Bad Boy From Rosebud (16 page)

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Authors: Gary M. Lavergne

Tags: #Biography & Autobiography, #General, #Law, #True Crime, #Murder, #test

BOOK: Bad Boy From Rosebud
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33
State of Texas v Kenneth Allen McDuff,
Order Dismissing Cases in Causes #20256 and 20259, in the 18th Judicial District of Johnson County, March 8, 1978.
34
Furman v Georgia,
408 U.S. 238, June 29, 1972, from the Villanova Center for Information and Policy,
www.law.vill.edu
, pgs. 3536.
 
Page 54
35
Furman v Georgia,
408 U.S. 238, June 29, 1972, from the Villanova Center for Information and Policy,
www.law.vill.edu
, pgs. 1, 23, 38, 93.
36 Ibid., pg. 41;
Waco Tribune-Herald,
April 27, 1992.
 
Page 55
4
Freed to Kill Again
"You know, when you're on parole and you been on death row, it's hard to find a date."
Kenneth Allen McDuff
I
Furman v Georgia
was not the only significant development affecting the prison life of Kenneth McDuff in 1972. That year, a disgruntled Texas prison inmate named David Ruiz, who was serving a twenty-five-year sentence for armed robbery, initiated a handwritten lawsuit alleging a variety of violations of his civil rights in the prison system. His complaint alleged overcrowding, poor medical care, and the use of Building Tenders as guards of other inmates. The Building Tenders kept control of their area, and in turn, received preferred treatment by guards and prison officials. Ruiz alleged that Building Tenders beat other prisoners to keep them in line.
1
The Ruiz case went before United States District Judge William Wayne Justice of Tyler. Thus began the longest and most expensive trial in the history of Texas.
Years later, during the early to mid 1980s, Judge Justice, in effect, seized the prison system from the people of Texas. His ruling concluded that the system violated inmate rights through crowding, poor medical care, using inmates as guards, brutality by professional guards, and unconstitutional grievance and discipline procedures. He ordered a complete overhaul of the prison system and set up federal monitors and "masters" to assure compliance. The Ruiz controversy lasted over twenty years; Judge Justice's reign over Texas prisons lasted over nine.
2
Before the prison construction boom that resulted from the Ruiz lawsuit, the immediate problem of overcrowding had to be addressed. The
 
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state scrambled to comply with Justice's order, which did not even allow for full occupancy of a facility. In 1987, Justice ruled that occupancy above ninety-five percent capacity, or about 48,400 inmates, was a violation of prisoners' rights. As a result, county jails became filled with backlogged state prisoners awaiting transfer to prisons that had no space. In some areas, county jails became so crowded that "tent cities" of prisoners were seriously discussed. In frustration, Bob Ozer, an assistant attorney general, lamented, "Federal court orders control. [If] we go over the cap [we] risk $800,000-a-day in fines."
3
The enormous cost of satisfying Judge Justice's order caused even the Texas State Legislature to halt its traditional tough-guy attitudes toward crime and criminals. During the 1991 legislative session, fewer than sixty bills were filed creating new crimes and felonies, and of those, less than a dozen passed. Chairman of the House Corrections Committee Allen Hightower suggested that, "Maybe we finally realize that if we only have 50,000 prison beds, that we need to keep only the worst 50,000 criminals there and not keep trying to lock everybody up."
4
During a time of reduced spending and a war against big government, Texas prisons overflowed and resistance to raising taxes or passing bonds continued. As the backlog of felons clogged county jails and the populace reacted in horror to the notion of criminal "tent cities" surrounded by chain-linked fences near their neighborhoods, public officials had only one tool left to ease overcrowdingparole.
Parole seemed like the answer. Prisoners who had served some time could be released quietly into a society mostly unaware of the parolee's past. Parolees had no identifying scarlet letters or tattoos, and parole hearings seldom, if ever, generated public interest. Very few Texans knew anyone on the parole board, and thus, there was little oversight or public accountability. Without much fuss and with near anonymity, a few board members could release prisoners and relieve the governor and legislators of the burden of raising taxes or increasing bond indebtedness.
The Texas Department of Corrections instructed the parole board to release 150 prisoners a day750 prisoners a week3,000 per month36,000 per yearor nearly seventy-five percent of the population Judge Justice allowed to be housed in Texas prisons in 1987.
5
The desperation to expedite the exodus from incarceration birthed a novel concept: Parole in Abstentia, or PIA. PIA meant that an inmate, while housed in a county
 
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jail, could get a parole from state prison, without ever having spent a day in the prison.
6
And so, an unelected federal judge seized a prison system and placed the rights of prisoners above the safety of the public. The state responded with an utter lack of political courage. In effect, the people of Texas slept, to awaken later to find that felons who might have been housed in the dreaded tent cities surrounded by chain-linked fences were now in their neighborhoodswithout tents or fences.
II
By 1976, less than ten years after his conviction for the murder of Marcus Dunnam, Kenneth McDuff had accumulated enough good time credits to be eligible for parole. At the time, however, a request for parole for a capital murderer was not reviewed by all of the eighteen-member board. Three members reviewed each case. The majority ruled.
7
The Texas Board of Pardons and Paroles was an independent agency charged by law with the authority to make decisions regarding granting and revoking paroles. Its eighteen members were appointed by the Governor to staggered, six-year terms. A Governor could remove any member at any time for any reason unless another Governor appointed that member. Kenneth's first three parole reviews, on April 4, 1976, and on February 18 and November 16, 1977, were conducted as the Ruiz case slowly progressed through the federal court. During those deliberations, there was no urgency to release prisoners. On January 11, 1979, Edward Johnson cast the first favorable vote for Kenneth's parole. The other two members, however, voted no. The second board member to vote for approval was Helen Copitka on January 2, 1980. Again, this was a lone yes vote, and Kenneth was forced to stay in prisonfor the time being.
8
By March 1981, McDuff had been denied parole five times. On two of those occasions, he had received single favorable votes from two different individuals. The sense of invulnerability he and Lonnie shared as boys must have been reinforced by this bizarre turn of events. On March 23, 1981, his arrogance returned and it would get him back into trouble.
Glenn Heckmann had been hired as a parole commissioner by the parole board. His job was to conduct face-to-face interviews of inmates
 
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and then cast a vote on their parole request. Afterwards, two members of the board voted on the recommendation. At the time, McDuff was an inmate at the Retrieve Unit near Angleton. Heckmann and McDuff met in the Chaplain's office. As Heckmann went through routine questions about McDuff's prison career and about the Broomstick Murders, McDuff interrupted with, "I don't know how to put this, but if you get me out on parole, I'll guarantee you you'll find $10,000 in the glove compartment of your car." Stunned, Heckmann made no response. He proceeded with the interview, but McDuff' could not help himself; he tried again. "What I said earlier I meant. You'll have $10,000 in the glove compartment of your car before I leave. You can get me out. You're the vote I need."
9
A few minutes later Heckmann left the room and the next morning went directly to local prosecutors to report the bribery attempt. Over a year and a half later, on August 6, 1982, McDuff was convicted of bribery, another felony, and sentenced to two years. He returned to the Retrieve Unit on September 3, 1982, unfazed by the incident. The sentence amounted to nothing, as it ran concurrently with his life sentence. At best, this latest felony conviction delayed his parole, even though it took less than two years for him to begin getting more favorable votes. In 1982 and 1983 his parole attempts were denied unanimously. On March 19, 1984, board member Sue Cunningham cast a favorable vote. Kenneth was back on the road to parole.
10
In 1984 and 1985, Sue Cunningham cast two more favorable votes, but in both requests she was outvoted. In 1986, Kenneth appeared to have lost ground when the three-member panel unanimously denied his request.
11
That year was a particularly bad one for Kenneth McDuff. It started with the only incident in which he would ever show emotion.
III
As J. A. McDuff aged, Lonnie took on more responsibilities in his father's concrete finishing business. Some of Lonnie's employees were decent, hard-working men. Others were like a young man named Alva Hank Worley, from nearby Belton, Texas. Hank really liked beer. Years later, during an interview with psychologist Dr. Matt Ferrara, Hank talked about routinely drinking a six-pack of beer at a single sitting, and a total of

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