Solving Historical Cold Cases With Modern Techniques

Cold case true crime appears to be a popular entertainment genre these days. I know at least one retired cop who has been a regular on the series Cold Justice, which features him assisting former Harris County Prosecutor Kelly Siegler in a long list of unsolved crimes from the recent past. Besides that show, I often find the other true crime programs occasionally delving into the cold case realm for a look at other unsolved crimes.

Beyond the entertainment value, however, I’ve found an educational angle to the exercise of reviewing a mystery from the perspective of time. As witnesses age and their relationships shift, they often become more willing to share details than they had in the emotional moment of the crime. Viewers also have a chance to examine the actions of the suspects or relatives during the months or years following a crime. You get a more satisfying picture and a better understanding of the procedural strategies involved in solving a crime.

Still, I wondered recently why former Houston Homicide Detective Johnny Bonds was able to find a crucial witness 30 years after he’d been missed at the scene of a kidnapping by the small town cops who initially caught the case.

But how about those really, really cold cases—the dry ice variety. I thought about that recently when I spotted the CBS 48 Hours program revisiting one of the country’s ultimate cold cases in the 1892 Lizzie Borden murders in Fall River, Massachusetts, complete with a mock trial to determine if her 1893 acquittal had been correct.

That show reminded me of an interesting feature I wrote in 1993 for The National Law Journal about the burgeoning trend toward using modern forensics and legal strategy to unravel historical mysteries. Here’s the story published June 21, 1993, under the headline:

Historical figures get their day.

Legal ‘ghostbusters’ say serious issues are at stake

Earlier this year in Richmond, Va., convicted Lincoln assassination co-conspirator Dr. Samuel Mudd successfully appealed the 127-year-old verdict that sent him to prison for life.

Two years ago in San Antonio, accused Alamo deserter Moses Rose won a claim for return of his veterans’ benefits—more than a century after they were denied.

And today there’s an investigation under way to determine if legendary Louisiana Purchase explorer Meriwether Lewis actually committed suicide in 1809 as reported.

Has the nation’s legal community suddenly become lost in a time warp? Perhaps so. For it seems Messrs. Mudd, Rose and Lewis are merely the vanguard of a parade of dead people finally getting their day in court. While these modern verdicts in old cases technically cannot override judgments from earlier days, they still give descendants ammunition that can be used to persuade legislatures or government officials to provide some sort of latter-day relief.

New technology and courtroom techniques have given legal history buffs their first real chance to ride in a time machine. And the race is on to find the most captivating old cases and review them in a modern light.

While some have questioned the purpose of exhuming the century-old corpses, others insist there is much to be learned about the law and society from these excursions back in time. Still others tout the entertainment value of historical re-creations as a way to raise funds to pay the tab on more serious educational activities.

Whatever the purpose, the trend undoubtedly will gather steam because no one seems irritated enough to stand in the way.

“It's not controversial yet because everyone has better things to do than to make a cause out of this,” says Melvin B. Lewis, a professor at John Marshall Law School in Chicago. A specialist in expert witnesses and forensic sciences and a sidelines observer, he adds: “Is it a waste of time? It all depends on how it is done and its objective. If it is entertainment, it can be counterproductive.”

Trials and Evidence

Everyone from the American Bar Association to Texas Public Radio in San Antonio to the Smithsonian Institution has answered the call to solve some lingering legal mysteries.

“Every time I go in and prove the value of science in historic cases, I prove it has value in the contemporary,” says James E. Starrs, in explaining his motivation for becoming one of the nation's most visible legal ghostbusters from the forensic sciences camp.

For 17 years, Professor Starrs, a professor of forensic sciences law at the National Law Center at George Washington University in Washington. DC, has published a quarterly newsletter, Scientific Sleuthing Review, which now boasts about 1,000 subscribers.

His critics usually accuse him of using science to promote himself, but Professor Starrs says he believes the publicity from his adventures assists his primary cause of boosting an interest in forensic science among law enforcement and legal authorities He considers himself a spokesman for the dead, an emissary from the present come to solve the mysteries of the past.

“They say, ‘Let the dead rest in peace.’ But how do we know they are in peace?” the professor asks. “I provide a voice for the dead. The dead deserve the truth. I give them an opportunity to respond. It’s the lawyer in me. I’m giving them their day in court.”

‘Caliban of Colorado’

In the summer of 1989,  Professor Starrs led a team of forensic scientists into the San Juan Mountains of Colorado, where they recovered the remains of five supposed victims of Alfred Packer, a prospector convicted twice in the 1880s of murdering and eating them during a snowstorm in 1874.

Professor Starrs verified the record of Mr. Packer’s guilt, which had come under attack over the years by skeptics protesting Mr. Packer’s innocence. That exhumation, like the others, cost money. The professor says he’s made no profit from his projects and notes that he took out a second mortgage on his home to finance one mission He paid the tab for the cannibal victims dig by selling T-shirts decorated with skulls and skeletons.

The Colorado expedition serves as a textbook example of the prescribed method for historic inquiries. The team functioned like detectives investigating a homicide that had happened only days—not 125 years—before. They employed subsurface radar to find the graves and recover the skeletons; then the bones were cleaned, preserved and pieced together for scientific evaluation by the Human Identification Laboratory at the University of Arizona in Tucson. They reviewed records of the trials of Mr. Packer, studied his confession and testimony, and then compared the wound marks evident on the victims’ bones with his version of the events.

The researchers reported evidence of “substantial defleshing” in the bones of all five victims—“so thoroughgoiug, so conscientious and so exact as to be unmistakable proof of cannibalism.”

Armed with a modern autopsy report, Professor Starr asserts that prosecutors of the 19th century easily would have destroyed Mr. Packer's contention that he only nibbled on two of the corpses to quell hunger pangs temporarily.

“Alfred Packer was as guilty as sin, and his sins were all mortal ones,” the team concluded in its report. “It remained for this scientific investigation to prove with overwhelming conviction that Alfred Packer was not only the Colorado man-eater, not merely America's most celebrated anthropophagist, but also the ‘Caliban of Colorado,’ who butchered his five fellow prospectors.”

Code of Ethics

Professor Starrs is ever alert for new old mysteries to solve—he hopes soon to have a chance to locate and study the remains of Meriwether Lewis to determine if the famed explorer was actually the victim of a homicide or an accident, instead of a self-inflicted gunshot wound in 1809. But the resulting publicity has caused him to develop his own code of ethics. “I’m going to give a talk soon about exhumations I'll never conduct,” he says. “I turn down 50 for every one I would do.”

Before determining whether an exhumation has scientific value, Professor Starrs first asks three questions:

·       Are there significant scientific issues to be resolved? He says science must be able to make a positive contribution to warrant an exhumation.

·       Is there a new scientific development, technology or understanding that could be used now that was not available or not applied to the original evidence?

·       Is it likely that the remains will be in analyzable condition?

Among the top names on his hit parade of exhumations is John Wilkes Booth, who is rumored actually to have survived a shootout with federal troops after the assassination of President Abraham Lincoln. Did a body switch occur? Professor Starrs says he believes that only an exhumation of the body buried in Baltimore will answer the nagging question.

“In each and every case it behooves the investigator to look at whether there is an historical question that is relevant,” says another member of the scientific sector, William R. Maples, curator and professor of anthropology at the Florida Museum of Natural History in Gainesville.

Professor Maples has examined the deaths of President Zachary Taylor and Spanish conquistador Francisco Pizzaro, and is working with Russian authorities on an investigation into the death of the Romanov family; he hopes to determine if the mysterious daughter Anastasia is indeed among the dead. Unlike Professor Starrs, Professor Maples says he's found a lot of grant money available for projects.

“To a certain extent there is a race under way to find ripe cases,” says Professor Maples.

Mock Trials

As the scientific sector of the historic re-creation subculture continues to time-travel with technological gadgetry, the second school of legal re-creationists—the mock trial gang—appears content to employ rhetoric and modern litigation strategies to review existing records.

Mock trial proponents seek unanswered or untried controversies and use the legal process to reach a conclusion about facts already in the record. Witnesses familiar with the issues help present them through interrogation by the attorneys. Critics argue that historic mock trials risk emphasizing too much show business at the expense of the truth. But the proponents say they work hard to ensure that entertainment value won‘t discolor the results.

San Antonio sole practitioner Pat Maloney helped represent an obscure dead man seeking return of his veterans’ benefits two years ago. His client was Louis “Moses” Rose, long vilified in Texas lore as the only man to desert the Alamo as the Mexican army approached in 1835.

Mr. Maloney was assigned the case by Texas Public Radio in 1991, when the station launched the first of three annual historical trials by reviewing the decision of the state in 1848 to deny Mr. Rose his request for a land grant as a survivor of the Alamo.

Attacking the case like any contemporary matter, Mr. Maloney researched the Alamo saga and quickly focused on the need to establish as fact an unproven legend—whether Alamo commander William B. Travis drew a line in the sand and invited the volunteers to stay or leave.

Like any other Texas lawyer, Mr. Maloney knew he wouldn’t have a hard sell in convincing a San Antonio jury that Col. Travis actually had drawn the fabled line. It’s an incident embraced on faith by most native Texans. Ironically, history reflects that his client, Mr. Rose, was one of the early disciples who spread the tale about the line, even drawing a picture of the event for others to see.

Mr. Maloney bolstered his client’s credibility with testimony about his background, including citations for bravery during battles under Napoleon in Spain, Italy and Russia. And he got a corroborating witness from the history books when he learned that Alamo survivor Susanna Dickinson also had confirmed the legend of the line.

Much as the jurors would have liked to have branded Mr. Rose a coward, several had to agree with Mr. Maloney that the line in the sand transformed his client’s decision into a voluntary one, and the result was a deadlocked panel. The judge jumped in, ruled in favor of Mr. Rose and symbolically awarded him Mr. Maloney's law offices as compensation.

His Name Was Mudd

Another example of the mock trial movement occurred Feb. 12, when the University of Richmond’s T.C. Williams School of Law conducted an appeal of Dr. Mudd's 1865 conviction as a co-conspirator in the Lincoln assassination. Notorious as the physician who set the assassin's broken leg, Dr. Mudd was tried by a military court and sentenced to life in prison. He served four years before winning a pardon.

As a professor of military law, Richmond’s John Paul Jones focused on the Mudd case as a way to show his students how slow the courts were then to adopt constitutional principles now taken for granted.

Dr. Mudd's appeal quickly attracted three prominent jurists to preside and pitted defense attorney F. Lee Bailey on Dr. Mudd’s behalf against John Jay Douglas, dean of the National College of District Attorneys in Houston.

Student briefs demonstrated that Dr. Mudd had been denied certain procedural rights and noted that civilian courts nearby easily could have assumed jurisdiction instead of the military tribunal.

Mr. Bailey relied on them and employed his own oratorical skills to assert that the military commission had been established “to satisfy the monumental embarrassment of lax security that allowed the president of the United States to be assassinated by an amateur.”

At the hearing’s conclusion, the panel decided that the military commission of 1865 actually had no right to try Dr. Mudd.

“It accomplished my goal of getting people thinking about the history of military law,” says Professor Jones. “We looked at the many procedural errors and learned that Dr. Mudd complained about things that other people could complain about up through World War II.”

Despite the widespread interest in his exercise, Professor Jones says he's reluctant to take the logical next step in the case of Dr. Mudd. Now that the military has been excluded from the case, the school wants to stage a real trial to determine if evidence exists to tie Dr. Mudd to the Lincoln conspiracy

It may be some time before Dr. Mudd again rests in peace, but he undoubtedly will be joined by other historical ghosts, willingly or not, as they roam the hallways of the nation’s courthouses in a belated search for justice.

Update

Since 1993, Professor Starrs has continued to scratch that itch for closure on old cases, as explained in his law school profile. He published a book about the Meriwether Lewis case, and his current Amazon.com author biography summarizes his work:

“James E. Starrs is the author of A Voice for the Dead and a longstanding contributor to The Scientific Sleuthing Review. He is an emeritus professor of law and a professor of forensic sciences at George Washington University as well as a distinguished fellow of the American Academy of Forensic Sciences. He has been involved in many historical investigations, including the exhumation of Jesse James' remains and the Alfred Packer cannibalism case. He lives in Springfield, Virginia.”

The Lewis mystery generated a 2009 article in Smithsonian Magazine.

Meanwhile, Professor Maples died about four years after I wrote this story. His Wikipedia profile offers a brief review of his work and mentions his 1994 book, Dead Men Do Tell Tales. 

For more information on Moses Rose, Wikipedia offers a lengthy article and the Handbook of Texas Online features its own rendition. Rose’s mock trial attorney, Pat Maloney, died in 2005.   

Of course, if any readers have updates to offer, all comments are welcome.

My Favorite Story: How a Newspaper Article Freed an Old Man from Prison

 Wrapping a journalism career of 45 years in 2012, I entered retirement with two filing cabinets full of clips. I have no way to count how many stories I wrote and published between 1969 and 2012, but I can safely estimate the number at more than 16,000. They ranged from short, three-paragraph news items to lengthy feature articles of 10,000 words or more, including investigative projects as well as human interest features.

In looking back, I wanted to pull a few of the most memorable writing projects from those cabinets and list them according to certain criteria. My career actually divided neatly into three more specific eras of journalism: Newspaper reporter (1969-1980), freelance writer (1980-1997) and business reporter for two large corporate publishing concerns (1997-2012). I hope to use this blog as an archive for analyzing some of the most memorable and meaningful projects and have narrowed those down to top 10 list covering many years. They include coverage as diverse and infamous as the Huntsville prison hostage siege of 1974 to the Deepwater Horizon explosion and oil spill of 2010; the Jacinto City police corruption scandal of 1978 and the Ken Lay Enron trial of 2009; the trials of Houston mass murderers Elmer Wayne Henley and David Owen Brooks as well as the trials of Fort Worth billionaire T. Cullen Davis in 1978 and two Houston police officers tried in 1977 in the death of Joe Campos Torres.

For anyone interested in my career (my children and grandchildren, perhaps?), reviewing this list seems a lot easier than digging through my filing cabinets. For anyone interested in the mechanics of journalism and coverage of news events, I hope to provide some nuggets of understanding about the ways that stories are told in the media, or at least how they were told during my years of telling them. And for anyone who recalls some of these events, I hope to provide additional perspective of an historical context.

Given the significance of those other events, the top story on my list might seem a bit unusual. Whenever I’ve been asked to name my finest moment as a reporter, however, I’ve never hesitated in citing the stories I wrote about a man named Gene Winchester as a reporter for The Houston Post in 1976. For Winchester, they resulted in release from prison, and for me they resulted in a nomination by The Post for the Pulitzer Prize in investigative reporting. I didn’t win it.

But I did succeed in accomplishing what ranks as the mythical holy grail for any reporter—the near-impossible mission of forcing the state to release someone from prison. So, the degree of difficulty with the Gene Winchester story ranks about nine on a ten-point-scale. That quest has served as the theme for several movies all the way back to Jimmy Stewart’s 1948 portrayal of a troubled reporter in Call Northside 777.  In addition to those accomplishments, the story of Gene Winchester ranks also as a mesmerizing yarn. When I’ve mentioned it to friends in bars they always want to hear it all, shaking their heads at each turn of the plot.

My discovery of Winchester began about as innocuously as any newspaper investigation could begin. There wasn’t a leaker or a whistleblower or an anonymous tip. There was just me looking to do a human interest feature story about old men in prison. During this period at the paper, I had cultivated a mini-beat of covering the Texas Department of Corrections, convincing my editors to let me visit prison units a couple of times each month just looking for interesting tales. This beat had unearthed a number of fascinating stories about inmates as well as the administrators who guarded the gates. I had become a welcome visitor at several TDC units, particularly the main facility in Huntsville known affectionately by everyone simply as “The Walls.”

For example, I had written one story about an inmate known for his abilities as a jailhouse lawyer, and another story about the editor of TDC inmate newspaper, The Echo. I also had written about the top administrators, George Beto and Jim Estelle. I dined regularly in the inmate cafeteria. I had spent three days with one inmate released after serving a term for marijuana possession, penning a three-part series on his efforts to rejoin society. I also had covered the major story in 1974 of a 13-day prison hostage siege that made international headlines, and I will share more details about that event later. I wrote another story about a female inmate giving birth while incarcerated.

Like many reporters, I maintained a list of story ideas, adding new thoughts every day. Each month I would review my list, pick a topic that appealed to me, and then pitch my editors to see if they would allow me to risk my time pursuing an idea that might not even result in a finished story. By 1976, they had gained enough confidence in me, however, that just about anything I suggested would receive a green light. This system might surprise those who have thought reporters just sit around reacting to events as they occur. At least in my newspaper years, every reporter kept a list of story ideas, waiting for that proverbial slow news day when they could create a story out of nothing but a thought.

So it was in February of 1976 that I reviewed my list on unwritten epics and spotted an entry that made me think: “What happens to old men in prison?” I had jotted this question one day after watching a couple of older inmates in the yard at The Walls, arousing my curiosity. How do they get along with younger inmates? What kind of special care do they need? How difficult is life for them as they age in a confined setting? What kind of crimes placed them in this situation?

The next day I was on my way to Huntsville, about 70 miles north of Houston, after alerting my TDC contacts I wanted to visit their geriatric unit in the hospital at The Walls. After getting the official tour of the unit and an overview of the situation from the administrators, I started wandering around so I could interview some of the inmates. The first one I approached was an 82-year-old convict named Gene Winchester.

Bald and toothless, Winchester was still a large imposing man, well over six-feet tall and muscular. He was willing to chat, but really failed to make much sense. I immediately feared this story would not work very well. I didn’t want to write a sugar-coated account of the great things TDC did for its aging inmates. But it looked like I might have trouble getting information from the inmates’ view if Winchester was any example of the senility among them there. He told me he had killed a soldier and wanted to go to New York where he could make $12.50 per day working on the railroad.

But I had invested a day in this endeavor and knew I needed to produce some kind of copy. I interviewed a couple of other geriatric inmates, but they didn’t seem that interesting. Winchester couldn’t even remember when he had come to prison, but did recall he had killed somebody a long time ago. So I visited an acquaintance who worked in the TDC public information office for additional details about this guy.

She really wasn’t allowed to share prison files with a reporter, but I had come to know her well and she respected the stories I had done about the prison system. She opened his file, left it on her desk and told me she needed to take a break—code from sources who want to share information without actually granting permission. I sat in her chair and read the Winchester file, where something caught my eye. I’m sure she had no idea about the problem in his file. And later she confided she had no regrets about letting me read it because of the way things unraveled.

“Here’s my question,” I said when she returned. “Gene Winchester was sentenced to 50 years in 1917. It’s now 1976 and he’s still here. There’s no indication of an extension for infractions, no second sentence for anything. Why is he still in prison nine years after his full term has ended?”

She stammered and grabbed the file to read it herself. Finally, she looked up and said, “I don’t know. This must be a clerical error. I can’t make sense of this. We’ll have to investigate this discrepancy.”

Suddenly, my slice-of-life “human interest” feature on old timers in prison had shifted focus to one old timer who appeared to have been lost in the system. I told her I would need to learn more tomorrow because I intended to write a story about Winchester one way or the other. If I had no answers, I would just list the open questions in my story while the “investigation” was under way.

When she called me the next day to reveal what she’d found, I was expecting a blast from the bureaucratic fog machine and excuses. Instead, her candor made my story even better. After coming to prison for murder in 1917, she explained, Winchester had killed another inmate two years later. Instead of charging him with a second murder, prison officials shipped him off as a “lunatic” to the state mental hospital at Rusk, where he remained until 1969. He returned then to TDC, but he did not receive credit for time served in the mental facility between 1919 and 1958, due to a ruling by the Texas Attorney General’s office.

I was stunned. Not only had he now been locked up for nine years more than his original 50-year sentence, Winchester only had credit for 24 years total—the two he served from 1917 to 1919 and the 18 he had served since 1958 plus good time. He still had 26 years left on his sentence from 1917! And TDC was emphatic there was nothing it could do about him. So I started seeking a solution.

On Wednesday, March 17, 1976, I introduced Gene Winchester to the world with a story that began above the masthead of The Houston Post and beneath the headline: “50-Year Sentence Closer to Life.” It began: “Although Gene Winchester, 82, has never been sentenced to serve more than 50 years in prison, the State of Texas has kept him locked up since 1917.” I noted that unless pardoned or paroled, Winchester would be 111 years old when released in 2005.

TDC officials admitted they were shocked to learn the circumstances of Winchester’s life. I quoted one saying “Jesus, something should be done. He could probably be helped more in a nursing home than in prison but his time is governed by the 1958 law and opinion.” And that gave me an idea for some follow-up coverage. I also received encouragement from the bosses at The Post.

As soon as the story appeared, I was approached by an assistant managing editor named Jim Holley, the editor who supervised prize submissions among other things at The Post. He said, “You probably have a good shot at a Pulitzer if we can get this guy out of prison. We need to make a list of follow-up stories and do something for him. We need to keep this story on the front page until he gets out.” Holley had been the one who hired me in 1971, when he was city editor. He also had been the architect of the paper’s only Pulitzer win in 1965, when the prize saluted The Post for its work uncovering corruption in the city government of Pasadena, Texas, a Houston suburb. So, I recognized his expertise in managing coverage of a major story and appreciated his suggestions.

I started outlining a strategy that seemed more like a dream at first. But the more people I called, the more plausible it seemed. I knew we couldn’t just release Winchester to die on the streets. I thought he was probably better off in prison. His prison record showed not a single visit from anyone in the course of his life. I would make a search for long-lost relatives, but expected that to lead nowhere. That official’s comment about a nursing home aroused my curiosity. I wondered: What if I can find a nursing home to take him if the governor will grant a pardon? What if I found a way for him to get enough public funding to pay his nursing home bill?

But I also wondered if that would be wise. He still resembled a robust old man, even if he was a tad diminished upstairs. I didn’t want to work to release this guy only to see him kill again. No story or prize would be worth that kind of tragedy. While wrestling with this moral dilemma, however, I moved ahead to see if we really could make anything happen. And I also decided to learn more about the old coot and his crime from 1917.

While I worked away on these angles for additional stories, my first story spawned a life of its own. National and international news wires picked it up, and NBC’s Today show cited it. I got a call from a woman who said, “That’s my uncle Gene. All these years we thought he was dead.” The Texas Nursing Homes Association contacted me with an offer to help. Other would-be relatives starting coming out of the brush pile.

Then I learned that TDC actually had launched a program in 1975 to aid elderly inmates who can’t win parole for issues of senility or indigence. The program already successfully had placed eight aged inmates in nursing homes with a grant from Social Security paying the bills. Winchester’s case was different, however, because he was not yet eligible for parole. He needed a pardon. And I needed to learn his back story.

That mission sent me rooting through the archives of The San Angelo Standard-Times for 1917, reviewing an old book about Texas prison life in those years and interviewing a TDC psychologist who examined Winchester when he returned to prison in 1969. Not trying to generate unwarranted sympathy for Winchester, I truly wanted to learn how safe it might be to set him free. The result was a story that ranks among the best I ever wrote as a journalist. Rather than summarize that article, I’m including it here as the most effective way to tell Winchester’s story.

It appeared on the front page a few days after my initial story under the headline:

“Dice Roll Sent Inmate on Jail Odyssey.”

  Gene Winchester began his long trek toward a prison hospital bed as a journey of friendship 59 years ago when, as a West Texas country boy, he and a pal set out for town.

  The world was engaged in the first war to end all wars. Woodrow Wilson was President. A few people drove cars but things like jet airplanes and television were science fiction dreams.

  And going to town for 23-year-old Gene Winchester and his buddy. George Parramore, 27, meant a visit to San Angelo. Winchester had been urging the trip for some time.

  So, on July 27. 1917, they left the town of Monday and headed for San Angelo. Parramore was never to return alive. And Winchester was sent spinning down a road to oblivion, a road which tunneled through the dark caverns reserved for the crazy in the 1920s, a road which twisted back onto the modern American mainstream of penal philosophy and a road which finally deposited him last week in the midst of controversy with no past and a future of hazy dreams.

  Senile and wasted, he was discovered in a state prison hospital, legally locked away for 59 years on a 50 year term, a lost and ugly reminder the primitive past of our social conscience sleeps just a generation away.

  As in the discovery of some unspoiled tribe in New Guinea, officials in charge hastened to find a solution for his existence.

  And the only version of how he arrived in his current position—how it all began—lies in the faded pages of The San Angelo Standard-Times of 1917 where reporters recorded the events that became the case of the State of Texas vs. Gene Winchester.

  Parramore’s body was found in a clump of mesquite bushes near Harriett, the newspaper reported. He had $81 in his blue serge pants and his shirtless body was wrapped in a quilt. His boots were off and wrapped with him. He had last been seen alive a few days before in Miles, buying a shirt with Winchester.

  An autopsy revealed Parramore had been shot in the back of the head with a .32-caliber pistol. The pistol, Parramore’s hat and automobile were found together in Knox County, and Winchester was charged with murder.

  The newspaper reported Winchester intended to plead insanity due to “a kick by a cow to his head at the age of 7.”

  In October the trial began, and Winchester told his story. He and his friend had been shooting dice where they stopped on the way to town. Parramore claimed credit for a crucial seven, which Winchester said had not been rolled.

  They argued, Winchester said, and Parramore headed for his car threatening to kill Winchester with the rifle hidden there.

  So, Winchester said, he shot Parramore and hid the body. The jury deliberated 14 hours and then sentenced him to 50 years.

  He arrived at the state prison Nov. 15, 1917. In those days, the prison, according to an official Texas Department of Corrections history, had very little of which to be proud.

  Inmates lived in shacks and toiled away their time in the fields. One ex-convict from that era described the life which greeted Winchester in a book: Hell in a Texas Pen.

  “I helped dig 26 graves. Only three were from natural causes. The others were beaten to death When a convict did any little thing to displease a guard, they would make him ride a pole stark naked all night--astride three 2x6 timbers nailed together, the sharpened sides up.

  “I was being worked to death and bleeding like a stuck hog. I went down to 96 pounds from 176. A boy couldn't work and the captain beat him until his back bled. He told he boy that if he was sick he should die…and prove it.”

  Death was ever present and old timers have described scenes where guards let fighting inmates battle to the death rather than risk injury stopping them.

  After less than two years in prison, Winchester was accused of killing another inmate, officials recalled, and it was decided he was too dangerous for the prison.

  Winchester had a background of mental problems. Tom Green County records reveal transcripts of “lunacy” proceedings brought against him in 1915 by his mother.

  The record describes a slow-witted youth with a speech impediment who could sit emotionless for hours until asked a question. Then he would explode and, court records cite, “he would say, ‘Dot Damn you, I will det your doat.’”

  The prison system had just the place for inmates like Winchester. There was a new state “lunatics asylum” just opened at Rusk. A brother had assumed custody of the lad before he could be committed. But this time there was no way to stop it. He was declared a lunatic and sent to Rusk.

  The state considered him dangerous and disturbed and he grew old at Rusk. The mental illness faded into senility and the criminal burned out.

  Dr. Robert B. Sheldon, Rusk superintendent, worked at TDC in 1969 when Winchester returned to prison to finish up his term.

  “I am confident he is no longer a danger to anyone,” Sheldon said. “I complained about him going back to prison.”

  When they added up Winchester’s time, officials refused to credit him with the first 40 years he spent at Rusk.

  Officials believe he is the last of three inmates who failed to receive credit for many spent confined at Rusk.

  One is dead, another has been placed in a nursing home. TDC officials hope Winchester will soon be placed in a nursing home.

  Until then he bides his time in the prison hospital at Huntsville. He answers questions with confused phrases, depicting a memory of broken fragments.

  Do you fear death in prison? “No,” he replies. “I’m getting out someday to work on the railroad.”

  The stories he could tell about the things he has seen are probably the best part of his saga. But they lie buried inside his mind where not even he can get at them.

By the time we published that back story, some things were starting to snap into place for him. The Texas Board of Pardons and Paroles had moved the day after my first story to launch an investigation into a solution for Winchester, triggered by my story. I learned Winchester actually had been considered for parole seven times in the previous eight years, but denied each time due to his mental condition. So, it turned out, he did not require a pardon. In fact, he and the community would be best served with a normal parole that would allow parole officers to monitor his condition as well as his behavior.

I learned that other aged inmates had behaved well when transferred to nursing homes because they had already become institutionalized. One had even developed a reputation as a “ladies’ man” in one placement, and another had volunteered for a job polishing floors in his home

One member of the parole board went out of her way to salute my reporting and the power of a free press to shine the light on situations like Winchester’s. And Winchester’s 71-year-old sister contacted me for an interview. She had been 11 when her brother went to prison, and verified that he had suffered a head injury at the age of two.

“For 59 years I didn’t know anything about my brother,” she told me. “We’re the only members of our family left.”

When she came to visit him on April 13, I wrote a story about their reunion. It was Winchester’s first recorded visit since 1920 when a brother had seen him in the mental hospital. They talked for an hour and a half, and prison officials said they saw him smile.

I even located relatives of Winchester’s 1917 victim, George Parramore, to sample their attitude toward a parole for him. They did not object.

Although TDC needed a guardian to control Winchester’s Social Security payments, officials were reluctant to use anyone claiming to be a relative. It turned out that the Social Security administration itself was able to make payments for him directly to a nursing home just south of Houston that agreed to take him in. Then Texas Governor Dolph Briscoe got involved. Moved by the coverage he expedited a parole to Winchester.

And so, on April 29, 1976—little more than a month after The Post had published my first story on Gene Winchester, the man who came to prison aboard a horse-drawn wagon in 1917, left The Walls in an automobile headed south for his retirement home.

On the front page of the paper for April 30, 1976, I wrote: “Prison officials retired their oldest inmate number Thursday when Gene Winchester exchanged his white uniform stamped 41811 for the first set of free world duds he had donned since 1917.”

But I was still a bit worried. For his exit interview with me, I asked what he planned to do in his new home. He said quickly, “Going to get me a woman.” Oh oh, I thought. Then I lived in fear for a while of the day I would report for duty in the newsroom only to hear about a multiple homicide at a nursing home perpetrated by some old convict who should have been in prison where he belonged. But it never happened.

I visited Winchester a few weeks later to produce one more follow-up story published June 3, 1976, under the headline: “No Visitors Come; Convict, 82, Leads Quiet Life of Loner.” I interviewed one of his new nursing home pals and a member of the staff who told me Winchester had been timid about socializing. They had persuaded him to attend a picnic where he enjoyed the hamburgers. I attempted an interview, but he couldn’t recognize me.

“He sleeps most of the day,” said a nurse. “He’s a sweet old man whose eyesight is nearly gone. And he’s really a loner.”

Afterward, I checked on him a couple of times each year. When I called on May 20, 1980, the nursing home reported he had died two months earlier after breaking a hip in a fall. He had lived to the ripe old age of 86. A representative told me his sister had visited him several times during the last four years, as well as a parole officer. The representative recalled that Winchester “did not like to be bathed. He hated it. He was a loner.”

Throughout my career I covered a number of “big” stories with national implications that would make the saga of Gene Winchester seem pretty small. But I often thought about that old man as a reminder for my profession. Although my reporting freed him from prison, I believe he might have done more for me than I did for him. The story did not win any journalism prizes. It wasn’t like I had freed an innocent man. And Winchester really wasn’t that sympathetic of a character as a murderer. But at least he had some peace for the last few years of his life. And his sister got closure.

For me, however, he always loomed as a reminder how powerful a free press can be. Any time I had a moment of doubt about my work in the years since then, I could always recall the time I stumbled across Gene Winchester one slow news day in 1976 with the perseverance to ask “Why?” when the dates in his official record failed to reconcile with reality. Reporting 101 requires us to answer five questions in every story: Who? What? When? Where? Why? And How? Of those five, Why? and How? are always the most difficult. But no story is ever complete without them. 

Forensic Hypnosis: A Tool Or A Trick For Law Enforcement?

Here’s an article I researched and wrote near the end of my freelancing career in 1996 about the controversy surrounding attempts by law enforcement to use hypnosis as a tool for investigations and prosecutions. Although a couple of the sources quoted here have died, it appears the basic conclusions on the controversy of forensic hypnosis remain about the same as I discovered in 1996, according to a 2016 article in the Journal of Law and Criminal Justice.

My article was published in a quarterly magazine for the Texas Highway Patrol Association, appearing in the summer edition for 1996.

HYPNOSIS—UNLOCKING THE MIND

Twenty years ago in Chowchilla, California, 26 children aboard a school bus were abducted by masked men who herded them into vans and hid them underground in a rock quarry.

Although the bus driver and two students managed to claw their way out of the hideous grave, they couldn’t recall pertinent details about their abductors. Hypnotized and told to imagine himself lounging in a chair and watching the event on television, the bus driver simply read the license plates on the vans.

Timely disclosure of those numbers closed the case, making it a well-publicized event in California law enforcement annals.

Nevertheless, 20 years later, hypnosis has still not gained mainstream status as an investigative tool. Today it’s little comfort for law enforcement to know that the legal guidelines for hypnosis still remain murky; the U.S. Supreme Court has yet to provide absolute guidelines on the subject of witness hypnosis and laws differ from state to state. Several factors, such as declining membership in the 19-year-old ISIFH (International Society for Investigative and Forensic Hypnosis), indicate that hypnosis has less impact on criminal investigations now than a decade ago.

As a result, law enforcement agencies must use hypnosis with extreme caution. They need advice from their local prosecutors before they ever ask any witness to be hypnotized. Otherwise, they risk jeopardizing their case in court, since juries may view witnesses’ memories as having been tampered with. Hypnosis is tricky business both technically and legally, but it can also be an invaluable tool. Knowledge of some of its standard guidelines for use can provide officers with useful tools on difficult cases.

The Professional Battle

“My experience is that it’s being used less frequently because prosecutors don't want their cases compromised,” says Alan M. Goldstein, an associate professor in forensic psychology at New York’s John Jay College of Criminal Justice. “If used correctly as an investigative tool, it is a technique of last resort. It’s a tool with a downside. Court decisions have limited more and more the use of eyewitness testimony of witnesses who have been hypnotized.”

Nevertheless, Goldstein's use of hypnosis helped solve a series of rape cases in New York last year and demonstrated the investigative power of the tool. Hypnotizing a traumatized woman who could not provide a description of the man who had raped her twice because she had blocked the assaults from her mind, Goldstein asked her to try to recall details.

“Through forensic hypnosis, she recalled a ring he wore and his cologne,” says Goldstein. “But she also remembered watching him run away. She said he ran as if he were a runner.”

That sent investigators thumbing through the pages of local high school yearbooks, reviewing photos of track stars. The process prompted identification, arrest, and the solution of five other similar cases.

With the power to turn a witness’s quick glance into a critical clue, it’s no wonder that many investigators have championed hypnosis. But a combination of aggressive court battles and scientific research into the hypnotic process have produced a division among participants in the hypnosis arena. Exuberant fans like Paul Kincade, former president of ISIFH, blame a couple of prominent researchers for reining them in: the late Bernard L. Diamond from the University of California at Berkeley and Martin T. Orne of the University of Pennsylvania.

Diamond, who used hypnosis to assess the mental condition of Robert F. Kennedy assassin Sirhan Sirhan, had contended that hypnotized witnesses are incompetent to testify. And restrictive guidelines devised by Orne in a New Jersey case have become the standard for forensic hypnosis in most states, according to Goldstein. Orne is currently sidelined by illness and unavailable for interviews.

“It used to be a very active area,” says Irv Gullen, director of the Institute for

Forensic Psychology, an independent organization in Oakland, N.J. “But ten years ago data started to emerge that the information was unreliable. Although there were dramatic instances, it was more the exception than the rule. It’s now done as a last resort. Courts are reluctant to accept it unless it can be corroborated in another way.”

The scientific community began seeing dangerous consequences for the use of hypnosis in the legal process about ten years ago. In 1983, Dr. Orne chaired a special panel of the American Medical Association's Council on Scientific Affairs, a panel that reviewed all scientific evidence on the use of hypnosis to refresh memories of witnesses and victims of crime. Two years of study prompted a conclusion that hypnotically-obtained recollections can involve distortions called confabulations—fabricated details that the subject uses to fill in memory gaps of an event. But as Martin Reiser points out in The Handbook of Investigative Hypnosis, the same problems of confabulation, fantasy and suggestibility occur in non-hypnotic memory recall as well.

The result has been that there are now widely differing rules about hypnosis in each state. Three states reject testimony altogether from previously hypnotized witnesses; 21 allow only those memories recorded prior to hypnosis as admissible; 12 will consider it with a variety of different safeguards on a case-by-case basis; four admit such evidence without condition; and, 11 have yet to develop a hardened rule.

“We had 1,000 members in 1982 but now we’re down to just over 100,” says the ISIFH’s Kincade, who still travels the nation conducting hypnosis seminars and advocating for legislative change that will override the key court decisions.

Marx Howell, a 32-year-veteran of the Texas Department of Public Safety, says, “I think defense attorneys have taken away from law enforcement a viable investigative tool in some cases. I think there are some unsolved cases where hypnosis could develop new leads to investigate.”

Howell, who retired with the rank of inspector two years ago, also serves as vice president of the Texas Association for Investigative Hypnosis and says that Texas officers use the technique about 100 times each year. Initially opposed to its use in the 1970s, Howell became a fan of forensic hypnosis in 1979 when he chaired a DPS task force established to review the technique and establish guidelines for its use. As a result of the committee's work, Texas, in 1988, became the only state with a law that regulates the certification of police officers as hypnotists. He says the DPS has about 35 or 40 officers certified for the technique and he continues to teach it whenever requested. He agrees that officers must use caution because state laws and court rulings differ so widely across the country.

“Hypnotically refreshed recall is a viable investigative technique if used properly,” says Howell. “But if officers already have a suspect or a witness, they shouldn’t normally be using hypnosis to further their case.”

A History of the Tool

Both European and American investigators have employed hypnosis since the 19th century in what Diamond had called “very rare, exceptional and freaky” cases. California officers pioneered more use of the techniques in the 1960s under encouragement from the legendary Martin Reiser, who founded the now defunct Law Enforcement Hypnosis Institute in Los Angeles. Always at the forefront of the hypnosis controversy, Reiser insisted that police officers should be trained in the discipline. But he met with much skepticism, and became so discouraged that he no longer grants interviews on the subject, according to Debra Glaser, a staff psychologist in the Behavioral Sciences Section of the Los Angeles Police Department.

Reiser’s followers contended that hypnosis could remove amnesia and provide valuable information in 60 to 90 percent of cases where it's needed, according to the most recent and comprehensive report on forensic hypnosis, a 1993 report by Louis B. Laguna in the “Campus Law Enforcement Journal.”

Laguna showed that hypnosis plays a role in decreasing inhibitions about volunteered information that can later prove crucial in solving a case. Although few investigators would recommend arrests or prosecutions based solely on hypnotically induced testimony, a study of 400 hypnotic sessions conducted by the LAPD between 1974 and 1979 showed that officers learned vital, new information 67 percent of the time.

Before his death, Diamond charged in an interview with The National Law

Journal that hypnotism became a “fad” and an “epidemic” with the LAPD. He said the department trained at least 10,000 investigators in the discipline. He alleged that this army of law enforcement hypnotists may have contaminated hundreds of witnesses.

Critics and court challenges have drastically reduced law enforcement’s use of the tool. Perhaps the most influential case comes from a 1982 decision by California’s Supreme Court. Known as the “Shirley Case,” after a California rape case in which a Marine was wrongly convicted on the testimony of a victim whose memory had been “refreshed” with the help of hypnosis, its ruling states that anyone hypnotized in an investigation may not testify.

“We still use hypnosis in California in cases that have multiple victims or witnesses—cases in which we can afford to ‘throw away’ one witness,” explains Kincade.

The Shirley case has slowed the use of hypnosis but not stopped it completely, according to Glaser. “We might use it if a detective calls and is absolutely stuck,” she says. “I might be called in to hypnotize a witness but that’s all I can know about the case. My only connection is—I do it.”

Her aloof presence stems from the assumption that police agencies should use independent, third-party resources for hypnotic sessions. This ensures that opponents can’t charge that the hypnotist had a stake in the outcome and suggested helpful answers to the witness.

Hope for the Future of Hypnosis

Kincade cites Texas as one jurisdiction where hypnosis continues to play a substantial role in police investigations. That's due to a 1988 ruling from the Texas Court of Criminal Appeals in the 1967 murder case of an Austin store clerk. Unsolved for a decade, the case came to life in 1980 when a Texas Ranger hypnotized a witness who then selected a suspect from a photo spread.

The result? A conviction and 99-year prison sentence.

The state’s highest criminal appeals court allowed the hypnotically induced testimony by citing an important 1987 U.S. Supreme Court case that had focused on the testimony of a criminal defendant from Arkansas. In that case, a woman charged with her husband's death had undergone hypnosis to recall details of the murder. In the process, she recalled that the gun had discharged by accident. The court denied her right to testify in her own defense about the hypnotic experience, but the nation’s highest court overruled, providing its only real opinion on the use of hypnotism.

If investigators are hesitant to use hypnosis, Laguna notes, they can borrow hypnotic techniques such as “guided imagery” to find critical information. However, Laguna warns that scientists lack data about its reliability, which may make it vulnerable in court. The technique helps witnesses relax and meditate on events without hypnotic trances, allowing them to use their imaginations to return to the day of the crime and re-experience its events and details. The technique varies with each witness depending on the subject's ability to relax and daydream about past events.

Hypnosis and the Subconscious Mind

In the words of PAUL KINCADE

It’s not generally known that the conscious mind is critical, analytical and overly protective. When a person experiences a traumatic event, the conscious mind will delete, distort or generalize the event to make it acceptable to live with.

Take as an example, the case of a police officer who arrives at the scene of an accident to find the paramedics assisting an unconscious driver. When the driver regains consciousness, the officer may ask him what happened. “Geez,” the man might respond, “I don't know. The last thing I remember is seeing headlights way down the road, coming toward me.”

 A lot of things happened between the time the driver first saw the headlights and the time he lost consciousness, but his protective conscious said, “That’s too heavy to live with, so forget it.”

As a result, he suffered a spontaneous amnesia. We also see this phenomenon with victims of rape and other violent assaults. Before the conscious mind puts an experience into memory, it will censor it. However, at the same time, the subconscious mind will record the same event, but without any alteration, and file it away at a subcortical level of the brain stem, below conscious awareness.

A trained hypno-lnvestigator can create a trance state for the victim or witness, bypass the critical conscious mind and retrieve the unaltered version. It should be emphasized that any information retrieved by hypnosis is perceptual and not necessarily factual. This is why all Information, from whatever source, hypnotized or not, must be corroborated by hard evidence. It should be understood that hypnosis is an information-gathering technique, rather than a fact-finding one. It also is a tool of last resort.

Paul Kincade, M.A., served twelve years with the San Diego Police Department as their forensic hypnotist, working with crime victims and witnesses, police officers with problems and the academy's cadets. He is currently a reserve deputy sheriff with the Washoe County Sheriff's Office. He teaches the techniques of forensic hypnosis at three Northern Nevada police academies and at agencies that request these services.

Kincade received a U.S. Congressional Distinguished Services Award and was nominated for the California Governor's Crime Victims Services Award. He was inducted into the International Hypnosis Hall of Fame in May in Pennsylvania.

GUIDELINES

Investigators who decide to use hypnosis should note that:

·       Investigators should use only health professionals or law enforcement that have been trained In forensic hypnosis with no previous knowledge of the case’s facts to hypnotize subjects, To ensure that the hypnotist will ask proper questions, investigators must carefully prepare a memorandum of basics without including opinions to influence the session.

·       They should videotape all contact between the hypnotist and the witness from the introductions to the final farewells to prove that casual comments haven't produced suggestions for recreation of a crime.

·       Only the hypnotist and the witness can remain in the room during the session to prevent inadvertent suggestions from third parties.

·       Investigators should have videotapes of all previous interrogations of the witness, so they can document the changes or additions to the subject’s version.

“You have to get pre-existing observations documented to distinguish between what they knew before and later,” says Goldstein, emphasizing the need for earlier tapes. “The worst thing that can happen to a police department is that they call someone who doesn’t know about forensic hypnosis. Before you know it, leading questions are asked and the prosecutor has to clean up the mess. Some departments are using dentists.”

Investigators like Kincade know that defense attorneys will remain quick to cite the criticisms of top hypnosis critics, such as Diamond and Orne, when handling cases where hypnosis played a role.

Defense attorneys may argue that:

·       Hypnotized witnesses are susceptible to suggestions by the hypnotist.

·       Witnesses may fill memory gaps with confabulations—fantasies, fears or hopes—that contradict the actual events.

·       The process leaves the witness with an almost unshakable belief in the memories produced—a belief so strong that it usually defies cross-examination. Juries still perceive hypnosis as infallible despite warnings from judges.

·       The subject usually works to please hypnotists, falling under their spell.

When Ted Poe Was Houston's 'Hanging Judge'

Serving in the US Congress from 2005 until retiring in 2018, Houston’s Ted Poe is best remembered these days as a wise-cracking conservative Republican lawmaker. But he first made his mark at the Harris County Criminal Courthouse in the 1970s, ‘80s and ‘90s first as a hard-nosed prosecutor and then as an innovative Criminal District Judge.

I met Poe as a young prosecutor when I worked as a reporter for The Houston Post covering that courthouse between 1976 and 1979. Despite his hard line toward criminals, he always displayed a great sense of humor, and we often shared many laughs during his prosecutorial career. We even carpooled while performing our respective duties on a high-profile criminal case moved to Huntsville on a change of venue from Houston in 1977—him prosecuting and me reporting the testimony for The Houston Post. That case received national attention, including coverage by TheWashington Post. 

Although our lifestyles and views differed greatly on everything from religion to nightlife, we always got along well in what I always realized to be more of a symbiotic relationship than a true friendship. For me, he was always good copy and for him, I was a portal for media attention. Nevertheless, I’m sure that symbiotic relationship included a large amount of mutual respect. I know it did from my side of the equation.

So, as a freelancer in the 1980s, I turned again to Ted Poe for story material during his judicial career and he did not disappoint. I wrote several articles about his innovative judicial methods, including this one published in the October 1987 edition of Southwest Airlines’ Spirit magazine. He always kept a framed copy of that cover among the artwork decorating his office walls. Of course, there’s also a Wikipedia article on Poe for anyone seeking details about his congressional career.

HIS BRAND OF SENTENCING MAY BE UNORTHODOX, BUT JUDGE

TED IS LEAVING HIS MARK ON THE TEXAS CRIMINAL JUSTICE SYSTEM

Winston Bradley (as we'll call him) was terrified. The young commodities broker had just relocated to Houston in 1983, looking for professional opportunity. He'd found that, all right, but along with it came something else. Admittedly "naive and stupid," he had agreed to help acquaintance deliver cocaine, only to walk straight into an undercover narcotics investigation trap. Fingerprinted, booked and locked in jail for the first time in his life, Bradley then faced an even more horrifying prospect: His case was assigned to the 228th Judicial District, a court notorious in jailhouse circles as the Black Hole of Harris County.

“The other inmates in the jail were scared to death of the judge in that court,” recalls Bradley. “I was briefed fully on Judge Ted Poe. I was terrified.”

At first it appeared his fears had merit. After pleading guilty, he still refused to throw himself on the mercy of a judge who regularly recites his hard-line motto in public: “I just don't think the criminals ought to leave the courthouse laughing.” Instead Bradley chose a rarely used provision in Texas law that allows first offenders to have a jury assess the sentence. Despite the prosecutor's insistence on 10 years in prison, the jurors decided on seven years' probation with a $5,000 fine. Bradley breathed a sigh of relief.

Then Judge Poe took his breath away.

Interpreting Texas laws on probationary control to their most liberal extreme, Poe ordered Bradley to spend the first 30 days of his term in the Harris County Jail as an appetizer for the main course of punishment that would come if he were to violate probation and draw a prison sentence. The judge ordered a urinalysis taken twice a month plus 20 monthly hours of community service projects assigned by the court.

Figuring that his alternatives could be worse, Bradley swallowed his objections, silently cursed his rotten luck and marched off to jail. After his release, he spent his Saturdays working at a retail consignment shop, with the proceeds donated to churches. He joined a crew of fellow probationers from the 228th Judicial District in cleaning the battleship Texas and the San Jacinto Monument, collecting no pay for the time-consuming volunteer duty. He quit drinking and religiously reported for urinalysis. He met with the judge at regular intervals. And slowly a change occurred.

Bradley has been off probation for some time now. He has married and works hard to support himself. The judge holds no power over Bradley anymore. But Bradley still spends some Saturdays volunteering at the church shop. And he has a new attitude about the man in black who took all the fun out of being on probation.

“I now respect him greatly,” says Bradley of Judge Ted Poe. “He made me see the light. When my judgment was set aside, it was like winning a million dollars. He showed me guidance, and it was a strict probation. It changed my whole life.”

Bradley is hardly typical of the “customers” who do business with the controversial figure who laughs off his image as Houston's “hanging judge.” The criminal justice system produces few satisfied customers anyway, and any review of Poe's probation/prison statistics demonstrates his sympathy for old-fashioned, hellfire-and-brimstone punishment. The majority of defendants assigned to the 228th won't get the same opportunity afforded Bradley.

At the same time, however, there's something new and creative going on in his court. For too long, the public has felt powerless about crime, its only response a choice between extremes: ship the offenders off to prison, where they'll probably get worse before they return; or put them on probation, where they can laugh about beating the system. Ted Poe's justice—dare we dub it Poetic justice?—leaves offenders with little chance for beating the system.

Viewed against the backdrop of prison overcrowding problems in Texas and, for that matter, all over the country, Poe's justice looks like a harbinger of the future. By August, the Texas prison system had been forced on 18 occasions to bar new admissions. While halting delivery of prisoners to its front door, the system has accelerated their departure out the back on at least four occasions this year, with the governor's office awarding extra “good time” to precipitate release of prisoners who would not ordinarily have been paroled. The situation has only added to the frustration of critics who view the system as one big revolving door.

Poe isn't advocating more probation as an alternative to prison. Indeed, his court is renowned as one in which prison sentences overwhelmingly outnumber probation terms. But overcrowded prisons aren't limited to Texas. As more judges adopt creative methods to make probation more effective, Poe emerges as a symbol of a new response to the criminal problem.

“I call it contemporary probation as opposed to straight probation, and it's a national trend that's continually expanding,” says Malcolm MacDonald, president of the American Probation and Parole Officers Association. As administrator for community-based correctional programs for the Texas Adult Probation Commission, MacDonald is particularly aware of the pressures on probation in the Southwest.

“Judges are open to a new look at probation,” he explains. “Part of the motivation is that judges aren’t seeing success with people going through the prison systems, which are overcrowded anyway.”

In that context, Poe represents the vanguard of a new and potentially more effective method for confronting crime. But his pioneering efforts haven’t come without criticism. Not yet 40 years old, Poe seems to enjoy his celebrity as a controversial figure. He recalls feeling complimented when an outraged defense attorney offered his description of Poe as a young prosecutor a few years ago: “He can take 12 rational people on a jury and turn them into a howling lynch mob.”

The judge chuckled at a more recent and earthy assessment offered by a killer sentenced to death in his court: “You tell Judge Poe he has a heart like a thumping gizzard.”

Because of Poe's unmerciful record as a Harris County prosecutor, many observers feared for the system when he won his judicial appointment in 1981 at the age of 33. Here was an assistant district attorney who only half-jokingly referred to his job as “the Lord's work.” Here was a prosecutor nicknamed "Toothbrush Ted" because he had once slid a toothbrush across the defense table to a defendant who slumped in his chair after drawing a long sentence. Poe said he brought the toothbrush that day because he figured the defendant would need one for prison after the trial.

Here was a tea-totaling deacon from the Church of Christ who always credited his religious background with fashioning his philosophy: “I believe there are rights and there are wrongs. The whole world is not a mass of grays as some people would try to lead us to believe.”

But things have been a little different from the bench.

“I don't call it the Lord's work from up here,” he says. And he resisted the temptation to campaign for election by distributing toothbrushes with his name on the handles.

“As a defense attorney, I'm nervous about him. All those conditions just give my clients more opportunity to mess up,” says Fred Dailey, one of the city's top criminal lawyers. “But as a citizen, I've come to appreciate his approach. Probation is too often considered a right by people who should learn criminal conduct is serious business.”

For some, however, the challenge is stiff. The judge recalls an occasion early in his term when he watched a defendant wince while discussing the special conditions demanded in the 228th. Finally, the probation officer addressed the judge: “He says he'd rather go to prison.” Within minutes the man was headed for the Texas Department of Corrections, happy to serve his time behind bars.

“Probation for a defendant is a little white box all tied with yellow ribbons,” Poe explains. “When they open that box in my court, they find a long list of dos and don'ts. I'm no sociologist. But the people I see come through here are selfish. One thing to help change that attitude is to get them doing things for other people.”

Building his probation philosophy on that maxim, Poe has constructed a special formula for dealing with all probationers. It's a formula different from traditional courts, where probationers are merely delivered to their supervisory officers and left to follow basic rules set down by the state. Poe personally involves himself with his probationers to the extent that they actually have two supervisory officers—their probation department professional and his honor himself.

All property crime probations in Poe's court begin with a formal apology from the defendant to the victim. It has to be delivered in writing to Poe, who reviews it for sincerity: “The first step in rehabilitation is admitting you're wrong.”

If the probationer hedges on that admission, the letter must be rewritten. One probationer noted in his letter: “If somebody had taken my car like I did to you, I'd probably have shot them.”

He even required a welfare fraud probationer to publish a classified ad in one of the daily papers apologizing to the citizens of Harris County.

While many judges just sign the probation forms and allow probationers to report by mail, he requires weekly personal visits to the probation department. In addition, each probationer must personally visit him in his office every 60 or 90 days.

“I want to see how they're doing. After all, they're my responsibility,” he says.

And winning early release from probation is not necessarily a routine matter in the 228th. Poe requires a written report from the probationer clearly stating the lifestyle changes that have created a “good citizen.”

But these things are merely the surface of probation in the 228th. Poe really waxes creative in two areas beyond paperwork: community service and special terms.

Sounding much like a doting father with a pack of errant children to corral, Poe recalls, “I read somewhere in the papers one Christmas that the Houston-Galveston Food Bank was out of food. I thought, ‘I ought to get my probationers working on that.’ So I had some of them help distribute food. And they threw a Christmas party for the kids at Project Head Start. They collected items for Toys for Tots. That was their three projects for that year.”

He can dispatch his “probation team” like that thanks to some vague wording in his probation term pleadings. All probationers are required to perform 20 hours of community service per month. But Poe retains the option of determining just how that will be done. He reviews the probationer's background and finds an assignment to do the most good.

One example is a probationer who owned two beauty shops. Convicted of criminal mischief, the man was assigned to spend Saturdays cutting hair at the Texas centers for the retarded and the blind. Says the judge: “If you drive past there and wonder why all those kids have such great hairdos, well, that's why.”

DWI (driving while intoxicated) probationers are routinely assigned to volunteer for work in hospital emergency rooms: “So they can see first-hand the effects of drunk driving.”

Once he loaned a 20-probationer work crew to the state's parks department, where they helped with restoration of the Battleship Texas while another Poe probation squad cleaned the historic Founder Cemetery.

If Poe's interpretation of community service authority seems creative, then his penchant for “special terms” is often the stroke of genius. He always finds something that tailors the probation to the crime. He first grabbed headlines by exiling a probationer to Michigan. He orders high school dropouts to return to school or obtain a GED as a special term of probation. Teens and adults who commit property crimes at night are placed under a 10:30 p.m. curfew.

Jokes the judge: “Someone said that would be impossible to enforce, but it's actually the easiest of all. You just have the probation officer call the home. If there's no answer, the probationer has violated the terms. By 10:30 p.m. the news is off TV and they ought to be in bed, anyway.”

Always eager to come down hard on drunken driving offenses, Poe even ordered child support as a probationary term in a manslaughter case. The wreck victim's widow testified about her poverty, and a light bulb flashed in the judge's brain. When the jury placed the negligent driver on probation, Poe ordered the defendant to help with child support for the widow.

Criminal justice philosophers might argue that all this is effective only if a judge can demonstrate lower rates of revoking those fancy probation contracts. Poe can't. In fact, he admits he may have higher revocation rates because the terms are often more stringent. But he counters that the extra effort is worth it if just one case produces results.

At the Harris County Courthouse these days, the impact of creative probation—Ted Poe's justice—is becoming quite a trend. Vying with Poe now for new ideas is another young jurist, Michael McSpadden. Having concocted some creative projects of his own, McSpadden was disappointed when he heard Poe had been first to focus on the Battleship Texas as a target for the 228th. So he warned Poe in a memo: “Keep your hands off the Alamo—it's mine.”

Looking up from the note, Poe offered a predictable response: “How does he know I don't already have people there?”