By Jolie Mccullough

The Texas Tribune

texastribune.org

It’s been more than two decades since an infamous hate crime in East Texas, where three white men were convicted of chaining a black man to the back of a pickup truck, dragging him for miles and then dumping the remains of his body in front of a church.

On Wednesday evening, John William King, 44, is set to become the second man executed in the 1998 murder of James Byrd Jr. Lawrence Brewer was put to death in 2011 for the crime, and Shawn Berry is serving a life sentence.

King had previously been involved in a white supremacist prison gang, and he is notoriously covered in racist tattoos, including Ku Klux Klan symbols, a swastika and a visual depiction of a lynching, according to court documents. But King maintains that he’s innocent in Byrd’s murder — claiming that Berry dropped him and Brewer off at their shared apartment before Byrd was beaten and dragged to death.

In a last-minute appeal, King’s attorney argued that a recent U.S. Supreme Court ruling entitles his client to a new trial because his original lawyers didn’t assert his claim of innocence to the jury despite King’s insistence. The Texas Court of Criminal Appeals narrowly rejected this appeal in a 5-4 ruling Monday, and a petition is now in front of the nation’s high court.

Byrd’s sister, who watched Brewer’s execution and plans to attend King’s on Wednesday, said she didn’t understand why King’s case has been tied up with numerous appeals. He was sentenced to death in February 1999.

“He wants to find a way not to die, but he didn’t give James that chance,” said Louvon Harris. “He’s still getting off easy because your body’s not going to be flying behind a pickup truck being pulled apart.”

Byrd’s brutal murder drew a spotlight on the small town of Jasper and violent racism in the modern world. Evidence at trial showed police found most of the 49-year-old’s body on June 7, 1998, with three miles of blood, drag marks, and other body parts — including his head — on the road behind it. At the beginning of the gruesome trail, police found evidence of a fight, Byrd’s hat and cigarette butts later tied to King, Berry and Brewer, according to court documents. The three men were arrested shortly afterward.

Though King didn’t give an official statement to police or testify at his trial, he wrote a letter to The Dallas Morning News while awaiting trial proclaiming his innocence, saying Berry knew Byrd from jail and stopped the truck to pick him up after seeing Byrd walking down the road. King told The News that Berry then dropped him and Brewer off before leaving with Byrd alone.

But in a jail note written to Brewer, he said he didn’t think his clothes police took from their apartment had blood on them, but his sandals may have had a “dark brown substance” on them.

“Seriously, though, Bro, regardless of the outcome of this, we have made history and shall die proudly remembered if need be…. Much Aryan love, respect, and honor, my brother in arms,” King wrote, according to a court filing.

Still, King maintained before and through his trial that he wanted to argue for his innocence and unsuccessfully complained to the court when he said his attorneys refused, his current lawyer, Richard Ellis, said in his latest appeals. King is claiming that because his attorneys instead conceded his guilt in the murder, a 2018 U.S. Supreme Court ruling should allow him to get a new trial.

In Robert McCoy’s case out of Louisiana, the high court held last year that a defendant has the right to choose the objective of his defense — so trial lawyers can’t concede guilt if the defendant wants to assert innocence. King said his lawyers didn’t assert his innocence, instead largely focusing on whether the murder could be considered death penalty eligible.

The Jasper County District Attorney’s Office knocked the appeal, saying in a brief that King pleaded not guilty and his lawyers, unlike McCoy’s, didn’t concede guilt but were “substantially limited” based on the given physical evidence, his letter to The News and his jail note to Brewer.

“Counsel could not create evidence where none was available, and counsel’s failure to manufacture exculpatory evidence where none existed is not equivalent to a ‘concession’ of guilt,” wrote Sue Korioth for the prosecutor’s office.

The Court of Criminal Appeals tossed King’s appeal Monday without reviewing its claims based on its late timing, but two judges wrote short concurring opinions and four signed on to a dissent. Judge Kevin Yeary agreed with the court’s rejection, arguing there was no indication that McCoy’s ruling would apply retroactively to King’s case. And Judge David Newell said in his opinion that King’s case is different from McCoy’s, and noted that King had already made a similar argument against his lawyers that was recently rejected by the Supreme Court.

Judge Michael Keasler, however, joined by Judges Barbara Hervey, Bert Richardson and Scott Walker, said he would have stopped the execution, noting that his court has recently been admonished by the high court for unsuccessfully implementing another one of its rulings in the death penalty case of Bobby Moore.

“In light of this Court’s recent earnest, but ultimately unsuccessful, attempts to implement new Supreme Court precedent in death-penalty cases, and especially in light of the horrible stain this Court’s reputation would suffer if King’s claims of innocence are one day vindicated… I think we ought to take our time and decide this issue unhurriedly,” Keasler wrote.

King’s lawyer, Ellis, also raised the McCoy case in an appeal shortly before another Texas execution this year, but the courts decided against Billie Coble and he was executed in February. Ellis said Monday that the questions raised from the narrow Texas ruling in King’s case could indicate the Supreme Court will step in to clarify its earlier decision.

If the Supreme Court does not stop King’s execution, Harris said his death will bring her some closure, but she will still have to be involved in Berry’s case as he becomes eligible for parole in 2038. And though some hate crime laws were passed in Byrd’s name after his murder, she still dedicates herself to fight against racism in the country in her brother’s name.

“As long as there’s still hate in America, we still have a job to do,” said Harris, who serves as the president of The Byrd Foundation for Racial Healing.