Authors: Gary M. Lavergne

Tags: #Biography & Autobiography, #General, #Law, #True Crime, #Murder, #test

Bad Boy From Rosebud (86 page)

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could be believed about what he said concerning Kenneth Allen McDuff. Wisely, Buddy and David never asserted that Worley told the truth about himself. David Counts ended the final arguments with a statement dripping with sarcasm: "If you find the defendant not guilty of this offense, you're going to be telling him, 'Okay, Kenneth McDuff, it's okay to do this. You do whatever you want to do. Go around and snatch women up at the car wash, be the opportunistic predator that you are. Whatever hunting ground you decide to hunt in, it's okay. As long as you pick somebody that's a weak coward like Hank Worley who has lied all his life, who doesn't have a sparkling record. And that's perfect for Kenneth McDuff, because look who else he hangs out with, [Billy], [One-eyed Jack], and [Harrison]. Fine, upstanding citizens, strapping young men. The scary part is, those guys reproduce."
²⁴

The jury deliberated two and a half hours to return guilty verdicts on all countscapital murder, aggravated sexual assault, and aggravated kidnapping. McDuff showed no emotion or reaction until he told one of the officers to take his hand off his arm, and a minor struggled followed as he entered the elevator.
²⁵

While talking to reporters, McDuff lashed out at Hank Worley and accused him of confessing to the Yogurt Shop Murders. The claim horrified Worley, who agreed to take a lie detector test to clear his name. (While the Yogurt Shop investigators never officially ruled out Kenneth McDuff or Hank Worley, they were never prime suspects either.)
²⁶McDuff wanted to set Worley up, and it would not be the last time he would try.

The punishment phase was almost a repeat of the same phase of the Northrup Trial. There were plenty of people ready to testify to Kenneth McDuff's history of violence. Charlie Butts was there, and so was Roy Dale Green. Roy Dale had surprised David Counts when he said, "Go get 'em, David!" It was Roy Dale's rendition of the 1966 Broomstick Murders that stunned and horrified an already terror-fatigued courtroom. David Counts noticed Judge Flowers glaring at Roy Dale, as if he could not believe what he was hearing. "I thought Judge Flowers was going to jump over into the witness box at Green," David remembered.
²⁷

Buddy Meyer called Dr. Richard Coons, a general and forensic psychiatrist, to render an opinion. "Doctor, what I'd like to do at this point in time is to propose a hypothetical and ask you at the end of it whether or not in your opinion there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat

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to society." Buddy followed with a brilliant overview of the murderous life of Kenneth Allen McDuff that took four pages of trial transcript. "Based on that hypothetical, Doctor Coons, do you have an opinion as to whether . . . there is a probability that [this man] would commit criminal acts of violence that would constitute a continuing threat to society?"

"Yes, I do," Coons answered, in what had to be the greatest understatement of the trial.

In his final argument for the punishment phase, Buddy Meyer asked the jury to make a simple promise: "And when you go into the jury room and you deliberate, don't leave your common sense out here, ladies and gentlemen." It took the jury fifty-five minutes to decide that McDuff was likely to commit similar crimes if given a chance. Judge Flowers gave Kenneth the death penalty.
²⁸

McDuff's court-appointed attorneys, Chris Gunter and Andy Forsythe, provided an expert defense for Kenneth Allen McDuff. The problem was that their client was guilty. Their sixty-hour weeks defending McDuff hurt their law practices. Andy recalled that "Gunter got death threats and I lost one client who felt my work on behalf of McDuff would hurt his case." For their efforts, the public defenders got about one-fourth of the going rate for a lawyer working a similar case.
²⁹

David Counts and Buddy Meyer accomplished something rather remarkable. Kenneth McDuff was sentenced to death in a murder case where no body or body parts had been recovered. There was no weapon and no established cause of death. These talented prosecutors got a conviction with five hairs, the testimony of an accomplice who could not remember when he dropped out of school, and a gifted engineer who saw McDuff near, not at, the carwash. David Counts and Buddy Meyer richly deserved the hugs they got from Lori Bible, who sat through every day of the trial.

III

He was more than just another serial killer. Kenneth McDuff's murderous rampage, from 1989 to his arrest in 1992, brought about large changes in the Texas criminal justice system. More significantly, he attached powerful images to the argument that helped the public overcome a conservative political tide to fund a massive expansion of state government.

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Arguably, the Ruiz lawsuit brought to the forefront the inadequacies of Texas prisons, but it was not until the Kenneth McDuff murders that Texas government, and the people, chose prison construction and increased government spending over massive paroles.

In September of 1992, The Texas Board of Criminal Justice unanimously agreed to ask the Legislature for nearly $4 billion to run the prison system for the following two-year period. Even the board members called the request "staggering" and candidly asserted that taxes and bonds were necessary. "Everybody says 'Lock 'em up and throw away the key.' If they want to do that, they're going to have to pay for it. We've got some real hard decisions for the people of Texas . . . for what will soon be the country's largest prison system," said Board Chairman Selden Hale. Texas voters made the hard decision and approved two bond issues for prison construction totaling more than $2 billion. The state legislature tripled the Texas Department of Criminal Justice's budget; the number of prison beds tripled, and the number of prison units increased by fifty percent.

In 1993, the revenue generator for new prisons took the form of Proposition 14, a $1 billion bond issue. Then-Governor Ann Richards, who had inherited a broken criminal justice system, stated publicly: "If you are going to bring down the crime rate, you are going to have to build prisons to lock these people up. . . . Would I rather spend the money in another way? Absolutely! Yes. But this is a necessity that I see no other way around." Proposition Fourteen brought about a coalition including Governor Richards, the lieutenant governor, the speaker of the house, and associations of district attorneys, judges, and sheriffs. It passed with a solid sixty-two percent approval from the voters.
³⁰

The new prisons made possible changes in the law, especially as it related to parole. Today, those changes are collectively referred to as the "McDuff Laws." In an article for the Texas Criminal Defense Attorney's Association journal, Bill Habern and Gary Cohen cautioned defense attorneys that, "If your client was sentenced in 1991 to a ten-year term of imprisonment and you advised them that they would be out at their first eligibility date, your advice would most likely have been correct at the time." Afterwards, parole laws changed so drastically that the same "good faith advice" meant littleor nothing. For example, after September 1, 1993, if a defendant received a life sentence for capital murder, he must serve a minimum of forty calendar years before even being considered for

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parole. Even then, parole for this and certain other offenses requires a favorable vote from two-thirds of the entire eighteen-member Board of Pardons and Paroles, not a majority of a three-member panel like the one that released McDuff.

And long before the McDuff Laws, only two months after McDuff had been arrested, the practice of allowing parole board staff to reinstate parole, as Bettie Wells had done for McDuff, ended. In announcing the cessation of the practice, Board Chairman Jack Kyle announced, "we are doing away with the concept of parole reinstatement altogether." He added, "This is something we had been thinking about for a long time. It is not a direct result of McDuff. However, I'd be lying to you if I said McDuff's case didn't give a lot of impetus to this policy."
³¹

The forty-calendar-year-minimum, or the "McDuff Rule," is nearly the functional equivalent of life without parole. If a twenty-year-old is convicted of capital murder, and not given a death sentence, he will not be released until the age of sixty, and his probability for violence is very low. Not satisfied to trust the parole board or its rules, the Legislature enacted the McDuff Rules in law; today they are called the "McDuff Laws." For convicted capital murderers, the idea that people in prison can change for the better, essential to the concept of any parole system, suffered a near-fatal blow.

It is harder to link McDuff to the intolerant atmosphere that extended to clemency, but he almost certainly contributed to what Jonathan R. Sorensen, an assistant professor at the University of Texas, Pan American, called a "sham." "I would say that clemency in Texas is a legal fiction at best," added Judge Morris Overstreet, a member of the Texas Court of Criminal Appeals, in an opinion in the Karla Faye Tucker Case (see Prologue). From 1972 to the day Tucker was executed in February, 1998, only thirty-six of 180 convicts bound for execution were approved for clemency. Not one was granted for "humanitarian" reasons. Texas has an historical attachment to the death penalty, but after McDuff, death penalty advocates had a poster boy, a visual representation of one example of the chance a state takes when it shows mercy.

"The Karla Tucker Case will become the clemency decision of this centuryand how it is handled will have a lasting effect on this issue. Is it in the best interest of society to kill a reformed person, a rehabilitated person? If we decide not to give her clemency, we should not decide to give anyone clemency," said Gary Schwartz, a University of Arizona pro-

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fessor. Texas answered his question when the parole board voted 16-0 (with two abstaining) against clemency for Tucker. Would she have gotten clemency had McDuff not infuriated an entire state with his horror? Maybe. Who knows? But his name came up constantly during the debate as an example of how there is no such thing as a
guaranteed
sentence of life without the possibility of parolehe sure didn't help her.
³²

For the rest of his life Kenneth Allen McDuff was the most despised inmate in the entire Texas prison system, because he brought about a prison expansion so large it guaranteed that every single inmate would serve a longer sentence. On Death Row at the Ellis Unit, McDuff was placed in administrative segregation, normally saved for the most dangerous of inmates. He was placed there, however, for his own protection.

<><><><><><><><><><><><>

1 David Counts; Buddy Meyer;
Austin American-Statesman,
July 7, 1992.

2 David Counts.

3 David Counts; Buddy Meyer; Alan Sanderson.

4 Ibid.;
Austin American-Statesman,
April 24, 1993.

5 Texas Court of Criminal Appeals,
State of Texas v Kenneth Allen McDuff,
#71,700, delivered January 29, 1998.

6
State of Texas v Kenneth Allen McDuff,
SOF in Cause #93-2139, Volume IA-C, pgs. 78386.

7
State of Texas v Kenneth Allen McDuff,
SOF in Cause #93-2139, Volume IA-C, pgs. 22134 and 78386;
Austin American-Statesman,
April 24, August 12 and September 11, 1993; Buddy Meyer; David Counts.

8 David Counts; Buddy Meyer.

9
State of Texas v Kenneth Allen McDuff,
SOF in Cause #93-2139, Volume VI, pg. 122.

10
State of Texas v Kenneth Allen McDuff,
SOF in Cause #93-2139, Volume 2, pgs. 2326, and Volume 3, pgs. 11022.

11
State of Texas v Kenneth Allen McDuff,
SOF in Cause #93-2139, Volume 4, pgs. 56, 119, 13038, and Volume 6, pgs. 122 and 139; Don Martin;
Austin American-Statesman,
August 13, 1993.

12
State of Texas v Kenneth Allen McDuff,
SOF in Cause #93-2139, Volume 7, pgs. 413.

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