his three confessions actually match the testimonyof the other eyewitnesses.For example, Ken Dorman was shopp<strong>in</strong>g atthe M<strong>in</strong>imax that night, stepped out justbefore the robbery took place, and turnedback to get someth<strong>in</strong>g else when he heard thegunshot. He saw a black man with a gun andwatched through the w<strong>in</strong>dows as the customersand employees <strong>in</strong>side moved away fromthe checkout area toward the back of thestore. From his car, Dorman saw three peopleleave the store, get <strong>in</strong>to a car, and drive northon Cameron Road. Dorman spotted a patrolmanpull<strong>in</strong>g <strong>in</strong>to the M<strong>in</strong>imax park<strong>in</strong>g lot. “Iflagged him down and I told him at that timethat the car had just left and that if he wantedto, we could see if we could stop them becausethey were go<strong>in</strong>g on Cameron Road,” he testified.<strong>The</strong> cop decl<strong>in</strong>ed to do so.Although he’d gotten a long look at the flee<strong>in</strong>grobbers, Dorman was unable to identifyany suspects for the police, despite review<strong>in</strong>ga live six-man l<strong>in</strong>eup that <strong>in</strong>cluded both Jacksonand Hopes, and also police mug shots. “Iwas never shown any pictures of the people <strong>in</strong>question,” he testified at Barrs’ trial.“In fact, you have not identified anyone?”one of Barrs’ lawyers asked. “No.”Contam<strong>in</strong>ated TestimonyIndeed, from the record, none of the eyewitnesseswas able to give much of a descriptionof the robbers, though they agreed that therewere three of them – two men and a woman– and that they were black. One of the menwas described, generally, as tall, the other asshort and stocky. <strong>The</strong> woman was describedonly as th<strong>in</strong>; one employee said she’d beenwear<strong>in</strong>g bell-bottoms and a halter top. EvenHenn<strong>in</strong>g, the assistant manager who hadretrieved money from the safe, was unable toprovide police a description, and he was subsequentlyunable to identify any suspects frommug shots. He was not called as a witness byeither the prosecution or the defense. (Of thenearly two dozen people <strong>in</strong>side the store, thestate called just seven to testify; Barrs’ defensecalled only one, a woman who said she reallydidn’t see anyth<strong>in</strong>g.)<strong>The</strong>re was a dearth of usable <strong>in</strong>formation tohelp identify the culprits, and the policereport chronicl<strong>in</strong>g the <strong>in</strong>vestigation is th<strong>in</strong> anddisjo<strong>in</strong>ted. <strong>The</strong>re are no diagrams or photos ofthe store or of the evidence – a deficiency thatNapier, the lead <strong>in</strong>vestigator who retired <strong>in</strong>1995, noticed after review<strong>in</strong>g the police reportat the <strong>Chronicle</strong>’s request. “That’s one of theproblems,” he said. “I wish we would’ve hadphotographs of the build<strong>in</strong>g itself, or at least adiagram.” (He couldn’t recall if such th<strong>in</strong>gswere once part of the file.)Barrs’ name first appears <strong>in</strong> the report n<strong>in</strong>edays after the robbery. On July 21, 1973, ahomicide <strong>in</strong>vestigator told Napier that while<strong>in</strong>terrogat<strong>in</strong>g 17-year-old Marshall HugoGrant about his <strong>in</strong>volvement <strong>in</strong> a str<strong>in</strong>g ofarmed robberies, the kid said that he knewwho was <strong>in</strong>volved <strong>in</strong> the M<strong>in</strong>imax robberyand named Jackson, Hopes, Barrs, and Hopes’then-wife, Marilyn. (Grant, currently <strong>in</strong> theBarrs was paroled from prison <strong>in</strong> November 1972, just n<strong>in</strong>e months before the robbery of the M<strong>in</strong>imax at Cameron Village.were composed because so little documentationstate’s prison psychiatric unit where he is photo spread Napier brought to her workplace.NEWS THE LONG VINDICATION CONTINUED FROM P.21 serv<strong>in</strong>g a 33-year sentence for <strong>in</strong>jury to a disabledperson, did not respond to a letterrequest<strong>in</strong>g <strong>in</strong>formation.) <strong>The</strong> same day, Napierbrought Yura to the police station to reviewmug shots, <strong>in</strong>clud<strong>in</strong>g Jackson’s. “She pickedthe photograph of Andrew Lee Jackson asbe<strong>in</strong>g the one that looked most like theshorter of the two subjects she saw <strong>in</strong>side thestore,” Napier wrote. “However, she statedthat she could not make a positive identificationbased on that photograph.”Napier tried at least two more times to seeif Yura could identify the robbers, and at trial,the str<strong>in</strong>g of witness IDs of Barrs, howevertentative, must have had a cumulative impact.Ultimately, Yura testified that Barrs was thetall man who’d robbed the store. She addedthat Barrs had come back to the storeroom totell the employees and customers to stay put,and supposedly said, “Don’t any of you motherfuckersmove or I’ll kill you.” (Barrs’ attor-“He laid [the photos] out and said,‘Well, if this could have been any of them,could you tell me which one?’ And I pickedout two pictures.”“All right. Now, were the two pictures thatyou picked out two of the men who were <strong>in</strong>that store, or do you know?” Barrs’ attorneyasked. “Well, now, [Napier] said that heth<strong>in</strong>ks these were the ones that [the police]picked up.”<strong>The</strong> record shows that Napier either confirmedor suggested that Barrs was the rightsuspect to at least Montgomery and Matthews.Indeed, dur<strong>in</strong>g the pretrial hear<strong>in</strong>g, Napiersaid he’d done just that when asked whetherhe’d let Matthews know that he believed Barrswas one of the robbers. “I don’t th<strong>in</strong>k therewas any doubt <strong>in</strong> [Matthews’] m<strong>in</strong>d that it wasmy op<strong>in</strong>ion that Ronnie Barrs was <strong>in</strong>volved,”Napier said. Although Barrs’ attorneys, <strong>in</strong>clud<strong>in</strong>gformer crim<strong>in</strong>al defense lawyer Keithis available. But he noted that at least <strong>in</strong>Yura’s case, more than one suspect was <strong>in</strong>cluded<strong>in</strong> each selection of photos, and that is alsoa poor practice. “In a conventional l<strong>in</strong>eup,there is a one-<strong>in</strong>-six chance of wrongful identification.That’s the American standard of riskto <strong>in</strong>nocent people,” he said. “It’s roll<strong>in</strong>g onedie. It’s a game of chance.”If a witness is made to feel that he or shemust select somebody – as <strong>in</strong> Barrs’ case,where witnesses reported they were told toselect the person that most resembled theperson they saw – there is at least a one-<strong>in</strong>-sixprobability he or she will get it wrong. Done asNapier did it, “he can make it so he has morethan a one-<strong>in</strong>-six chance; he can make it sothere is more than one suspect – even make itso that everybody is a suspect,” Malpass said.“So, given the identification procedures <strong>in</strong> thiscase, it’s very likely that one of the suspectswill be on trial, whether or not they’re guilty.”neys warily noted at trial that it was the firsttime Yura ever recalled that <strong>in</strong>teraction.)Rodney Matthews, a cashier, also testified thatBarrs had come to the back and po<strong>in</strong>ted agun; John Montgomery testified that he waspretty sure it was Barrs who’d hit him.Montgomery’s dad, Charles, who’d arrived atthe store just as the robbery was conclud<strong>in</strong>g,said that he was pretty sure it was Barrs he’dseen across the park<strong>in</strong>g lot, walk<strong>in</strong>g by himselfaway from the front of the store. F<strong>in</strong>ally,Ignacio Covarrubias said he wasn’t positivebut that Barrs looked a lot like the man who’dcome to the back of the store wav<strong>in</strong>g a gun.Yet none of the IDs were firm, and Barrsbelieves that it was Napier’s <strong>in</strong>fluence overthe witnesses that had them f<strong>in</strong>ger him evententatively. <strong>The</strong> IDs were suggested to thewitnesses, Barrs recalls. “That’s the way itwas all dur<strong>in</strong>g my trial. <strong>The</strong>y went from thatto an identification.”<strong>The</strong> trial transcripts appear to confirmBarrs’ suspicions. John Montgomery, Yura,and Matthews were each shown multiplephoto l<strong>in</strong>eups, and when they were unable tochoose photos, they said, Napier told them tochoose someone that looked most like thesuspects they remembered. “I didn’t recognizeany,” Yura said dur<strong>in</strong>g a pretrial hear<strong>in</strong>g of aJANA BIRCHUMKisner, who had only recently graduated fromlaw school, tried to have the eyewitness statementsuppressed, Judge Tom Blackwellallowed the IDs to be presented to the jury.That was a mistake, says Hampton. Barrs’case is “a failure of the courts,” he says, andshould have been overturned long before now,based on an <strong>in</strong>sufficiency of evidence – theonly evidence l<strong>in</strong>k<strong>in</strong>g Barrs to the crime areJackson’s <strong>in</strong>consistent confessions and thetentative IDs made by witnesses who saidthey’d been encouraged to th<strong>in</strong>k they’d f<strong>in</strong>geredthe right person. “<strong>The</strong> suggestion of anID, that is a textbook example of exactly theway not to ID someone,” he said.That is <strong>in</strong>deed the case, says Roy Malpass, aprofessor of psychology and crim<strong>in</strong>al justice atthe University of Texas at El Paso, where he isa memory researcher and a lead<strong>in</strong>g expert <strong>in</strong>eyewitness identification. Malpass reviewedpretrial testimony regard<strong>in</strong>g the eyewitnessIDs made <strong>in</strong> the Barrs case. “Napier appears tohave communicated to the witnesses who hethought was the offender, and that is a seriousprocedural mistake,” he said. “It’s not just giv<strong>in</strong>g[the witnesses] feedback; it’s lett<strong>in</strong>g themknow” who police believe is responsible – andthat’s powerful. Malpass said it’s difficult toknow how Napier’s l<strong>in</strong>eups and photo arraysMalpass emphasizes that he cannot tellwhether a witness’ selection <strong>in</strong> a particularcase was right or wrong. But he can expla<strong>in</strong>what techniques are more reliable for us<strong>in</strong>g<strong>in</strong> eyewitness identification. His conclusionon Barrs’ case? “<strong>The</strong> eyewitness evidence <strong>in</strong>this case is so contam<strong>in</strong>ated by policeactions that I cannot imag<strong>in</strong>e anyone <strong>in</strong> thecrim<strong>in</strong>al justice system these days wouldgive it any credibility.”A Long Time AgoEven Napier has no doubt that were he<strong>in</strong>vestigat<strong>in</strong>g this case today, several th<strong>in</strong>gswould be different. <strong>The</strong>re would be many photostaken, for one th<strong>in</strong>g, and the report wouldbe beefier – Napier notes that he can’t eventell whether the police recovered the .38 used<strong>in</strong> the crime (the report is completely unclear),and if so, whether there was any ballistics test<strong>in</strong>g.“From read<strong>in</strong>g [the report] I couldn’t tellif there was enough physical evidence, withthe bullet itself, that might’ve been helpful,”Napier said. “I can’t tell <strong>in</strong> there either, and Ican’t remember.” As for deal<strong>in</strong>g with the witnesses,Napier said police always tried to present“similar look<strong>in</strong>g people” <strong>in</strong> photo l<strong>in</strong>eups,but as far as the composition of the l<strong>in</strong>eups <strong>in</strong>the Barrs case, he doesn’t remember.22 T H E A U S T I N C H R O N I C L E JANUARY 15, 2010 a u s t i n c h r o n i c l e . c o m
That witnesses were sometimes <strong>in</strong>consistentor offered few details at all doesn’t surpriseNapier. “That was always one of thehardest th<strong>in</strong>gs. Very few people that are<strong>in</strong>volved as the victim of a crime or the witnessto a crime can really be that specificabout what they saw or what they th<strong>in</strong>k theysaw,” he said. “And <strong>in</strong> a lot of cases, that’swhat you depend on more than anyth<strong>in</strong>gelse.” He speculates that the changes <strong>in</strong>Jackson’s story – from confession to confessionto testimony – might have had to do with“drug <strong>in</strong>volvement.” But Napier still doesn’tknow why Jackson would implicate Barrs <strong>in</strong>the crime if Barrs wasn’t there. “I was try<strong>in</strong>g toth<strong>in</strong>k, what purpose would it be for theseguys to implicate Ronnie if he wasn’t <strong>in</strong>volved?How would it serve them? And I don’t see thatit would have, but I cannot recall if they madeany deal with the District Attorney’s Office.”In 1964, when Napier jo<strong>in</strong>ed the department,there was no air condition<strong>in</strong>g <strong>in</strong> the“<strong>The</strong> eyewitnessevidence <strong>in</strong> this case is socontam<strong>in</strong>ated by policeactions that I cannotimag<strong>in</strong>e anyone <strong>in</strong> thecrim<strong>in</strong>al justice systemthese days would give itany credibility.”– Eyewitness ID expertRoy Malpassbare-bones Plymouth Belvederes that thecops drove on patrol. Most of the streets <strong>in</strong>East Aust<strong>in</strong> were unpaved, which meant,especially <strong>in</strong> the summer, that Napier wouldleave his patrol shift covered <strong>in</strong> a dirty shadeof gray. Over the years, Napier earned areputation for be<strong>in</strong>g a straight-shooter – aguy you liked or didn’t but who wouldalways call ’em like he saw ’em – a reputationno doubt enhanced by the 12 years hespent <strong>in</strong> APD’s Internal Affairs. “I’ll tell you,my gut feel<strong>in</strong>g is that Ronnie was there andhe was <strong>in</strong>volved. Based on what I read andwhat little I can actually remember,” he said.“But you know, who knows?” Napier concluded.“Hell, that’s been a long time ago.”What Is WhisperedWhether Jackson made a deal with theD.A.’s Office <strong>in</strong> exchange for his testimonyis also unknown. When asked about it onthe stand by Barrs’ attorney Keith Kisner,Jackson denied it. Kisner pushed, butJackson wouldn’t budge. Yet Kisner recallsnow that – although he’d been <strong>in</strong> jail formonths before testify<strong>in</strong>g – after he took thestand, Jackson walked out of the jail a freeman. “I asked him if he had a deal with theCONTINUED ON P.25RIDE WITH USDR. MARTIN LUTHERKING, JR. DAY | 1.18.10✦ROUTE 2 ROSEWOOD TO RUN EVERY 15 MINUTESFROM START OF SERVICE THROUGH 4 P.M.Buy a Day Pass on January 18, 2010 and ride Route 2 Rosewood to the MLK Day ceremonyat the Capitol and the festival that follows at Huston-Tillotson University. (2 blocks south ofRosewood & Sal<strong>in</strong>as.) <strong>The</strong>re is free park<strong>in</strong>g along Rosewood and Capital Metro has beefedup its local service to help replace the former MLK Shuttle. (Regular fares apply.) We hopeyou will cont<strong>in</strong>ue to ride with us as we celebrate the legacy of Dr. Mart<strong>in</strong> Luther K<strong>in</strong>g, Jr.Please visit capmetro.org for route maps and additional <strong>in</strong>formation. New fares apply.a u s t i n c h r o n i c l e . c o m JANUARY 15, 2010 T H E A U S T I N C H R O N I C L E 23
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