Dead Wrong?

Could the case of Jerry Lee Hogue prove the state of Texas dead wrong?

Hogue was executed more than two years ago. He insisted he was innocent until the moment he died. A last-ditch request for DNA testing was turned down.

Over the last few years, DNA testing has led to the release of eight men on death row in the United States. Illinois officials are so concerned about wrongful convictions that the state has declared a moratorium on executions. But Texas continues. Texas Governor George W. Bush, who has presided over 124 executions, says he is certain not one of them was a mistake.

"These are people who were found guilty by a jury of their peers," Gov. Bush said recently. "These are people who have had full access to the courts of law. There's no doubt in my mind that each person who's been executed in our state was guilty of the crime committed."

Not everyone shares the governor's absolute confidence. Dan Rather reports on the Hogue case.

"Executing innocent people is wrong," Hogue said in an interview done a week before he was executed. "I'm not saying everyone down here is innocent. I know that. But if one person is innocent, then the system has failed."

In January 1979, a house in Arlington, Texas, erupted in flames. Hogue had known the three people who lived at the house for only a few days. In the ruins, firefighters found the body of a young woman, who had been bound and who burned to death in a back bedroom. The two other residents survived and told police Hogue had taken them hostage and raped the women.

The two survivors, Steve Rennick and Mindy Crawford, testified that Hogue spread gasoline through the house and set it afire. Hogue said Rennick had done it. The jury convicted Hogue and sentenced him to death.

Almost 20 years later, a few weeks before Hogue was scheduled to die, Rennick was charged in another arson case, with burning down his own house in 1998. Comparing the evidence in both fires, arson investigator Joseph Stewart began to worry that the state of Texas might be on the verge of executing an innocent man. He began helping Hogue's lawyers, trying to obtain a stay of execution so that authorities could investigate further.

Hogue did have a record. In Colorado, in the 1970s, he had been convicted of raping his ex-wife. That case helped convince Texas prosecutor Rufus Adcock that Hogue was guilty in the arson-murder case.

Years after Adcock won a death sentence against Hogue, his Colorado rape conviction was thrown out. Since the new evidence about Rennick surfaced, the retired prosecutor was troubled - but only to a point. He says now that if he had known then what he knew now, he would have given a polygraph test to both Hogue and Rennick.

But at the time, neither received polygraph tests. DA testing didn't even exist at the time of the trial.

In 1998, three days before Hogue was set to die, he gave a DNA sample to one of his lawyers, Walter Long. Hogue's attorneys filed court documents asking that the DNA evidence taken from the murder victim's body be handed over for comparison. The request was denied.

The case against Hogue had always been strong. It included eyewitness testimony that he had raped the victim and started the fire. An autopsy was done on the woman's body to see if she had been raped. Those tests were inconclusive, in part because the science then wasn't as sophisticated as it is now. Twenty years later, just before Hogue was executed, he was denied the chance to see if the new science could help him, by comparing his DNA to the evidence collected in 1979.

Attorney Peter Neufeld specializes in cases where new DNA testing has proved dozens of inmates innocent. "It is the single greatest advancement in the criminal justice system since the invention of the fingerprint," he says. But most states make it difficult to get the new testing done.

"Right now, you could get a stay of execution in Illinois and New York for a DNA test," Neufeld says. "Those are the only two states which have a statute which authorizes that right. But in the other 48 states, there is no similar right. And, in fact, in 33 of the 50 states, you can't even go back into court if you have overwhelming evidence of innocence after a period of six months after the conviction."

Two days before he was set to die, Hogue began saying goodbye to his family.

"He said, 'Sis, I'm tired of fighting,'" recalls his sister, Ann Hickman. "He said, 'I've made peace,' and he says, 'I'm ready to go.' And I told him, I said, 'Jerry, don't talk that way. You're going to get a stay.' But I believe he was ready."

Stewart, the arson investigator, kept working to win a stay. On March 11, 1998, the morning of the execution, Stewart felt he had received a major break: A woman signed a sworn statement saying Rennick had been bragging about getting away with that murder.

"She had no reason to lie to me," Stewart says of the woman. "From experience, I've gotten pretty good (at judging) when somebody's being truthful. And from all indications, she appeared to be telling the truth to me."

He faxed the statement to Gov. Bush's office and waited. In Huntsville, where the execution was due to take place, the final countdown began.

Rennick says he didn't do it and that the 1998 arson fire at his house was just a coincidence. "It just so happens my house caught fire about the time they did all this," Rennick says of the final stages of Hogue's case. "His defense attorneys came upon that, and they thought there was some sort of connection."

The arson charge against Rennick was ultimately dropped as part of a plea bargain. Rennick says he's not surprised that his name keeps coming p in the Hogue case. "I figured it would be around forever in my life," he says. "A lot of stuff happened that night to a lot of people. It's a pretty long ordeal just going through all the trials."

Among those present to witness Hogue's execution was Mindy Crawford, who had testified against Hogue almost two decades ago.

The warden asked Hogue if he had any last remarks. Hogue delivered his remarks to Crawford, according to National Public Radio reporter Dan Collison, who was also there.

Recalls Collison: "He said, 'Mindy, I am with you, honey. I don't know why you're doing this. But I forgive you. You know he's a murderer. He will do it again. You're lucky you're still alive.' He then turned to his friends and told his friends to tell his family that he loved them. Turned back to Mindy Crawford and said, 'Mindy, you can stop this.' Then he turned, looked up at the warden and said, 'OK, warden, I'm ready.'"

"It was eerie," Collison says. "Either he was in effect torturing her again with these remarks, if, in fact, he was the killer. And if he was innocent, then this woman was helping to execute an innocent man."

Crawford stands by her story.

When he heard that Hogue had been executed, arson investigator Stewart became upset. "I wasn't angry," he says. "I was just in disbelief. I figured he'd been in there 20 years. What was 30 days if there was some doubt?"

DNA tests would not have taken 30 days. They take about eight hours and cost about $4,000. The results could have proved Hogue guilty or innocent.

Today, in criminal cases, DNA testing is redrawing the lines between guilt and innocence, life and death.

"The last words he said to me was he loved me, and that he didn't do it," Hickman recalls. "He had a saying 'Keep the faith.' That's what I put on his tombstone: Keep the faith."

60 Minutes II has formally asked Texas authorities to make available the DNA evidence recovered from the victim in Hogue's case, so it could be tested against the hair sample he left behind. They have been looking for it since last week. So far, they have been unable to find it.