06/03/15 – Jordan Smith – The Scott Horton Show

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All right, I got Jordan Smith on the line.
She is the legendary and heroic investigative journalist from the Austin Chronicle.
Boy, did she debunk the yogurt shop murders and the story of Rodney Reed, who his death sentence has been postponed, although I don't think commuted.
Oh, and she did the one about the murder in Las Vegas.
Very, very good one there.
And now this one is about a guy named Lester Bauer, who was convicted of murder way back in 1984 and sentenced to death.
And he still hasn't been executed, and we're going to see whether he is or not.
Welcome back to the show, Jordan.
How are you doing?
I'm great.
Thanks for having me.
Very happy to have you on the show.
Very happy to have you on the show.
So who is Lester Leroy Bauer, and what did he do?
Or didn't he?
Yeah, well, that's the question, right?
So Lester Bauer was a family man who was living in a suburb of Dallas back in the early 80s.
Chemical salesman, never been in trouble with the law before.
Kind of got interested in ultralight flying, you know, those little fixed wing aircraft that were kind of big back in the day.
They're kind of propelled by lawnmowers, motors.
And he wanted to buy one.
His wife didn't want him to.
So he kind of went behind her back and went to go buy this ultralight aircraft from a guy out in Grayson County, which is sort of near the Oklahoma state line.
And the day after he's there to buy the aircraft, four men who were in the airplane hangar where he went to purchase it, wound up dead, shot execution style in the head, and left under a piece of carpeting in the hangar.
So he was eventually convicted of killing those four men.
That's the short of it.
All right.
Well, now, so first of all, hey, he was there.
He admits that he lied about whether he was there or not.
Got a problematic problem right there.
A couple of problematic problems.
So what else did they have on him?
Because they must have had more than that.
Yeah, because for some reason and still not entirely clear to me, but the FBI got involved very early on in this investigation.
And so the FBI found that he had called one of these men several times.
And when they came to talk to him about it, he initially lied about it.
Then he ultimately admitted that he had talked to the guy, but denied also being out at the hangar and denied having purchased, you know, having taken the ultralight, which, of course, he did that as well.
Now, he says he lied because he was afraid.
He's like, oh, my God, I left.
And then these guys are killed.
Maybe the killer or killer saw me.
I have two young daughters.
I don't know.
I don't want to put our family in jeopardy.
That's to say that's the reason he said he lied.
But the state said that he was also implicated because there was some supposedly rare 22 ammunition, the Fiochi ammunition, which is Italian, that were the shell casings were found at the scene.
And so they said, you know, Bauer, who is a federally licensed firearms dealer, was one of the few people who in America who had purchased this ammunition.
So that kind of drew a direct line between him and the murder.
And so he was tried.
And basically, that was it.
He didn't have a very stellar defense, at least by, you know, on the plain face of it.
He really wanted to testify at his trial and explain why he lied and explain that he, you know, actually went there legitimately to buy the thing.
And his defense attorney very early on, just like two days after Bauer was arrested in January of 1984, adopted a strategy that he maintained throughout the trial, which was my client was never in Grayson County.
And so that became sort of untenable because they could show that he had lied, you know, about being there.
And so the defense strategy was he wasn't there.
And so if he wasn't there, then he can't testify in his own defense.
So they sort of blocked his ability to testify.
And so that, combined with this ammunition, which he did actually had purchased this ammunition, and the fact that he had pieces of the ultralight and had been at the hangar, all is very compelling.
And I'm not really surprised that a jury, given only that information, would find him guilty.
All right.
Well, so what's changed since 1984?
So a lot has changed since 1984.
In the intervening years, he has, I have to say, he has a defense team now that have been working pro bono on his case for 26 years, which is just kind of mind-blowing if you think about it.
But about five years after he was convicted and sentenced to death, his defense team began to get some documents from the FBI that were never released to the defense.
So it was a clear Brady violation.
They did not release information that they're required by law to release.
And that is, essentially, that the FBI knew that this Stiochi ammunition was far less rare than the state had presented at trial, and that Les Bauer was hardly one of the only people to buy it.
They also kind of had drawn at trial this sort of picture that the Stiochi ammunition is used only for killing people, when they know, actually, the FBI documents that later came out, starting in about 89 and 90, revealed that it is actually marketed for use as small game hunting and for target practice and all the kinds of things that most ammunition is used for.
So there's that.
Another thing happened, too, is a woman in North Texas read an article about Bauer's attorneys filing an appeal at his case and realized that she knew who the actual murderers were and that Les Bauer was not one of them.
And so this woman, whose identity has been protected by the courts, she's known sort of in the papers as Pearl.
Pearl came forward to say that in 1983, she was in a relationship with a known drug dealer and that he had basically confessed to having committed these murders, along with several other friends.
She overheard conversations that they had about it, and she's remained remarkably consistent in her story since 1990, since 1989 till now.
The courts have heard that, but they've sort of been like, eh, not that compelling, even though her story has also actually been corroborated by other people, including by the wife of one of these alternate suspects, who said that she, too, knew that her husband had been involved.
And also, one of the alleged actual perpetrators told a defense investigator at some point that he, in the 1980s, owned CO2 ammunition, which he used with his .22.
So there's three compelling alternate theories, and that the murders, they alleged that the murders were committed over a drug deal gone wrong, that one of the men, the man who was actually selling the ultralight plane, had been involved in drug dealing, and that this was just really the result of a bad drug deal, which, in a way, makes a little bit more sense.
Uh, yeah, rather than this seemingly normal guy with no criminal history murdered four men in cold blood to steal their ultralight.
Yeah, I mean, exactly.
And, you know, there's a couple, it just doesn't, it's sort of a little bit, you have to, that sounds, I mean, I can see why they would convict him based on the stuff they had, because it's like, that's crazy, you know, that sounds terrible, what a callous and horrible.
Right.
But it's a far less sort of, you know, compelling narrative than the alternative, which is drug deal gone bad, execution style hits.
Yeah, it makes it that much worse when this story doesn't make sense at all.
Why, he must just be a monster to do such a thing.
Right, exactly.
You're right.
You got it.
That's exactly it.
Yeah.
Now, I think you got to the answer to the question of why was the FBI involved all along is because they knew what was going on with this local drug ring.
Maybe they were investigating it, maybe one of the dead guys was one of their guys.
Well, that's a compelling possibility.
I don't know that there's any thing to suggest that one of the dead men was related to the FBI.
However, two of the men were actually former law enforcement officers.
So that's, you know, and that's the other thing, actually, that people point to, to the idea that Bauer was the doer is sort of impossible, right?
Because you have this man, Bless Bauer was a big guy at the time, he was about, you know, six feet tall, about 250 pounds.
But the idea that he would come in on his own and be able to take down four men in an airplane hangar, two of whom are former law enforcement, with sort of these double taps to the head.
And it just, it's sort of, again, it's kind of a little unbelievable.
I don't know how he'd get the drop on four guys, two of whom are, you know, arguably trained in how to deal with aggressive threats, right?
Yeah, you know, I'm curious about, in the prosecution, well, now we gotta go to break.
I'll ask him a question about the prosecution.
I need to do better with that clock.
It's Jordan Smith from No Longer the Awesome Chronicle.
Now she's at The Intercept, and this one is about a guy on death row named Lester Bauer, who might not have done it and might get killed for it anyway.
Hang tight.
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All right, guys, I'm on the phone with Jordan Smith, investigative reporter for The Intercept, and we're talking about the case of this guy, Lester Bauer, death penalty case.
He's been on death row since 1984, and he's almost at the end of his line, and yet all kinds of new evidence has come out.
But the question I wanted to ask you when we had to go to break there, Jordan, was about, I wonder, when you said there are two of the guys, two of the victims were former cops, I wonder how much that featured in the prosecution, you know, in their narrative of the story, that these are, you know, our heroes, our valiant guys or whatever.
And only because it's always curious to me when I see cases where innocent people get convicted of killing cops, because it seems like if they're ever going to try real hard to make sure that they got the right guy, it would be when it's one of their own gets killed.
But it seems like they're always just perfectly happy to prosecute whoever they can get, rather than the guy that maybe actually really did the thing, even when it's their own, you know, brother in blue and all that.
No, in reading the trial, you know, it's interesting.
They didn't actually play up the former law enforcement angle very much.
But to be honest with you, I don't know that they would have had to, because it's a very small community.
So I think a lot of people kind of had a sense of who these people were, and it didn't need to be hammered on.
But I think your point is absolutely right.
And I think part of the problem with our capital system is stuff like this happens, right?
If we're going to have a capital system, then it would be very advantageous to have all the questions answered before we put someone to death.
And here it's just troubling, because there's this, you know, really far more plausible, it seems to me, alternate storyline that the courts have considered and have found compelling.
I mean, they're, you know, in a court ruling, one of the state judges who heard all this evidence the most recent time, which I think was in 2012, he ruled that, yeah, this is compelling stuff, but it doesn't clearly demonstrate that Les Bauer is actually innocent.
And so therefore, you know, kind of no harm, no foul, there's nothing we can do.
Right, because now that he's convicted, the burden of proof is on him by some super majority standard, rather than the way it's at least supposed to work in a pettit jury trial, right?
You're right.
You're right.
Absolutely.
Now, so he doesn't just have to say, now, I mean, this is an important thing, because this threshold is so high, this legal threshold is so high, when they're going to kill this guy.
Right.
And he's got two, he's got a wife and a girlfriend, I think you said, who, you know, say that, yeah, the actual people confessed to me that they did it, told me all about it, told me about the nightmares they had about it, all this stuff.
And, and so the, and a judge even said, yeah, hey, that sure sounds like...
That's pretty compelling.
Yeah, that might well be what happened, but you would have to satisfy, the lawyers would have to satisfy the judge that there is no effing way he could have been convicted if only his lawyers had been allowed to put on this defense, right?
And anything short of that, and he hangs.
Right.
So you've got, so you have a couple of things, one with the Brady violations, the withholding of the evidence, and also the claim that this defense attorney was, you know, ineffective and rendered a pretty crappy defense.
You know, the bar is, you have to prove that that stuff was, was there, but not only that, but that, but for that misconduct, the outcome of your trial would have been different.
And essentially that's a really, really high standard to me, right?
So like, if the state can say, well, you know, no, it wasn't really that important.
And that's usually what wins the day.
And, and as to the, you know, proving he's innocent, it has to be, yeah, clear and convincing and kind of have to, you know, overcome this idea that this other, maybe not as plausible theory, but the one that the state advanced is just demonstrably wrong.
And so, yeah, it's a really, really difficult hurdle to overcome.
But yeah, there is one could get some relief.
I mean, this is his eighth execution date.
And unless the Supreme court steps in, he will be executed tonight after six o'clock PM in Texas.
So, but there is, there's another kind of little wrinkle, which is that he was sentenced here under an old sort of sentencing scheme that didn't allow for a real way for jurors to take advantage or to consider mitigating evidence.
And so the courts have kind of gone back and forth on whether Les Bauer should be granted a new sentencing hearing.
Actually the district court ruled that he should, and the appeals courts have said no.
So it's really up to the Supreme court now.
And this question has come to them once before on Bauer's case and the majority denied his relief.
But three of the justices wrote a very compelling dissent as to why he should be granted the relief.
And we're kind of back up there again with the same question today.
So it'll be interesting to see if that three judge dissent can turn itself into a majority.
And then still as important as that is, right, for his lawyers to be able to say, hey, this is a friend of the community, always has been, whatever.
He's not some kind of serial killer or whatever, et cetera, for him to not be able to make that case before and for him to have the chance to make that case now.
That's important.
I could see that, but still as huge as it is, it's just a technicality.
But when it comes to even the Supreme court, the threshold for him having to prove his innocence here is no different.
Do I understand that right?
Right.
Absolutely.
You're absolutely right.
And it's even a little bit more, yeah, it gets even more confusing on the federal, once you get to the federal level, but it is worth pointing out that if he can get this new punishment hearing, that I think that, well, first of all, it's hard, I think they'd maybe be able to bring some information in that may be able just to be a little bit more convincing to jurors.
And at the very least, although it's not ideal, obviously, it spares him his life.
And so maybe that affords him some opportunity to fight on and try to prove that he wasn't the one that actually did this.
So, I mean, while it's not ideal, it does spare him.
And now, I believe you said in here that you did get comment from his defense lawyer at the time at one point, right?
And he refused to concede that he'd made any serious mistake in his strategy here, is that right?
He was called, I didn't talk to him, he was called actually as a witness in an appeal based on the ineffective assistance of counsel.
And he testified that he did a good job.
He testified about all the reasons why he adopted the strategy he did.
He sort of denied that he failed to do investigation.
He denied, you know, he denied basically all the allegations that he was ineffective and that he was deficient in his defense of Les Bauer.
And the state of Texas, of course, has agreed with the defense attorney's self-assessment of his own work.
And the, you know, because of what we were talking before, because of the kind of really high burden to show that what he did wasn't actually reasonable.
That's why he hasn't gotten relief on it, because the courts have said, well, you know, he says he didn't do a bad job.
And, you know, it looks like he might've had some reasons for doing what he did.
It was his strategy and we can't over, you know, it's hard to overcome legal strategy decisions.
And that's essentially where that kind of lays.
Yeah.
Well, and of course, because all the judges are lawyers too.
All these guys are together.
And a good point.
And yeah, and of course, you know, the truth and the justice of all this gets completely lost in those kinds of politics.
Unfortunately.
Yeah.
All right now.
So yeah, I guess really, that's a good enough place to end it.
And hey, there's the music.
Anyways, the lawyer refusing to take responsibility for putting on a completely, easily disprovable defense that he wasn't even there when he admitted he was there.
But just under different circumstances.
I mean, I don't know if I was a judge, I would say that would be reason enough for review right there.
But anyway, it just goes to show.
Thank you, Jordan.
Great work as always.
Hey, thanks so much for having me.
I always like beyond.
Great.
That's Jordan Smith.
She's at the Intercept.
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