Excerpts from a video recording of Harper's interrogation - Video produced by John Hernandez; Interrogation video courtesy of Lewis Bowden via open records request

Reasonable Doubt:
The Conviction of Bobby Joe Harper

By John Hernandez
johnehrnndz@gmail.com

Editor's note: This story and video contain some explicit language

At 5:05 a.m. on Oct. 10, 1998, a shirtless, 18-year old Bobby Joe Harper was sitting in a harshly lit interrogation room and wiping his brow with a cloth. Detectives Steve Peyton and Scott Johnson of the San Marcos Police Department were sitting across from Harper and beginning to question him about a string of robberies committed in San Marcos, one of which ended in the homicide of a gas station clerk at the Conoco station at 1702 IH-35 North.

State's exhibit 8 from the 2000 trial of Harper is a photo of the Conoco gas station where the murder occurred - Courtesy of Lewis Bowden via open records request

Harper was their primary suspect. Early in the interrogation, Detective Peyton asked Harper about running away from a juvenile warrant, and Harper responded by saying he was scared. Peyton reassured him that they were not there to ruin his life.

Harper is now serving two consecutive life sentences.

Red Flags

By the standards of a small college town in Texas, the system worked like it was supposed to back then. Detectives investigated the murder, got a confession from their suspect, and the jury convicted the young black male, one of many in the Texas prison system.

But 20 years later, there are aspects of Harper’s case that do not add up for certain people in San Marcos. As problems with mass incarceration and the criminal justice system in the U.S. have begun to come under scrutiny, family and friends of Harper have continued to ask if Harper was convicted of a crime he did not commit.

Harper has also continued to try to appeal his case from inside the William P. Clements Unit in Amarillo.

The Texas Innocence Project lists possible predictors of a wrongful conviction, based on research from Jon Gould of American University, and Harper’s case has enough red flags to suggest they have a point.

Possible predictors of a wrongful conviction are listed above. The factors with red flags next to them appear to apply to Harper's case. - Graphic by John Hernandez

Suspicion

The detectives first suspected Harper because the modus operandi for the four robberies they were investigating was similar.

Michael S. Wenk, the Hays County District Attorney, outlined what he called the “common characteristics” of the crimes throughout the trial and in court records: A single black male, wearing pantyhose over his head and matching a consistent physical description, robbed four gas station/convenience stores using a small handgun during evening hours.

The third robbery was captured on surveillance video, providing law enforcement with a description of the suspect that was supported by the testimony of two clerks, Jay Weston and Robert Lackey, that were robbed in different stores Oct. 1, 1998.

The fourth robbery, on Oct. 8, 1998, ended in the death of a 42-year old clerk, Mohammad Yunus. There was no surveillance video of his death.

The San Marcos Police Department brought in three of Harper’s family members to view the video from the third robbery. Renay Crayton, Harper’s mother; Billy Joe Crayton, Harper’s father; and Shirley Edmear Crayton, Harper’s aunt, produced three statements that identified Harper, not by appearance, but by his voice and mannerisms.

A warrant was then issued for Harper’s arrest.

The Point of No Return

“I don’t even want to talk unless I have me a lawyer and go through this shit. I don’t have to go through this shit, all right?” Harper said to the detectives early in the interrogation.

He had already confessed to one of the robberies at that point. Immediately before his request for a lawyer, Harper said he used a toy gun in that robbery and then gave the toy to his little brother, which made Peyton laugh.

The interrogation continued after the request for a lawyer was made. Peyton launched into an explanation of what would happen to Harper next.

After one minute and 33 seconds, during which Peyton told Harper that he had a warrant for aggravated robbery that could put him in the penitentiary for the rest of his life, Johnson acknowledged that Harper had mentioned a lawyer and asked him if he would like to end the interview and speak with an attorney.

“Now?” Harper asks.

“Yes,” Johnson said.

“It’s fine,” Harper replied.

Hard of Hearing

When a suspect requests an attorney, the interrogation is supposed to end immediately according to the 1981 Supreme Court decision in Edwards v. Arizona. John Stickels, Harper’s court-appointed defense attorney, filed a motion to suppress the videotaped confession and questioned detectives about the interaction.

During the pretrial hearing about the confession, Johnson said the poor acoustics in the room may have had something to do with misunderstanding or not hearing Harper’s request for a lawyer and waiting to get clarification. He said that Harper mumbled and made an “unintelligible statement.”

In the transcript of the confession, the statements that were hard to hear are marked as “(Inaudible),” but Harper’s request for a lawyer was not one of them.

Johnson also said that he just heard the word “lawyer,” but, nevertheless, he allowed Peyton to tell Harper that he could be put away for the rest of his life after the request for counsel was made. Peyton also told Harper that he had a chance to get “this” off his chest and said he knew “what happened last night” was eating Harper up.

Johnson only stepped in and asked whether Harper wanted an attorney after Peyton tried to get Harper to confess again.

Peyton said he did not hear Harper during the interrogation. He described Harper as “very quiet, very low-spoken, hard to hear” to Wenk during the pretrial hearing on the admissibility of the confession.

At the same hearing, Stickels played the tape three times for Peyton. Peyton admitted that he laughed at the joke Harper made right before he requested a lawyer.

Peyton also claimed that Harper asked him “several questions” after requesting a lawyer, but the transcript of the confession shows Harper made only one statement after he made the request.

The sentence in between, the one asking for the attorney, was a problem for both detectives, but Peyton said that despite hearing the word “lawyer,” he did nothing wrong and would do the same thing again.

Good Cop, Bad Cop

At the same pretrial hearing, Peyton portrayed himself as the compassionate one in the interrogation room. While Johnson stormed out of the interrogation in anger after saying that the victim was not coming back to life because of Harper, an act that neither detective would describe as intimidating in court, Peyton returned to the room after conferring with Johnson to continue questioning Harper.

When he came back in, Peyton sat closer to Harper and asked him if Johnson had upset him. Harper said yes.

“Well, he’s pretty upset, too. If it’s OK, me and you will talk, and he won’t come in. OK? I mean, we’re getting along OK, right?” Peyton said.

Harper nodded.

As the interrogation continued, Peyton asked Harper if he ever finished school, and Harper replied no. Peyton said that he knew it had been a terrible two days for Harper.

“Actually, I had a good two days,” Harper said.

Peyton disagreed.

“Everything went wrong, man,” Peyton said.

Peyton then described in detail how everything went wrong for Harper in the robbery that was caught on video. Peyton told Harper what he said to the clerk and tried to justify his actions by suggesting that Harper only flashed the weapon to convince the clerk he was serious.

Peyton tried to get Harper to answer how the other robbery, the one that ended in murder, also went wrong. Harper said he did not know what Peyton was talking about and told Peyton that he did not have any proof.

Peyton left the room to chat with his frustrated partner. Upon re-entering the room, he rested his hands on Harper’s arm. As he began to tell Harper to ignore his gut and listen to what was in his heart, Peyton also began to rub Harper’s chest.

“It’s right there, Bobby,” Peyton said as he circled his hands over Harper’s bare chest.

“I didn’t shoot anybody,” Harper replied.

Just like Harper’s request for a lawyer, Peyton did not appear to hear that either. He persisted in questioning Harper and began to rub Harper’s neck with his left hand. Peyton’s hand lingered on Harper’s neck as he asked him again about what went wrong.

“Did he scare you, Bobby Joe?” Peyton said.

Harper asked him what he was talking about. Peyton said he should let his heart talk.

“It really doesn’t matter,” Harper said.

Peyton, then a 15-year veteran of law enforcement, gave Harper some advice:

“Bobby Joe, listen to me. Let me tell you something about the real world. If you're a crook and you try to lie your way out of everything, then district attorneys and juries will put you away for the rest of your life. But if you're a stand-up guy and you want to take care of your business, then juries respect that.”

The teenager across from him, who had turned 18 less than month before, had never finished high school, had negative experiences and a criminal history with the San Marcos Police Department as a juvenile, and must have had no sleep before being pulled out of the air conditioning vent he hid in before his arrest, appeared to distrust Peyton’s words of wisdom.

“It’s going to be the same-ass thing,” Harper said.

With the next set of questions from Peyton, Harper began to confess.

Proper Technique

Johnson’s anger or Peyton’s touching and insinuations of leniency were not considered illegal or coercive by the court. After all, the detectives relied on U.S. standards for interrogation that have been accepted since the 1950s.

The Reid technique, as this form of interrogation is called, serves as an alternative to the outdated “third degree,” which simply involves beating information out of suspects. The Reid technique is presumptive of guilt and allows the interrogators to minimize and maximize the crime and its consequences in a game of psychological warfare.

Peyton, for example, offered Harper a reason for wanting to flash a gun at a clerk while also telling him he might spend the rest of his life in prison. He implied leniency for being “a stand-up guy” in contrast to Johnson’s angry reaction before he left the room.

Wenk, the prosecutor, even implied Johnson’s reaction was natural after Harper’s case was appealed.

“One would expect that only the most sociopathic murder suspect would anticipate that his accusers would have no anger towards him whatsoever,” Wenk wrote in the state’s brief.

But one only needs to look at similar common-law countries for an example of police officers using updated, non-accusatory interrogation techniques aimed at gathering information. England and Canada have adopted such a model of interrogations, called PEACE, that seeks to limit the potential for false confessions by building a rapport with a suspect instead of relying on intimidation.

With the advent of Miranda warnings in the U.S., which vary wildly in their wording and complexity, U.S. courts have accepted the adversarial Reid technique as long as suspects are warned of their rights.

This gives U.S. law enforcement the freedom to deceive and manipulate suspects. The confessions that arise out of these interrogations are powerful tools in the hands of the prosecution.

Confession

Wenk said as much when the defense objected to the other robberies being admitted into evidence as extraneous offenses during the capital murder trial.

“In this case, we have no eyewitness who can identify him, we have a perpetrator who is concealing his identity through the use of a mask, we have no physical evidence, no fingerprints,” Wenk said. “And all we have is a confession which he is trying to tell this jury is legally inadmissible.”

Dr. Angela Jones, a criminal justice professor from Texas State University who specializes in wrongful convictions and procedural justice, described the influence of confessions on a jury.

“It's not a surprise that the jury would convict because confessions alone are often powerful enough for juries to convict without any other evidence, and in fact, often, even when the evidence conflicts with the confession, it often trumps the other evidence,” Dr. Jones said.

In the pretrial hearing about the confession, Detective Johnson, who said that he had taken “hundreds” of statements from defendants, said he solved “probably as many” cases through written statements or confessions without any pushback or surprise from Harper’s defense attorney.

Experts and academics have been pushing back, though. Saul Kassin, a psychology professor and a pioneer in the field of false confessions, has spent a large portion of his career pointing a critical eye at the Reid technique and its influence on confessions.

“Most people reasonably believe that they would never confess to a crime they did not commit, so they evaluate others accordingly, do not understand the influence of police interrogation practices, and have only a rudimentary understanding of the dispositional and situational factors that would lead someone innocent to confess,” Kassin wrote in a 2012 paper (PDF link) titled “Why Confessions Trump Innocence.”

After a confession, police will often close the investigation, consider it solved, and overlook exculpatory information, according to Kassin. His research has also shown that false confessions happen on a regular basis throughout the world, and people do not adequately discount confessions even when they are retracted or induced by coercion.

Guilty As Charged

In his closing statement of Harper’s aggravated robbery trial, which preceded the capital murder trial in August 2000, Wenk recalled the testimony of the two clerks, Weston and Lackey, who were only able to establish a general description of the perpetrator without identifying Harper. Wenk also invoked the statements of Harper’s family members, despite the contention about how those statements came into existence and their reliance on the subject’s voice and mannerisms for identifying Harper.

Eyewitnesses are notoriously unreliable sources of identifying information. Eyewitness misidentifications played a role in over 70 percent of wrongful convictions overturned through DNA testing, according to the Innocence Project.

Earwitnesses, who identify suspects by their voice, are even more unreliable. Research from The International Journal of Evidence & Proof has indicated that authorities must account for poorer auditory memory in comparison to visual memory.

Despite the dearth of evidence, a confession taken under stressful circumstances, and two of Harper’s three family members later testifying that they had never produced the statements that identified Harper in the surveillance video (the third witness, Harper’s mother, was ill during the trial), Stickels did not call any defense witnesses in Harper’s aggravated robbery trial or his capital murder trial. A fourth family member who was present at the police station when the family’s statements were produced and had declined to identify Harper was never called as a witness.

After Harper was convicted of the two aggravated robberies in a nonjury trial, Stickels suggested that the capital murder trial be delayed as a cost-cutting measure. It would have allowed him to prepare an appeal on the admissibility of the confession to a higher court, but it also forced him to concede that he felt Harper was on his way to another conviction in the capital murder trial.

“It would be much more economic and much more feasible to appeal this case to the Third Court of Appeals where the capital murder conviction is going to be appealed to, then rule on the admissibility of the confession before we take the time, trouble and energy to spend the money to try this capital murder case next week,” Stickels said at the end of the proceedings.

The court denied his request, but Stickels was correct about the outcome of the second trial.

The week after his aggravated robbery conviction, Harper was convicted of capital murder by a jury without any black jurors, as Stickels pointed out during jury selection. Since the state declined to opt for the death penalty in the capital murder trial, Harper was automatically sentenced to life in prison.

Two months later, Harper was sentenced to concurrent life sentences on the aggravated robbery charges.

Stickels asked the court to not make the life sentences back-to-back. Consecutive life sentences in Harper’s cases meant that overturning only one of his convictions on appeal would still land Harper in jail for the rest of his life because the second life sentence would then kick in.

Stickels tried to take the blame for the decision to ask for two trials.

“The decision for the two trials was made – is a tactic to get the records separated in the two trials and keep the facts and circumstances of the two trials separate. And I'm asking the Court not to hold it against Mr. Harper because I made the decision to try those two cases separately,” Stickels told the court.

The judge, Charles Ramsay, disregarded Stickels’ argument and ruled that Harper would serve back-to-back life sentences at the request of Wenk.

Stickels had to move on. He had raised several objections during both trials. Those objections served as a basis for his appeal to the Texas Third Court of Appeals.

Defeat After Defeat

In the state’s brief, Wenk wrote, “When a defendant makes an equivocal invocation of the right to counsel, the police are not required to stop the interrogation to ask clarifying questions about whether the suspect wishes the assistance of the counsel.”

The Third Court of Appeals ruled that Harper’s statement was an equivocal and ambiguous request for an attorney.

In the court’s ruling, detectives Peyton and Johnson were credited with understanding the second sentence in Harper’s statement as “a request for an explanation of the procedure to follow,” but were given the benefit of the doubt when they said “they did not hear and did not understand appellant’s statement to be a request that he be furnished a lawyer before continuing the interview.”

The court wrote that it examined the “totality of the circumstances” in coming to that decision, “which includes a review of the actions and the conduct of the defendant as well as taking into consideration the background and experience of the Defendant.” It pointed to Harper’s understanding of his legal rights through his experience in the juvenile criminal system, but not to his lack of a high school education, his lack of sleep or the possibility that saying, “I don’t want to talk about this shit unless I have me a lawyer,” could be misheard, misinterpreted or ignored.

The court found that Harper clearly expressed his desire to not terminate the interview when Johnson asked for clarification about wanting a lawyer, but it did not explain why Peyton was allowed to tell Harper that he could “get this off (his) chest” before Johnson asked about an attorney. The court left that part of the interaction out of its explanation of what happened in the interrogation room.

The appeals court also ruled that the confession was voluntary and cited the jury’s guilty verdict in the capital murder trial as support for that finding. It found that no promise of leniency was made and no coercion occurred. The court’s decision described Peyton rubbing Harper’s neck and chest as being “gently touched,” which the confession video contradicts, and offered no insight into how a young black male with a juvenile criminal history might be discomfited by the touch of a middle-aged white male detective accusing him of murder.

Stickels had also argued against the admission of the aggravated robbery charges in his appeal brief, but the court did not rule on that. The court wrote that they could not find Stickels’ objection to the admission of other evidence that included information about the aggravated robberies.

Since the appeals court cannot rule on new evidence and have to rely on the trial records in their decisions, Stickels’ oversight eliminated that avenue for Harper’s appeal.

The Third Court of Appeals affirmed the guilty verdict in its entirety. Stickels appealed to Texas’ highest court for criminal cases, the Texas Court of Criminal Appeals, but the case was not taken up.

Family Man

Domanique Felix, who grew up in San Marcos and met Harper after his conviction, called Harper her best friend. She used to be in a relationship with Harper’s youngest brother, and even though they are no longer together, she still considers herself a part of Harper’s family and referred to Harper as her “brother-in-law.”

Felix and Harper have communicated often, a few times per month, and Harper has remained a fixture in her life despite his imprisonment. She said that Harper’s family is trying to have Harper transferred to a prison facility near San Marcos that will allow Harper’s grandmother to visit him.

“His family means everything to him. Everybody in his family, whether it’s nieces, nephews, everybody. He cares about everybody,” Felix said. “He’s a very good listener. Like, when you need to talk to somebody, he’s a very good person to talk to.”

Harper was especially close to his mother, Renay Crayton, who passed away in 2013, but illness kept her from visiting him after he was moved to the Clements Unit from the Hays County Jail. The death of his mother deeply affected Harper, but he managed to persevere through the loss, according to Felix.

“After a while, he’s just like, ‘You know what? She wouldn’t want me to be like that. She didn’t raise me to be like that. She raised me to keep my head up no matter what,’” Felix said.

That resilience means Harper has continued to focus on getting out of prison.

“That would be his one thing he wants more than anything: is to be able to come home and be exonerated of his charges,” Felix said.

While he waits, Harper continues to play the role of doting uncle from prison.

“He makes sure, like, on the kids’ birthdays, every birthday, they get a card. Every Christmas they get a card. Every, every holiday, every whatever, if he feels, like, ‘I need to send my nieces and nephews something,’ that’s what he does.” Felix said. “They mean everything to him. I think his nieces and nephews are what keeps him going every day.”

The way Felix describes their family stands in stark contrast with the fact that three witness statements from family members, including Harper’s mother and father, implicated him in the string of robberies. Felix tried to make sense of how those witness statements were produced.

“They wouldn’t have identified him like that, and I don’t see unless they knew, unless somebody was telling them, like, you know, if you say it’s him, he’s going to get a lesser sentence,” Felix said. “I don’t think they would confess to something like that unless it was going to benefit him.”

The “he said, she said” element of the witness statements would be more problematic if some of the coercive elements of the Reid technique were used against Harper’s family members, according to Dr. Jones.

“That can often be used as a way to get people to sort of rat out family members or people close to them in a way that's ... it's in their benefit, or it's going to be some harm to you if you don't tell us the truth about this person,” Dr. Jones said. She researched psychology and the legal system before coming to Texas State.

Stickels did not pursue that avenue of questioning during the trial. He assumed that Harper’s family was being dishonest.

Billy Joe Crayton, Harper’s father, repeated what he said in court during an interview. He said neither he nor his wife prepared the statements incriminating their son. He said he did the exact opposite.

“That what’s I don’t understand. I know I wrote that’s not my son, and my wife wrote the same thing. And for them to get it twisted like that … that’s just not right,” Crayton said.

Even if Stickels was inclined to not believe him, Billy Joe Crayton was an unreliable witness for the prosecution because of the recantation of the witness statement.

Crayton focused his energy on helping his son during the trial, but as it continued, Crayton and his wife struggled to reach Stickels about their son’s case.

“We had a hard time getting ahold of him … it was always, ‘I’ll call you all back, Mr. Crayton. You all just let me work on it,’” Crayton said.

Photo of Billy Joe Crayton, Bobby Harper's father, in his home - Photo by John Hernandez
Photo of Billy Joe Crayton, Bobby Harper's father, in his home - Photo by John Hernandez

Crayton could not hold back the tears when talking about his son. He said that Harper is trying to stay strong despite the harsh reality of his situation.

“I think he’s just trying to hide it because if I hear it in his voice, I just … I get depressed, and I just go outside and look at the stars,” Crayton said.

A Learning Experience

Martha Whinery, a former counselor at Hays County Jail for 12 years, met Harper while he was imprisoned there before he was moved to the Clements Unit. She hasn’t seen Harper in over 15 years, but they have been writing to each other since they first met.

He is one of five prisoners, out of more than a thousand Whinery estimated she met in her role, that she has continued to communicate with through letters.

Whinery said Harper had a third-grade reading level when they first met. Harper appeared to agree. In an undated “writ of habeas corpus” that Harper prepared within the last four years (evidenced by the document’s revision date of 2014), he described his 18-year-old self as having “mental disabilities” that kept him in special education classes from middle school until he dropped out of high school.

“He had no concept of geography. He had not much of a concept of this whole town, of anything except his neighborhood, and I sensed a feeling he wanted to learn more but didn’t know how,” Whinery said. “By the time he left to go to Amarillo, I had taught him to read and to write.”

Whinery said she gave Harper a dictionary and an encyclopedia before he was sent to Clements. Harper read the dictionary like a book.

“I got the feeling, and I’ve gotten this continued in his letters, that’s he’s begun to discover things in himself he didn’t know he had,” Whinery said. “He just didn’t have a way to bloom.”

The way their relationship has developed has put Whinery in a position of trust with Harper. Unlike the majority of prisoners she met in her time as a counselor, Harper was one of the few to neither confess that he made a mistake or to immediately profess his innocence when it came to the crime that got them locked up.

The claim of innocence came out slowly, along with some other information that may have been crucial to his case. Harper told Whinery about an alibi that never came up in front of the jury.

“He had been with his girlfriend. He had been there all night,” Whinery said.

Whinery, Crayton and Felix all mentioned Harper’s alibi, his girlfriend at the time, Rebecca “Becky” Salinas. Whinery said they ordered a pizza that night, but Salinas, who was subpoenaed as a witness for the trial, did not testify.

The Best Defense is a Good Offense

The only mention of an alibi in the court transcripts was during an interaction between Stickels and Harper on the final day of Harper’s capital murder trial. Stickels asked almost everyone to leave the courtroom, except for the bailiff and court reporter, to have an on-the-record conversation with Harper about Stickels’ presumption of his conviction. Stickels said he believed Harper’s parents were lying because they offered conflicting alibis for Harper, which apparently meant that it was best to not mount a defense or call any witnesses for the capital murder trial.

Stickels said their best hope was an appeal, and he repeatedly asked Harper to agree with this approach during this interaction.

“I’ve told you since the very first day that, based on my experience, that I think you're going to be convicted of this capital murder and the two robberies, right?” Stickels asked Harper.

“Yeah,” Harper said.

According to Shannon FitzPatrick, a former assistant DA for Hays County and the current director of the Office of Attorney for Students at Texas State University, Stickels’ actions appeared to be what is referred to in legal circles as “CYA,” or “cover your ass,” which is a way of documenting the legal decisions of a client to prevent a subsequent accusation of ineffective counsel.

There were other possible courses of action if Stickels’ goal was to mount an appeal. FitzPatrick was incredulous about Stickels’ decision to not call any witnesses in a capital murder trial.

“When you have something of that significance, what you do is you bring in experts. I saw no experts on this case,” FitzPatrick said. “You bring in a forensic pathologist who could talk about something. There was nothing.”

Like his father, Harper alleged that Stickels was not communicative with him during the trial and did a poor job of investigating Harper’s alibi and background. Even if Stickels did enough due diligence, it does not explain why he was presumptive of Harper’s conviction or his decision to request a separate nonjury trial for the robbery charges.

FitzPatrick described that tactic as a massive risk.

Taking an Interest

FitzPatrick has occasionally received letters from inmates asking for assistance during her tenure at Texas State. She normally writes back with information about who to contact for help and leaves the matter alone, but the letter she got from Harper was different.

Harper was from San Marcos and he was adamant about his innocence.

At the time, FitzPatrick was reading Michael Morton’s book, “Getting Life,” about Morton’s wrongful conviction in the murder of his wife in Williamson County. Morton wrote that a probable indicator of innocence was never giving up on your case.

FitzPatrick wrote Harper back to tell him that she could not represent him and offered some other resources and instructions. But she also recognized Harper’s insistence on his innocence and sent her son, Lewis Bowden, a Texas State student and prison reform activist, to collect some court records out of curiosity.

FitzPatrick saw the lack of evidence, just like Wenk pointed out 18 years ago, and the questionable confession. She was in disbelief.

“There was just a dearth of information in his file. This was a murder trial and an armed robbery, and yet, they didn’t have his fingerprints, they didn’t have any DNA, they didn’t have as much as a photograph of him,” FitzPatrick said. “A murder case without any kind of evidence.”

She also noticed that they had arrested Harper fewer than 36 hours after the crime. Dr. Howard Williams, a former San Marcos Police Chief – not during Harper’s case – and current Texas State University professor, said that it was normal for a homicide investigation to be wrapped up in approximately 48 hours in San Marcos during his tenure from 2003 to 2014.

Dr. Jones, Williams’ colleague in the criminal justice department, said a 48-hour timeline for an arrest in a homicide investigation is atypical nationally. She was also surprised at how quickly the police settled on Harper as their prime suspect.

There is conflicting information on how that happened. On Oct. 11, 1998, the Austin American-Statesman wrote that CrimeStoppers tips helped identify Harper as a suspect, but the Statesman issued a correction two days later. According to the correction, which quoted Sgt. Warren Zerr, tipsters saw the video on local television newscasts and contacted the San Marcos Police Department.

None of those tips were mentioned during the trial. The detectives that testified said they knew it was Harper after watching the surveillance video and decided to bring his family in, which started the process that landed Harper in jail for the rest of his life.

FitzPatrick has continued to try to help Harper in her spare time.

A Terrible Record

In the end, the preponderance of questions and head-scratching moments in Harper’s case are a symptom of the problematic way criminal justice is administered in the U.S. and in Texas – a way that disproportionately affects black males.

In the introduction of his 2010 book, “Texas Tough,” Robert Perkinson, an American studies professor from the University of Hawaii at Manoa, summed up the situation in Texas:

“The state’s per capita imprisonment rate (691 per 100,000 residents) is only second to Louisiana’s and three times higher than the Islamic Republic of Iran’s. Although Texas ranks fiftieth amongst states in the amount of money it spends on indigent criminal defense, it ranks first in prison growth, first in for-profit imprisonment, first in supermax lockdown, first in total number of adults under criminal justice supervision, and a resounding first in executions.”

Texas has also led the country in exonerations from 2013 to 2017, according to reports from the National Registry of Exonerations, and was third in exonerations from 1989 to 2012.

According to Perkinson, any sense of improvement in the civil rights of men like Harper are illusory. In his book, he estimated that blacks in the U.S. are “incarcerated at seven times the rate of whites, nearly double the disparity measured before segregation.”

Doubt

Harper was barely an adult when he was caught up in this wave. Wes Mau, the current DA of Hays County and an assistant DA at the time of the capital murder trial, offered a path to find him guilty of the crime of capital murder in his closing statement:

“What I'm trying to say is that we know that Bobby Joe Harper is a black male who commits robberies, who committed that robbery by himself using a gun and a mask,” Mau said. “We also know that the person, whoever it was that committed those other robberies, used that exact same methodology, that same exact MO, that exact same pattern, and that no other robber, in all the robberies that we've had since 1995 through the year 2000, has committed a robbery in exactly that way.”

But to find Harper guilty beyond a reasonable doubt meant believing that parents would identify their own son, through a mask, by his voice and mannerisms, without any argument against or benefit to that action. It meant believing that a high school dropout, barely a month after turning 18 and ignorant of life beyond San Marcos, understood the nuances of a Miranda warning after being pulled out of an air conditioning vent by police in the middle of the night.

Voting guilty meant believing that two detectives happened to not hear or understand a request for a lawyer, possibly due to the poor acoustics, but understood the sentence before and after that request. It meant believing the statement, “I don't even want to talk unless I have me a lawyer and go through this shit,” was an ambiguous request for legal representation.

Believing Harper was guilty meant excusing the possibly coercive behavior of the middle-aged, white detectives in the interrogation room. It meant accepting the lack of physical evidence connecting Harper to the murder at Pat’s Conoco while also disregarding the prejudice that might arise from Harper’s connection to the other robberies that did not end in murder.

It also meant believing that the circumstances of the crime were so distinct that no other potential perpetrator of a robbery would have thought to rob a store late at night while wearing a mask and using a gun. It meant believing that the perpetrator would have continued using the same exact methods even after one of his robberies ended in murder. It meant accepting Mau’s claim of the unique nature of the robberies, even though another black male matching Harper’s physical description would rob a gas station at gunpoint and murder a cafeteria manager in San Marcos soon after Harper’s trial ended.

That man, Samuel Oly, is serving a life sentence. He was also represented by Stickels.

Delivering a guilty verdict also meant believing that a small college town in Texas would offer a young black male with a juvenile criminal record and a court-appointed attorney the due process that he deserved.

No wonder people that have remained in touch with Harper have their doubts about his guilt.

They also have hope.

“He said, ‘Don’t give up on me.’ That’s the last thing I’ll do, partner,” Billy Joe Crayton replied to his son from over 500 miles away.

 

About This Story

The efforts to look into Harper’s possible wrongful conviction are nascent.

Acquiring police records, talking to Harper’s alibi, conversing with Stickels about his approach to the case, contacting Shirley Crayton about her witness statement, and approaching the Hays County DA’s office and the police officers involved are some of the remaining tasks left to find out what happened 20 years ago.

Anthony Graves, a Texas death row exoneree who was incarcerated for 18 years, offered perspective on his arduous exoneration process. It took ten years for his team to get him out of prison, and the state of Texas fought him almost every step of the way.

The prosecutor in Graves’ case, Charles Sebesta, even created a website to tell his side of the story. Sebesta was disbarred due to misconduct, appealed his disbarment and lost the appeal.

Exonerating Harper is a similar uphill battle, according to Graves.

Graves questioned the commitment of Texas State reporters during his interview. He made it clear that the media is a double-edged sword in these situations: necessary for the exoneration, but complicit in the wrongful conviction.

“Media’s hand is just as dirty as the DA’s hands,” Graves said. “Media has a big role in wrongful convictions in our state because they want to all jump on the state’s side, and they want to write the article up to make sure that this person don’t get out …. They can help you come home, or they can help you get killed, depending on how they write their story.”

Anita Miller, the editor for the San Marcos Daily Record, wrote a story about the conviction of Harper when it happened. After she was contacted about scheduling an interview to talk about the media’s approach to the Harper’s case, she replied with three words, “Let me see,” and never followed up again.

Reaching out to her again will be essential. After all, San Marcos averaged just over one murder or negligent manslaughter between 1998 and 2016, according to FBI crime reporting data, with a high of five offenses in 2015 during that time span. Considering the rarity of these crimes in San Marcos, the minimal coverage that Harper’s case received, as judged by the limited number of archived news reports in research databases, gets to the heart of Graves’ concern.

This story, a result of a four-month-long investigation for Texas State University’s senior journalism capstone course, involved an open records request to the Third Court of Appeals. Those records are available on Google Drive for review, which was generously paid for by the School of Journalism.

The story will be updated with important developments as the work continues.