'Not guilty' but not free

By CHUCK LINDELL
Cox News Service
Apr. 24, 2007

The woman's body lay in the Nacogdoches woods, partially unclothed and stabbed repeatedly.

The 7-year-old boy lay crying in the back seat of a nearby Buick, blood leaking from 20 stab wounds.

Nothing connected the white woman and black child beyond blood splatters running from the car to the woods. But nine days later, police made an arrest that linked both brutal attacks to a local man: Jimmy Lee Page, a convicted murderer out on parole.

It was August 1987, and prosecutors vowed to see Page put to death. When pretrial publicity forced the trial's move from East Texas to Austin, Page's lawyer was delighted. Austin, he thought, would give a fair shake to a black man accused of killing a white woman and nearly killing a child.

Sure enough, jurors were swayed by the lack of evidence against Page and found him not guilty. Afterward, several even shook the defendant's hand.

But while everybody else filed out of the courtroom, Page did not go free — not that day nor any other. Almost 20 years later, he remains Prisoner 258222, still doing time despite the not guilty verdict.

That may be inconsistent with the textbook version of justice, dispensed by a jury of peers and validated with the bang of a judge's gavel. But as the State v. Jimmy Lee Page demonstrates, that wasn't the kind of justice he got.

Now 52, Page is in prison today because state officials revoked his parole — trumping the jury's verdict with their own finding of guilt. It's a common practice. Last year, 91 Texas parolees were returned to prison after being charged with a new crime, even though the charges against them were later dropped or they were acquitted in court.

Bound by looser rules than a court of law, parole officials reached their verdict on Page after hearing testimony from only one witness, a police detective who declares Page is "guilty as homemade sin." In the years since, he was denied parole a dozen times, most recently in early 2006.

Jurors in the Austin trial, unaware of Page's fate, were shocked that parole officials could nullify their verdict. Page's lawyer says he believes they abused their authority.

A defense attorney for 36 years, John Heath Sr. admits most of his clients have been guilty. Page, he says, was not.

"I think a horrible injustice was done there," Heath said. "That's the one case that still bothers me."

Police say the parole system worked the way it's supposed to, protecting the public from a dangerous felon.

"Jimmy Lee Page is a serial murderer," said Cliff Lightfoot, a retired Nacogdoches police detective.

"The first murder he committed (in 1975) was a friend of his. He's prone to overkill, and he shot that man many, many times with a single-shot rifle. It pretty much proves intent if you have to reload, shoot, eject, reload and shoot again."

Page pleaded guilty to the 1975 killing and received a life sentence. He served 11 years in prison and was paroled eight months before the Nacogdoches stabbings.

"If he's ever let out, he will kill again. It's in him," Lightfoot said.

'Don't let me die'

"Please don't let me die," Joe Howard Jr. whispered to paramedics.

Stab wounds circled the skinny child's neck and back, and several inches of intestine bulged from a gash across his belly button. As the ambulance raced away, police turned to the bizarre crime scene at St. Matthew's Baptist Church in a rural, wooded corner of Nacogdoches.

Blood was smeared on a door of the small wooden church. The Buick Regal in which Joe was found sat about 10 feet away, the back seat smeared with the boy's blood, the front seat empty save for a purse with its wallet missing.

Police fanned out into the nearby woods and found the body of the Buick's owner, Shirley Marshall, a 37-year-old house cleaner, wife and mother of a teenage son.

Investigators said Marshall had driven to St. Matthew's Church to discuss a cleaning job — with whom isn't known — and arrived in the parking lot about 8:30 a.m. on Aug. 13, 1987.

There were no witnesses to what happened next.

A short time later, Joe Howard was taking a shortcut to his grandmother's house when he stumbled across a man emerging from the woods behind the church. He offered to show Joe some puppies and led the child down a zigzag trail to Marshall's body, naked from the waist down.

"He said, 'There's your puppies,' " Joe would testify later. "But I didn't have time to see her because he throwed me down. He throwed me down and started stabbing me. I played like I was dead so he would quit stabbing me."

The man ran. Joe waited, then stumbled back down the path. The church door was locked, so he crawled into the only shelter he could find — the back seat of Marshall's Buick.

He closed the door behind him.

'That's the man'

Lightfoot was the first officer to interview Joe — the two developed a bond that lasted long beyond the investigation — and he was back in the child's hospital room nine days later with a police book of mug shots.

When Joe didn't see his attacker among the 354 photos, Lightfoot showed him 14 Polaroid snapshots of men who lived near the church.

Lightfoot flipped the photos over six at a time, watching the boy.

"Suddenly, he pushed himself back into the bed, got real wild-eyed and urinated all over himself," Lightfoot said. "I asked, is this the man? He pointed to Jimmy Lee Page, and he said, 'That's him.' "

Page was arrested a short time later at his mother's house. He had been staying there, in a predominantly black neighborhood of modest homes near St. Matthew's, since his release from prison.

Three days later, Page was one of seven men put into a lineup for Howard to view.

"As soon as they all walked into the room, he started getting all excited and pointed to Jimmy Lee Page and said, 'That's the man who stabbed me,' " Lightfoot said. "So we were in good shape."

At least eight weeks later — the exact date is unknown — something happened that nobody who then served in the district attorney's office can explain. A second lineup was held with six men, none of whom were Page. The child was asked if he saw his attacker. Yes, he said, pointing to Suspect Four.

Police were bewildered and angry. A shaky witness is a defense lawyer's dream, and the second lineup was like being hit by friendly fire.

Tempers flared, and one cop almost got into a fistfight with then-District Attorney Herb Hancock.

Experts who specialize in memory and eyewitness testimony say the added lineup revealed the fallibility of Joe's memory. But to Lightfoot, the lineup was a crucial mistake that undercut the entire case against Page.

"In my opinion, that's exactly why (the trial) went the way it did," he said. "We had a positive, positive ID on him, and that's really what we based our case on."

'I don't blame the kid'

Heading into trial in Austin in July 1988, prosecutors still had no physical evidence tying Page to the crimes.

They had an 11-year-old girl, who lived between Page's house and the crime scene, who testified that Page ran by her house twice on the morning of the murder. They had a theory of the killer's path, established by the discovery of Marshall's torn pants, along a route that led to the Page house.

But no incriminating evidence was found at the murder scene, Marshall's car or Page's house.

Tests indicated Marshall was not raped, and there was no forensic evidence to help identify her attacker.

A knife found across the street from St. Matthew's five days after the stabbings yielded no blood or fingerprints and was not conclusively tied to the murder. And a forensic artist's sketch, made with Joe's help before he identified Page, showed a man with much shorter hair and different features than the accused.

Joe was the only witness. By the time he took the stand on day four of the trial, the case against Page hinged on him.

Sitting next to his mother, Joe recounted in a soft voice the stabbings, his search for safety and his recovery. Three times he identified Page as his attacker. It was potent, gripping testimony.

Then it was defense lawyer Heath's turn, and everything changed.

The climactic moment came when Heath asked the child to pick his assailant from the same Polaroids used for his first identification of Page. Even with Page sitting nearby, Joe picked the photo of another man.

"So now we have two misidentifications — the misidentification in front of the jury, then the misidentification from the (second) lineup," Heath said recently. "Now, I don't blame the kid. He had been through a horrible experience. He almost died. But he just didn't know."

Page never took the stand. In fact, the defense called no witnesses — a risky move meant to signal that prosecutors had failed to make their case.

As they began deliberations, jurors took an early vote to see where they stood. Memories are foggy, but most of the five jurors interviewed believe the first vote was 9-3 or 8-4 in favor of acquittal. The number of guilty votes proceeded to shrink until, after less than four hours, jurors reached a consensus of not guilty.

"There were just a lot of holes in the prosecutor's case. He didn't tie it together and tie him to the crime," said foreman Fred Cole, who now lives in suburban Oklahoma City.

Oren Nicholas, now 73 and living in Buda, twice voted guilty before changing his mind.

"I wasn't too sure. I just wanted to hold out," he said. "I changed it because of the lineup. I dismissed the young kid's testimony. And I thought it was a rush to judgment" by police.

Jurors, who were not told of the 1975 murder, said they left the courtroom confident they had done their job.

'We'll never know'

Before the Austin court found Page not guilty, the Texas prison system had already come to the opposite conclusion.

Two months after his arrest, Page was summoned to a parole revocation hearing inside the Nacogdoches County Jail. Detective Lightfoot was the only witness — Joe was excused on the advice of a psychologist despite vigorous objections by defense lawyer Heath.

Afterward, the hearing officer concluded that Page had tried to stab Joe to death and recommended that his parole be revoked. (Charges were not yet filed in Marshall's death.)

Then as now, parole hearing officers need only determine whether evidence of a crime is probably true — a far easier burden of proof than in criminal trials, where guilt must be established beyond a reasonable doubt.

Other practices have changed, however, making it likely that Page would be treated differently today.

For almost all arrested parolees, revocation hearings are no longer held before their criminal trial. The change was made about eight years ago to improve efficiency — revocation is much easier after a conviction — and to address prosecutor complaints that the hearings gave defendants an early peek at the evidence against them.

Exoneration, however, does not mean a parolee's problems are over.

Last year, parole officials pursued revocation hearings for two out of three parolees who had been acquitted of charges or whose charges were dropped. Of those 1,524 exonerated parolees, 91 were sent back to prison (7 percent, compared with 25 percent for all revocation hearings).

"Criminal charges can be dismissed for a variety of reasons," said Bryan Collier, head of the Texas Department of Criminal Justice's parole division. The process "is our way of getting a clean review before we say we're going to cut you loose."

Parole revocation hearings have changed in other ways that might have benefited Page, due largely to improved legal training for hearing officers, parole board officials acknowledge.

In 1987, Heath argued — unsuccessfully — that excluding the child's testimony would deny Page's right to confront his accuser. He also objected to much of Lightfoot's testimony as inadmissible hearsay — information from somebody other than the person testifying.

Today's hearing officers would probably agree with Heath's objections, said Gary Cohen of Austin, one of the state's leading parole defense lawyers.

"Back in '87, hearing officers didn't have much training. . . . Their interest was pretty much geared to moving people back into prison," said Cohen, who has helped train hearing officers for the parole board.

Both Page and his lawyer believe Joe's first-hand testimony could have changed the outcome of his revocation hearing.

"I ain't never seen that kid before in my life," Page said from prison. "I know all this would have probably been over with. It never would have went to trial."

Said Heath: "His parole was revoked simply by a police officer coming in and saying if the little boy was here, he would say Jimmy Lee Page stabbed him. Well, he might've said that, but we'll never know."

'How can that be?'

Once back in his Huntsville-area prison, Page re-entered the secretive parole process that determines who stays in prison and who goes free.

Page expected to be released. His arrest had resulted in a not guilty verdict, and he had violated no other conditions of parole while free.

Instead, the Nacogdoches stabbings helped keep Page behind bars.

In what appears to be circular reasoning, one of the rationales for denying parole was the fact that Page's parole had been revoked for the crimes.

Eleven more denials followed.

"So the months went into three years, three years went into six years, and I've been here ever since," Page said. "How can that be?"

Page said he has never spoken to the parole officials who decide his fate. Like most inmates, his case is reviewed on paper by people who have little time for his or any other case.

Each of Texas' six parole offices make an average of 230 parole decisions a week — about one every 10 minutes in an eight-hour day — in addition to dozens of decisions on parole revocation and changes to conditions of supervision.

But despite their importance, parole files are not open to the inmate or the public, and there is no way to guarantee that information in them is accurate. Critics say errors are common, and indeed, Page's file appears to contain a major mistake — pegging him with the wrong murder in 1975.

A summary of Page's file prepared for the Austin American-Statesman said Page shot a 31-year-old convenience store clerk during a robbery. In reality, Page pleaded guilty to killing and robbing Willie Smith, a 36-year-old co-worker at the Lufkin Foundry, a metal-casting plant about 20 miles south of Nacogdoches.

It was payday, and Smith had cashed his $150.41 check shortly before he and Page went to a secluded area to shoot beer cans with Page's .22-caliber rifle. Page told police he accidently grazed Smith's thigh, then continued shooting when Smith angrily tried to retaliate. Afterward, he took Smith's money.

A squirrel hunter found Smith the next day. He had been shot in the head, shoulder and once in each side.

Page received a life sentence for the crime but was eligible for parole in five years. He served 11.

By the time he re-entered prison, however, Texas had begun cracking down on early paroles, and today a life sentence for murder carries a mandatory 35 years in prison.

All told, Page has spent 31 years behind bars.

'It's not the time'

Soon after Page's acquittal, prosecutors dropped the attempted murder charge related to the attack on Joe.

Hancock, the district attorney who prosecuted Page, lost his next election while Heath, his opponent, became established as one of Nacogdoches' leading defense lawyers.

"It actually caused my business to get better because people thought I had walked a guilty man," Heath said. "I'll take all the credit I can get, but I won that case because they didn't have a case."

Joe Howard remained in Nacogdoches for at least a decade, Lightfoot said. When Howard was 16, the detective helped him buy new clothes for a part-time job at a grocery store. "He didn't know who else to come see," Lightfoot said.

The two lost touch shortly thereafter, and Howard could not be located for this story. But Lightfoot kept tabs on Page through a friend at the parole division.

"It's good to know that son of a bitch is not getting out of the pen anytime soon," said Lightfoot, who retired as a Nacogdoches detective in 2005, found civilian life boring and became a "rookie" patrol officer in nearby Center.

While in prison, Page has been disciplined once for a minor matter and is a minimum-custody inmate — the lowest classification for somebody with a life sentence. His next parole review is set for February 2008, though it could come sooner to correct mistaken information about the 1975 murder, said Abel Alaniz, director of administration for the parole board.

After a dozen parole denials, though, Page isn't hopeful.

"It can just go on for the next 20 years," he said. "It's been hard. It's not the time. Doing time for no reason — that's hard."