The Fatal Flaw in Jeffrey Matthews' Defense

On 22 January 1994, Earl Short (77) was shot dead during a burglary of his house. Minnie Short (75) suffered a slashed throat but survived.

Jeffrey Matthews

Jeffrey Matthews is scheduled to be executed on 11 January 2010. The people of Oklahoma decided that he was the person who shot and killed Earl Short. They also decided that Matthew's accomplice, Tracy Dyer, slashed Minnies's throat.

The evidence against Tracy Dyer was substantial. His fingerprints were found at the scene. He placed a phone call from the crime scene to his uncle (who was also his employer) explaining he would be late for work because he had car problems. He confessed to the crime.

Tracy Dyer is clearly guilty of the crime, but he is not scheduled to die for it. Because he implicated Jeffrey Matthews, at least initially, he was spared the death sentence. Instead, he was sentenced to life imprisonment without possibility of parole.

On the other hand, there was no evidence to place Jeffrey Matthews in the house:. None. No fingerprints, no DNA, no phony baloney hair samples, no convenient carpet fibers. Nothing. Most significantly, Minnie Short heard both attackers speaking and she did not recognize either voice as that of Jeffrey Matthews. That makes it unlikely either attacker was Matthews, since Minnie Short was Jeffrey Matthews aunt and she had known him since childhood.

Also troubling was Tracy Dyer's recantation. After initially implicating Matthews as the second attacker, Dyer recanted. At risk to his own plea deal, he affirmed that Matthews was not in the house but he refused to identify the other person who was. Though Dyer refuses to identify the other person, I'll take a shot at it. The other person in the household, the one who shot and killed Earl Short, may have been Tracy Dyer's uncle, Wayne Clary.

I caution, however, that there is no evidence placing Wayne Clary in the house that night, just as there is no evidence placing Jeffrey Matthews there that night. The difference is that Wayne Clary is expected to awaken some time on Wednesday the 12th. Jeffrey Matthew is not.

I did learn of some evidence tying Jeffrey Matthews to the crime. A prescription bottle of medicine belonging to Minnie Short was found in Matthews house. Three one-hundred dollar bills were found in his freezer. A gun stolen from the Shorts' house was found buried near Matthews' back yard, as was a second gun. The second gun was the same one that fired the bullet that killed Earl Short.

Matthews claims Dyer gave him both the money (for drugs) and the medicine. Matthews claims further that the guns were planted, and I'll be darned if there isn't substantial reason to believe him, at least about the guns. His yard and the area around his yard were searched, and no evidence of fresh burial was noted. Crime scene photos show one officer standing almost directly over the spot where the weapons were later discovered.

Five months after police failed to notice any sign of fresh burial, neighbor Ted Mize was cutting tall grass with a machete when he saw freshly disturbed dirt forming a hole he describes as 3 to 4 feet long and one and a half feet deep. Mize had viewed that area just days earlier and had not seen the hole at the time. He stuck his machete into the dirt and felt a solid object. He fetched a shovel and found a gun with the first shovel full.  He had found what turned out to be the gun stolen from the Shorts' house. He called the police. The deputies who responded to his call found another gun, later identified as the murder weapon. Neither weapons showed evidence of having been buried for five months.

Based on such troublesome evidence, I suspected that Jeffrey Matthews was another factually innocent person on the verge of execution. I even alluded in a New Year's Eve post to the impending execution of a person likely innocent. Speaking of Johnny Wayne Garrett, Francis Elaine Newton, and Cameron Todd Willingham, I wrote:

Those three people died in vain. We have not learned from the injustice we inflicted upon them, and injected into them. We are going to do it again.

We are going to do it again in twelve days.

I promised to write of the case on New Year's Day. Before the old year was out, I was chastened. I had passed judgment prior to collecting all the facts. As I continued to research the case while rational people were out celebrating, I came across a footnote in one of the appellate decisions. It troubled me and I slept little that night because of it.

I realized I would be assigning a low Actual Innocence Score to Jeffrey Matthews, even though I was more convinced than ever he was not in the house that night. I believed instead, after reading the footnote, that Jeffrey Matthews had helped plan the burglary that took the life of his aunt and uncle. Based on the definition of actual innocence I use in my scoring, I could not find Matthews to be actually innocent of a crime he helped plan.

I continued researching the case on New Year's Day. It was only then that I came across a YouTube video of Jeffrey Matthews confirming what I had figured out independently. On the video, he continues to insist he was not in the house that night. I believe him. It seems obvious from the evidence.

Matthews then informs us that he did in fact participate in planning the burglary. I believe him. I had figured that out on my own.

Because of that one footnote on found just a last year came to a close.

I recall being pissed when I watched the video. I realized I had been duped. I had committed myself to an untenable position on my own blog. I'm still pissed, but now I realize I only myself to blame.

I believe it is now fair for me to claim that I have considered both sides of the Jeffrey Matthews case more thoroughly and more fairly than most people have. Therefore, as part of my mea culpa, I'll attempt to lay out the events as they happened in the Jeffrey Matthews case, as best as I can recreate them using the admissions of the defendants and the evidence of the state.

An Earlier Burglary

Somewhere between one and three months before the murder, Jeffrey Matthews, Tracy Dyer, and Bryan Curry burgled the Shorts' residence. They entered an outdoor, detached storm cellar, removed an item from in front of a jar, removed approximately $7500 that Earl Short had hidden in the jar, replaced the jar, replaced the item in front of the jar, and left. They disturbed nothing else. They knew what they were after and they knew where it was hidden.

Bryan Curry testified at Matthews trial about his involvement in the first burglary, and the involvement of Matthews and Dyer. Matthews initially denied his involvement of that initial burglary, but now concedes he did participate.

Someone clearly had inside knowledge of cash hidden somewhere on the Shorts' property. That someone was the nephew of Earl and Minnie Short, Jeffrey Matthews. Unfortunately for Earl and Minne, their nephew believed there was still much more hidden on the property, as much $70,000 more.

The Plan

Jeffrey Matthews conspired with at least two others to locate and steal the Shorts' hidden reserves. One of the other conspirators was definitely Tracy Dyer. A second conspirator was probably (but not certainly) Dyer's uncle, Wayne Clary. Matthews now admits to that.

There is no evidence that Bryan Curry, who was admittedly involved in the initial burglary, conspired or participated in the second.

I believe there is an unresolved issue with regard to Mark Sutton. The day after the murder, Mark Sutton (conveniently) filed a report with the Sheriff's office that his .45 caliber pistol had been stolen and he thought Jeffrey Matthews had stolen it. In Matthews first trial, Sutton changed his story to indicate that he had loaned the pistol to Matthews.

Matthews would end up telling a substantially different tale. Matthews would eventually claim that Sutton worked as a manager at Walmart, stole guns from there, and relayed them to him (Matthews) for resale. Matthew concedes that on the night before the murder, he provided Dyer with the murder-weapon-to-be, one of the guns he had obtained from Sutton for resale. Keep in mind that the murder occurred not long after midnight. That means Matthews provided the murder-weapon-to-be to the confessed murderer just hours before the murder.

Matthews claims he sold Dyer the gun as part of a routine business transaction, unrelated to the crime, for $300. He claimed he placed that $300 in his freezer, and that explains the $300 police later found there. Initially, as you may recall, Matthews claimed the $300 freezer money was provided by Dyer as an advance on drugs to be provided.

At this point, we have Matthews conceding that he burgled the house previously, that he believed there was substantially more money to be found there, that he conspired with at least two others to find and take that money, and that he provided one of the others with the gun that would, within hours, be used to kill his aunt and uncle.

The Pickup

In the early morning hours of 27 January 1994, Tracy Dyer and one or two accomplices hopped into Dyer's pickup and headed out to burgle or rob Earl and Minnie Short of their savings. One of those accomplices may have been Wayne Cleary, Dyer's uncle. Once of those accomplices may have been Jeffrey Matthews, low-life.

This is where the footnote comes in. After Matthews was arrested he gave a statement to OSBI Agent Lydia Williams. The statement was obtained with something less than normally-accepted constitutional safeguards, was used nonetheless in Matthews first trial, and thereby caused the first conviction to be reversed by an appellate court. That appellate decision described, in a footnote, the essence of Matthews' initial statement to the police. I present that footnote in its entirety:

Agent Williams testified that Appellant told her he was home the night before the murder. Early that evening Tracy had come by and the two of them worked on Tracy's pickup for a few minutes. Then Tracy left, and Appellant went to sleep inside his own pickup. At about 4:00 a.m. Tracy came back with another person named John who gave Appellant $300.00 and asked him to buy some drugs for him. The three drove to a residence near Byars to buy drugs but no one was home. On their way back to Purcell, about two miles east of Rosedale Tracy's pickup stalled. Tracy and John got out and started walking and Appellant fell asleep. A short time later Tracy and John drove up in a brown pickup belonging to the Shorts. They used the Shorts' pickup to jump start Tracy's pickup. Then Tracy and John got back inside Tracy's pickup and Tracy drove the Shorts' pickup. He noted that they were seen by a man in a white pickup and by a man in a red pickup. Eventually, he left the Shorts' pickup behind some tank batteries and they drove Tracy's pickup back to Purcell. When they got back to Tracy's trailer John walked off and Appellant went with Tracy into the trailer. He eventually went home. Appellant said that the $300.00 found in his freezer was the money he was supposed to use to make the drug buy. He never admitted to having been inside the Shorts' home.

Dyer's truck apparently did break down. Witness Thomas Tucker testified that he saw two pickup trucks, one white and one brown, near the Shorts' residence on the morning of the murder around 9:30 AM. There were two men who appeared to be trying to jump-start one of the trucks. Witness Dennis Hawkins testified he had noticed someone driving the Shorts' brown pickup in a reckless manner followed by a white pickup near the Shorts' home around 9 AM. Neither witness could identify the men they saw.

When I first read the footnote, I realized the game was up for Matthews. It seemed incredible (in the sense of not credible) that during a drug run, the truck would break down near the house of Matthews' aunt and uncle, that he would not solicit help from them, that instead his drug buddies would wander off without him, and only coincidentally kill Matthews' aunt and uncle to get their brown truck to jump-start Dyer's white truck. It seemed more likely that the truck had stalled on the way to burgle or rob the Shorts, and that Matthews' remained behind (as planned) because he would be recognized.

The Attack

Sometime at or after 6 AM, Minnie Short awakened to a noise in her house. She arose and went into the living room. She was attacked from behind by someone with a knife. As she struggled, the attacker cut her throat. She fell to the floor.

Earl Short apparently heard the commotion. When he entered the living room, he was shot in the back of the head by a second attacker. Earl fell to the floor beside Minnie, one of his arms stretched over her.

Minnie was told to lie still. She never saw her attackers' faces, but she heard both of them speak. She did not recognize either of their voices. They told her to lie still. They asked her several times where the money was hidden.

The attackers spent the next several hours ransacking the house. At 8:16 AM, one of them placed a phone call using the Shorts' phone. Some time thereafter, the attackers left, taking with them $500, a .32 caliber Smith & Wesson pistol, the murder weapon, a bottle of Minnie's prescription medicine, and the Shorts' brown pickup.

After the attackers left, Minnie dressed and went out to the road to get some help. An ambulance coincidentally passed by, stopped, and rendered assistance. She told the paramedics that she had been cut and her husband had been shot. The paramedics bandaged her wound, which had stopped bleeding on its own and which was determined not to be life-threatening. The paramedics went to the house where they found Earl short already dead.

The Arrests

The police traced the phone number called by one of the attackers to Bill Guinn. Guinn was Tracy Dyer's uncle and employer. Guinn confirmed that he had received a call from Tracy Dyer earlier that morning. Dyer had explained he would be late to work that morning because he was having trouble with his truck.

Around 10 PM, the police arrived at Tracy Dyer's trailer. There they found Dyer and his uncle Wayne Clary. Dyer was arrested, Clary was not.

A week later, Jeffrey Matthews was arrested. During the search of his residence, the police found three $100 in a freezer and a prescription pill bottle for Xanax made out to Minnie Short. The police also found a pair of brown coveralls they claim Matthews wore during the crime. We can assume, however, that the police found no blood on the coveralls, or anywhere in Matthews' house. They would have mentioned it. The police also  found no evidence of a gun, buried or otherwise.

Five months later, the police got a big break when a neighbor found obvious evidence of a something recently buried.

Conclusion

Jeffrey Matthews concedes he planned a burglary, if not the actual robbery, of his aunt and uncle. He was, in fact, the inspiration for that crime. His claim at this point is that he planned to burgle the house on a Saturday when the Shorts' would not be home, but his confederates took matters into their own hands. Matthews falsified his own defense by his initial statement that he traveled with them in Dyer's truck that night, by his ability to so accurately describe the events of the breakdown, the witnesses, and the disposition of the stolen pickup.

I believe that Matthews was well aware that the burglary was to take place that evening, and the breakdown of Dyer's pickup delayed the burglary and thereby transformed it into an armed robbery. I would like to believe that Matthews planned the burglary for the early morning hours, while his relatives were sleeping, so that no one would get hurt. I can't, however, get beyond the point that Matthews provided Dyer the murder weapon just hours before his uncle was shot in the head by that very gun.

I provide my Actual Innocence Scorecard to the right. I score his possibility of actual innocence as 8 out of 100. In cases where I believe there is a reasonable chance of the person's actual innocence, I oppose the death penalty. In cases where I believe there is no reasonable chance of actual innocence, I neither oppose nor support the death penalty. In this disturbing case, I stand mute on the issue.

Dupree and Massingill: Spence and Melendez

Cornelius Dupree is free from prison after serving 30 years in Texas for a rape he did not commit. DNA testing proved he was innocent.

Anthony Massingill remains in prison. He was convicted for the same crime as Dupree, an alleged accomplice. The DNA testing that freed Dupree also exonerated Massingill. Massingill remains in prison, however, for a second rape he claims he did not commit. He hopes that DNA will soon exonerate him in that case as well.

David Wayne Spence is dead, executed by Texas in 1997 under the watchful eye of George W. Bush for the murder of three teenagers at Lake Waco. David Spence was almost certainly innocent of the crime for which he died. I calculated his actual innocence score to be 90.

Anthony Melendez is alive, serving two life sentences in Texas. He was convicted for the same crime as Spence, an alleged accomplice. Melendez sold his testimony against Spence to Texas in exchange for his life. It's always a buyer's market when you hold the power of life or death over your potential customers.

Cornelius Dupree and Anthony Massingill are fortunate to now have the attention of The Innocence Project and the Dallas District Attorney's Conviction Integrity Unit. They certainly don't need the help of a little known blogger.

David Wayne Spence is dead. There's nothing anyone can do to help him.

Anthony Melendez is alive, serving two life sentences for a crime he almost certainly didn't commit. Everyone has forgotten about him, or has never heard of him. Perhaps I'll spend some time this year writing about his case.

Leroy White: Zero

Leroy White is scheduled to be executed by the state of Alabama on 13 January 2010. I have reviewed his case for any possibility of actual innocence. I find none.

I repeat below the facts of the case as presented in White v. State 587 So.2d 1218 (1990). Brackets are in the original.

The victim in this case, Ruby White, was the estranged wife of the defendant, Leroy White. The parties had separated during the month of August or September, 1988, when Ruby White left the marital dwelling at 2217 Evans Drive, Huntsville, Alabama, and moved into a shelter for abused spouses. During previous difficulties between the defendant and his wife, the defendant had shot her in the leg.

Following their separation, Ruby White employed an attorney and filed a petition for divorce. A ... hearing was scheduled at which time the defendant and Ruby White verbally agreed that the defendant would move out of the dwelling at 2217 Evans Drive and would allow Ruby White and her two children to return to the dwelling. The residence at 2217 Evans Drive was owned solely by Ruby White prior to her marriage to the defendant.

After her return to 2217 Evans Drive, Ruby White changed the door locks and her sister, Stella Lanier, moved in with Ruby and her two children. The children were Brian Smith, age 16, son of Ruby White and a former husband [John Smith] and Latonia White, age 17 months, daughter of Ruby White and Leroy White.

On the afternoon of October 17, 1988, the defendant, Leroy White, purchased a shotgun from Blue Springs Pawn Shop. After purchasing the shotgun, he went to Larry's Pawn Shop and purchased some double-aught shotgun shells. After making these purchases, the defendant drove to the home of Ruby White at 2217 Evans Drive. The testimony indicated that the defendant had been drinking alcoholic beverages during the day. On his first arrival at the home on Evans Drive, the defendant pulled his car into the driveway and almost ran over his 17 month old daughter. Stella Lanier observed this and the defendant and Stella got into an argument about his driving. The defendant then placed his daughter in the car and drove off.

At approximately 5:15 p.m. the defendant returned to the Evans Drive residence of his wife and exited his vehicle armed with a [12 gauge] shotgun and a [.38 caliber] pistol. Ruby and Stella observed the defendant pull up and get out of his car with the shotgun and pistol. They went into the house and locked the doors. Brian Smith was sent to a rear bedroom by his mother and told to hide under the bed. Latonia White was still in the defendant's car.

The defendant then came up to the front door of 2217 Evans Drive and finding it locked, shot the glass out of the storm door and shot the lock off the wooden front door. He then kicked the door open, entered the house and began to scuffle with Ruby and her sister, Stella. As Stella tried to flee the house, the defendant ran out on the front porch and shot four times. Stella fell in the yard [having been wounded in her right arm and right leg].

The defendant then went back in the house and confronted Ruby who was begging and pleading for her life. After a brief confrontation, Ruby ran out into the front yard at which time the defendant told her to stop or he would blow her legs off. She stopped and the defendant confronted her with the shotgun. Ruby grabbed the barrel of the shotgun and continued to plead for her life. Her daughter Latonia was in the defendant's car and her son Brian was in the house.

Finally, the defendant shoved Ruby away from the gun and fired at her at point blank range with the double-aught buckshot. The blast tore the flesh from her right arm as she tried to shield herself and the pellets penetrated her chest and abdomen. Ruby fell to the ground moaning but she was not dead. Testimony revealed that the defendant then went back into the house and called for Brian to come out of his hiding place. When Brian came out, the defendant told him to tell his daddy that "... when I get out of this, I'm going to kill him, too."

The defendant then went back outside, walked up to where Ruby lay on the ground moaning and said, "Bitch, you ain't dead yet." He then went to his car, re-loaded the shotgun, picked up his 17 month old daughter and walked back over to where Ruby lay on the ground. As he placed the muzzle of the shotgun to her neck, he said, "Bitch, this is the last thing you will see." He then smiled and pulled the trigger.

The blast tore a hole in Ruby's neck where the gun shot entered and blew off the back side of her head where it exited.

At this time, the police arrived and the defendant surrendered without incident.

With respect to the death penalty in the case of Leroy White, I stand mute.

Billy Alverson: Zero

Billy Alverson is scheduled to be executed by the state of Oklahoma on  6 January 2010. I have reviewed his case for any possibility of actual innocence. I find none.

I repeat below the facts of the case as presented in Wilson v. State 983 P.2d 448 (1998). I have marked the references to Alverson in bold.

Michael Wilson and Richard Yost were employees at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma. Wilson and his friends planned to rob the convenience store at least two weeks before this crime actually occurred. The plan commenced on February 25, 1995. Wilson had completed his shift at 11:00 p.m. with Yost beginning his shift at that time. Wilson and his three friends came into the store during the early morning hours of February 26 and waited for the most opportune time to accost Yost. The QuikTrip surveillance camera captured the events as they unfolded. The video of the events is quite telling.

Yost was cleaning the windows on the coolers with Wilson and the codefendants surrounding him. As Yost was walking near a passage way to the back room, all four defendants attacked him and dragged him to the back room. One of the defendants, identified as Billy Alverson came back out and picked up some items that were knocked from the shelves and kept watch for customers. A few moments later, Alverson and Richard Harjo walked out the front door of the store. While they were going out, Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Alverson and Harjo re-entered the store with Harjo carrying a black aluminum baseball bat. He carried the bat to where Yost had been taken. The surveillance camera picked up the sounds of the bat striking Yost. Circumstantial evidence showed that the baseball bat struck the handcuffs on Yost's wrists which Yost was holding above his head to ward off the blows. As the blows were being struck, Wilson walked from the back room, checked his hands, put on a QuikTrip jacket, got behind the counter and tried to move the safe. While Wilson was behind the counter, several customers came in. Wilson greeted them with a friendly greeting, sold them merchandise, then said "thank you, come again" or "have a nice day."

All this time Wilson continued to try and pull the safe from underneath the counter. He took money from the cash drawer and pulled money out of the currency change machine. At some point after this, Wilson left the counter area and took the video from surveillance camera recorder. The defendants then loaded the safes into Wilson's car using a dolly from QuikTrip.

Yost's body was discovered by Larry Wiseman, a customer, at about 6:00 a.m. Yost was laying on the floor in a pool of blood, milk and beer. Yost's ankles were taped together with duct tape. One handcuff was found near Yost's body. The other cuff was missing from the scene. Detectives learned that Wilson was at the store between the hours of 4:00 a.m. and 6:00 a.m.

Wilson failed to show up for work at the scheduled time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Wilson's house and at about 4:00 p.m. he spotted Wilson get into a gray vehicle. The vehicle was stopped. Wilson was taken into custody. Also arrested were the other occupants in the vehicle: codefendants Alverson, Harjo, and Darwin Brown. Large sums of money were recovered from all of the defendants except Wilson.

Wilson was questioned by Detective Folks. He told Folks that they planned on robbing the QuikTrip and that he knew Yost would be killed. He said that they had been talking about the robbery for about two weeks. The plan was for him to assume the role of sales clerk once Yost was "taken care of."

Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance video tape. A search was conducted of Wilson's house but nothing of value was discovered. The next day Wilson's mother called Officer Makinson to come to her house. Once there, the detectives found several items of evidence on the front porch, including the baseball bat, a bloody QuikTrip jacket with Yost's name on it, Wilson's Nike jacket matching the one worn in the store video and the other cuff of the set of handcuffs.

With respect to the death penalty in the case of Billy Alverson, I stand mute.

Johnny Frank Garrett: Not The Last Word

Reader Anonymous left a comment on my post What's Up With Johnny Frank Garrett? He informs us that The Last Word is now available on Netflix for instant viewing. The Last Word is an award winning documentary about  the obviously wrongful execution of Johnny Frank Garrett.

The 90 minute documentary provides more detail than I provided in my post Actual Innocence: Johnny Frank Garrett and Bubbles the Clairvoyant. If you have a Netflix subscription, you should watch the documentary. I suggest you wait until you have time to be sad and discouraged.

Jeff Blackburn is a Director for The Innocence Project of Texas. He appears in the documentary. Repeatedly. I'd say he's a bit angry about this case. Here's what he had to say about then Governor Ann Richards.

She should have stopped this execution and commuted his sentence. She could do it. There's no question about that. The governor has that power. She was arguably one of the best governors if not the best governor the 20th century had ever produced, and the best she could do is go along with the mob. That tells you how far things have gone in Texas.

To understand Ann Richards you've got to understand that she was a great Texas politician. To be a great politician in Texas means you've got to be a lousy human being. You cannot be governor of the state of Texas and be anything other than rotten to the core.

Johnny Frank Garrett made me personally change my whole view of Ms. Richards, a view that I had fostered on me and nurtured in me since childhood. She did the wrong thing, and for the wrong reason. And she did it for the sake of what they call political effectiveness, which really means keeping your career intact.

It was wrong and lousy and it still is wrong and lousy.

That's a bit harsh, but Ann Richards did in fact allow Johnny Frank Garrett to be executed. Rick Perry did in fact allow Francis Elaine Newton and Cameron Todd Willingham to be executed. All three were almost certainly innocent. It was wrong and lousy that we killed them.

Those three people died in vain. We have not learned from the injustice we inflicted upon them, and injected into them. We are going to do it again.

We are going to do it again in twelve days.

I'll write of that case tomorrow, on the first day of the new year.