The New York Times

July, Friday 25, 1997

In America

BOB HERBERT The

Wrong Man

It was not a big deal. On a rainy Thursday evening in April David Wayne Spencer, 38 years old, heavily tattooed and 60 pounds overweight, was walked into the death chamber of the state prison at Huntsville, Tex. He -made a few final comments, was strapped to a gurney and given a lethal series of injections - sodium thiopental, which rendered him unconscious, pancuronium bromide, which collapsed his lungs, and potassium chloride, which stopped his heart. He was pronounced dead at 6:32 P.M. last April 3.

The crime for which Mr. Spence was executed occurred on July 13, 1982. Three teenagers - Jill Montgomery, 17, Raylene Rice, 17, and Kenneth Franks, 18 - were attacked, tied up and stabbed to death in a park near Lake Waco in Waco, Tex. The girls were also believed to have been raped.

Mr. Spence was tried twice and convicted twice in connection with the murders. The prosecution charged that he had been hired by a convenience store owner to, kill another girl, and that he mistook Ms. Montgomery for the girl he was supposed to kill. Ms. Rice and Mr. Franks were killed by Mr. Spence and two confederates because they were witnesses, the prosecution charged. Two juries agreed. Mr. Spence's final appeal was turned down by the Supreme Court just an hour before he was executed.

Nevertheless, a problem remains. Mr. Spence was almost certainly innocent.

This is not a hypothesis conveniently floated by death-penalty opponents. Those who believe that David Spence did not commit the crime for which he died include the lieutenant, now retired, who supervised the police investigation of the murders; the detective who actually conducted the investigation, and a conservative Texas businessman who, almost against his will, looked into the case and became convinced that Mr. Spence was being railroaded.

The retired lieutenant, Marvin Horton, said in sworn testimony: "I do not think David Spence committed this crime."

In an interview Wednesday, Ramon Salinas, the homicide detective who investigated the murders, said: "My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved."

The businessman, Brian Pardo, was asked for help by Mr. Spence last fall. "The probability of him being innocent seemed very small in my mind at that time," Mr. Pardo said. "He was on death row. It just seemed to me that most people there are guilty, and they all say they are innocent."

Mr. Pardo agreed to underwrite an investigation that would last only until some evidence turned up showing that Mr. Spence was guilty. No evidence ever did.

"It was all entirely to the contrary," Mr. Pardo said. "There is no chance that he committed those murders."

The murders were horrifyingly violent and bloody. There was a great deal of contact between the victims d and the killers. But there was no physical evidence connecting, the crime to Mr. Spence or his co-defendants, both of whom are incarcerated for life.

Strands of hair including pubic hairs, that most likely came from the killers were found on the victims.

But an F.B.I. analysis determined that none of the hairs came from Mr. Spence or his co-defendants.

The case against Mr. Spence was pursued not by homicide detectives but by a narcotics cop named Truman Simons who left the Police Department under unusual circumstances, went to work for the county sheriff and in that capacity conducted an obsessive, unprofessional and widely criticized campaign to nail Mr. Spence. (There will be more about this in future columns.)

Mr. Simons cobbled his case together from the fabricated and often pre-posterous testimony of inmates who were granted all manner of favors in return. Court papers showed that some were even given the opportunity to have sex with wives or girlfriends in the district attorney's office.

Robert Snelson, one of the inmates who testified against Mr. Spence, would say later: "'We all fabricated our accounts of Spence confessing in order to try to get a break from the

state on our cases."

Brian Pardo's involvement in the David Spence case has been a disillusioning experience. "I'm a Republican," he said. "I'm for the death penalty generally. But this has shaken my belief in the justice system."