Edition: U.S. / Global

Murder by Texas

Published: January 5, 1995

Texas has just executed a man with full knowledge that he was not guilty of the crime for which he was put to death. State and Federal courts and the Supreme Court, also fully aware of the facts, let the execution happen.

Although Texas leads the nation in executions, the unjust killing of Jesse Dewayne Jacobs could happen in any of the 37 states that have the death penalty or states like New York, which are on the verge of adopting it. All it takes is a dishonorable prosecutor and a number of courts unwilling to demand justice for the accused.

In his 44 years Mr. Jacobs committed many crimes, but as the state concedes, he did not shoot Etta Urdiales in 1986. His sister, Bobbie Hogan, pulled the trigger as Mr. Jacobs, unaware that his sister had a gun, waited for the two women to end a quarrel. Initially Mr. Jacobs took the rap for his sister and falsely confessed to the shooting. The same prosecutor who used the confession to convict Mr. Jacobs vouched for his credibility seven months later when he testified that Ms. Hogan had shot the victim and that Mr. Jacobs had had no idea his sister intended to harm her. The prosecutor told the jury that he had changed his mind and was sure that Ms. Hogan had been the shooter.

Mr. Jacobs gave unchallenged testimony that he had forcibly taken Ms. Urdiales to the scene of the fatal quarrel. But it is doubtful that a fully informed jury would have decreed death for Mr. Jacobs had it known what the prosecutor knew -- that he was not the triggerman and was unaware about the weapon. His sister, indisputably the perpetrator and convicted as such, received only a 10-year sentence for involuntary manslaughter.

Honorable prosecutors often confess error in such circumstances, at least acquiescing in a new sentencing hearing before a fully informed jury. Not so the Texas Attorney General, Dan Morales. He relied on rules issued by the Supreme Court to limit the ability of death row inmates to raise constitutional questions. He argued, with technical accuracy, that "the prosecution's subsequently stated belief that Hogan was the triggerperson is not evidence, newly discovered or otherwise."

Courageous courts sometimes intervene to prevent such obvious injustice. Not so the Supreme Court, which rejected the Jacobs petition without comment and refused, over three dissents, to stay yesterday morning's execution. Only Justices John Paul Stevens and Ruth Bader Ginsburg called the judgment "fundamentally unfair."

Murder accomplices often try to pin the blame on one another, but Texas has been even more fraudulent, blaming two people for the same shooting, sending the guilty to prison for manslaughter and killing the innocent by lethal injection.

This is not the only occasion -- merely the worst in recent memory -- when a death-penalty case spins out of control because prosecutors, juries and judges share a dispersed responsibility that allows each to duck and avoid blame. Here, Texas justice, aided and abetted by the Supreme Court, is the ultimate instrument of injustice.