to Governor Abbott.
And I don't have any faith that he would stop this.
Yeah, I just don't.
So it's really up to the lawyers at this point.
And, you know, as you were saying, it's not entirely clear what they're doing.
Yeah.
Well, you know, as I mentioned, I heard you on that other radio show and they were a little flabbergasted that, hey, isn't justice supposed to kick in here somewhere and something's supposed to happen where this kind of thing doesn't happen?
Right.
And you said, well, you know, finality is a real big deal to the court system.
And I'm sorry.
I know I'm a broken record on so many things.
I forget whether you and I have spoken about this before, but in the back of my mind, something tells me that we have that you even knew the quote of the the famous quote of the judge from just a few years ago here in Texas, saying that finality is the most important thing of all.
And because otherwise, you know, if people could question the decisions we make, then we might not be able to still be judges at all anymore, jeopardize our power.
If they can keep questioning us, you only get to question us once or twice and that's it.
Well, you know, I think there's a sort of persistent misconception that people have that and it's understandable why is that basically that the system would never, you know, keep incarcerated or execute somebody that's innocent, because certainly that will sort itself out.
Right.
Like it's certainly the mechanisms are there to sort it out.
That just can't happen.
Now, obviously, we know it does.
And the question is, why?
And the why is because of finality, because once you're convicted, it's considered that that's a done deal.
And so in order to actually challenge that conviction, you have to have something really overwhelming.
You have to have like major constitutional violations or new evidence, you know, like DNA evidence that links somebody else.
And we've seen that with like DNA exonerations, like just how wrong we've gotten stuff.
The problem is, is that, you know, the number of cases, particularly as you go further back, that have biological evidence that can be tested are just a very small fraction of the total number of people who have been incarcerated.
And when you consider that it's very hard, absent, you know, some glaring constitutional violation or some sort of DNA like evidence to get back into court, you know, you just have to think about the number of people who are just sort of languishing, who are not responsible for what they were convicted of.
And in so doing, in incarcerating those folks, you're obviously allowing the person who's actually responsible for that crime to go free.
And, you know, that's something that should be disturbing to all of us.
I mean, I think another big problem, of course, is that because of the finality, unless you are convicted and sentenced to death, where an entire chain of appeals, you know, kicks in, as does your right to be represented by counsel on those appeals, unless you're on that death penalty train, you really have no means to appeal successfully.
So if you're doing life without parole for something you didn't do, you don't have a right to counsel on your appeals.
You're just not the same as with a death case.
So people don't understand that either, that it really takes, you know, an extraordinary amount of resources to try to help people.
And they're obviously limited in their ability to to reach out to try to get that support.
You know, that's why we see like outstanding cases like in Dallas, where the new D.A. came and said, it's a whole new day.
Let's review all our cases and find out whether we've been convicting guilty people or people.
And they went back and did it.
And he decided, I guess, just he didn't have it was it was some old dead D.A.'s problem or whatever.
And he was just going to go ahead.
But that's unheard of.
Right.
And that led to probably scores of people getting out of jail, really, on the drywall, the gypsum drywall scandal and the fake drug charges and many other things.
Well, and that's the thing, too.
The amount of power invested in prosecutors is enormous.
I mean, they are absolutely the top.
You think the chief of police is the top law enforcement officer?
Absolutely not.
The prosecutor of whatever jurisdiction is the top law enforcement officer.
They have literally basically unchecked power.
They can decide which cases go forward and which don't.
And of course, obviously, because the way the rules of evidence work, they have all the evidence they are required by law to turn it over.
But we know time and again that evidence that is beneficial to a defendant is not turned over.
So they have a really unchecked power in the system.
And that is something that people, criminal justice reformers, have been trying to handle forever.
How do we put reins?
And how do we actually make sure that they hold up to their legal and ethical obligations?
And to say that prosecutors across the country have fought back against such reforms would be an understatement.
They don't care for those.
I mean, actually, here in Texas, we had sort of the unprecedented holding accountable of the prosecutor that was responsible for Michael Morton's conviction and Michael Morton's exoneration and actually prompted some changes to the law to make it easier for wrongfully convicted individuals to kind of go after prosecutors.
But still, you know, that's yeah, well, and that was notable because he did one day in jail and I think that was suspended.
And it was the first prosecutor in American history ever who'd been convicted of framing and falsely prosecuting a guy.
There were no other examples that the guys could say.
Am I wrong about that?
I think that's right.
I mean, I think that's right.
And that was just a couple of years ago or something, right?
What year was that?
Yeah, exactly.
And another part of the problem there is that, you know, in order to show it's just sort of a catch 22, right?
OK, so they have all the power, you know, and they have all the evidence.
And if they don't turn over something to you, you know, how do you it's sort of like, how do you prove that they did something wrong when they're the ones holding all the all the all the evidence?
Right.
And it's very hard to do unless you're absent from glaring like stuff like in the Morton case.
It's like, still, we've got this new law, but it's still not that easy to hold them accountable because, again, showing that they that they engaged in misconduct would mean that you have some ability to get inside where they are and ferret out that misconduct.
You know what I'm saying?
So it's sort of like it's sort of an impossible situation, except for in the most extreme circumstances.
Well, you know, you mentioned there's there there, you know, increase that led to the conviction of that one day led to the ability of people to try to get more accountability.
But you think about if there's really if there ever was a system of accountability for the cops or the prosecutors or the judges who oversee these charade trials, then they would just abolish appeals altogether, then we kind of got them.
We got to keep giving them their get out there, get out of jail free card so that anybody ever has a chance of getting out of jail, you know, right, right.
So let me bring up one more here, because this is the one that this is not the one.
This is one that I think, you know, will get under people's fingernails real quick.
And, you know, if they read your articles at the Intercept about Lester Bauer, where you make it.
Well, let me just say I buy it, OK?
So your narrative here is very clear that his lawyer had a theory of the case that was so transparently false that and he couldn't stop his lawyer from going through with insisting he wasn't even in the county at the time when, yeah, he was.
And he could have he would have gladly admitted this much of the story is true, just not the killing people part.
But his lawyer screwed him.
And it's as simple as that.
It's as obvious as that.
So the jury believed the prosecutor's theory of the case and gave this guy the death penalty.
But he really didn't murder anybody.
And it's pretty clear he didn't murder anybody.
But because of the finality thing, because of the refusal of the political system, really, as much as the judicial or criminal justice one to say, hey, might have done something wrong here.
They went ahead and gave him the needle.
Yeah.
Well, you know, and to that point, it's like, OK, there's not only great, you know, the great power of the prosecutor, the courts have also greatly protected bad defense attorneys feel like the standard for proving your defense attorney was deficient.
It's like multi-pronged and pretty hard to meet.
And you know, and also it's sort of like a lot of it is just so if I give you I'm a crappy lawyer and I do something like that.
Right.
And you have a new lawyer who on appeal, you know, says makes an ineffective assistance of counsel claim against my lawyering.
Well, then what am I going to do?
I mean, it basically in many ways take me saying, you know what, I totally did screw that up and falling on the sword in order to get the kind of traction that you need.
But that doesn't happen because they're not going to do that.
I mean, I have seen over the years lawyers and sort of in certain circumstances fall on their sword in that way, but it is so exceedingly rare.
And so all the actors in the system essentially protect one another.
And so it's a really big problem when you consider sort of travesties of justice that institutional actors.
And you're right.
It's political very much as well.
And so all these people are protecting their own interest and it becomes very hard to sort of break through that fog, I think.
All right, so that's the heroic Jordan Smith for many, many years for The Austin Chronicle and now doing investigative journalism for The Intercept.
Thank you so much again for your time, Jordan.
Oh, thank you for having me.
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