Confronted with DNA, Alabama offers theory that ‘defies logic’ to keep man on death row
Christopher Barbour’s entire adult life has hinged on words he uttered when he was 22.
More than 30 years ago, Barbour confessed to police that he killed a 40-year-old single mother in Montgomery and helped another man rape her. Almost immediately he tried to take back the confession — he said later that he didn’t do it nor even know the woman — but it was too late.
Barbour remains on Alabama’s death row.
But now, new DNA testing points to someone else — a man who’s already in prison for an unrelated murder. Yet there is no cinematic rush to release Barbour. Instead, there is a push by prosecutors to explain away the DNA.
“It’s a refusal to admit error, not to accept the science,” said Robert Dunham, the director of the Death Penalty Policy Project.
Back in 1992, Barbour was homeless. Police found him living behind the mall across town, and Barbour said he was pressured to falsely confess to the grisly crime that had happened a few weeks prior.
State prosecutors now acknowledge that the only DNA at the scene belongs to someone else, but they argue that doesn’t clear Barbour.
Now 55 years old, Barbour isn’t the only person who remains in Alabama’s prison system despite evidence suggesting he didn’t do the crime. Alabama’s legal system has a complicated relationship with science, one that often plays out however is most advantageous for the state’s case.
The state, often through the Alabama Attorney General’s Office in its criminal appellate work, has a history of defending junk science, of relying on old, now-debunked theories to keep people locked in prison for a crime there is little evidence they committed.
They often choose those old theories over new, updated science.
“One of the things you hear about the death penalty, which is true, is that the facts don’t matter once somebody has been sentenced to death,” said Dunham.
In the case of Barbour, U.S. District Judge Emily Marks in an order last year wrote that the state’s version of the crime is hard to accept “because the theory defies logic, common sense, and science.”
She said the state should consider the DNA. It’s something prosecutors would do if seeking to convict someone now, she wrote. But here, Alabama Attorney General Steve Marshall’s office only offers an improbable tale to explain away the only scientific evidence.
“It is puzzling that in this case, the State downplays the significance of the new DNA evidence when the State otherwise relies on similar DNA evidence to secure convictions and clear cold cases,” the judge wrote.
‘DNA doesn’t lie’
Barbour was just 22 when he was arrested for the brutal rape, beating and stabbing death of Thelma Roberts, a single mother of two. The crime rocked Montgomery’s Chisholm neighborhood, as investigators looked into the slain woman’s family and friends but came up empty.
Christopher Barbour has spent more than thirty years on Alabama Death Row for the murder and rape of Thelma Roberts, a Montgomery woman, in 1992. (Provided photo| AL.com) Contributed photo
After weeks without solid leads, police zeroed in on several homeless men living in the woods behind a mall and eventually arrested several of them. Barbour had no connection to the victim or her family, but he confessed to the slaying — a confession he quickly recanted.
But his words stuck. He was convicted of capital murder and sent to Alabama Death Row in 1994.
Three decades later, after Barbour grew into a middle-aged man, DNA testing revealed no traces of him on the battered victim. It turned out that the only person who left any DNA on Roberts was a young man who lived across the street at the time of the murder.
That man, Jerry Tyrone Jackson, is currently serving a life sentence for a separate murder committed in another part of the state several years after Roberts’ slaying.
And yet, Alabama prosecutors contend that doesn’t matter much.
“The new DNA evidence identifying Jackson’s DNA as the sole male DNA in Mrs. Roberts’ rape kit is powerful evidence that Barbour’s confession is false,” the judge wrote, “and that Mrs. Roberts’ murder did not occur as the prosecution presented it at trial.”
When representatives from the Alabama Attorney General’s Office and Barbour’s team visited him in prison to ask about the Roberts case, Jackson wasn’t keen to talk.
When asked in a deposition if he knew Thelma Roberts or the Roberts family, Jackson said: “On the advice of counsel, I plead the Fifth.”
He repeated the answer about 50 times throughout his deposition to any questions that revolved around the Roberts family or the murder.
“I am through. I plead the Fifth to whatever else you got to say,” Jackson told Barbour’s lawyers at one point. “That is what I am going to say. So, we can go on and cut through the chase. Whatever your questions is, I plead the Fifth to the answers you are going to get. So, that’s — Get it over with.”
Barbour’s confession never made much sense to some. It was a winding tale of a homeless man and his homeless friends going across town, being invited in for beer by a working, sober single mother before one of the men raped her, with Barbour and another man (who was identified but never charged in the case) holding Roberts down. The tale ended with Barbour killing her. It was a tale where the men left behind no DNA or physical evidence before heading back to a makeshift campsite in the woods.
Barbour also didn’t mention several details of the case in his confession, including that a plastic bag was left over Roberts’ head.
While Barbour’s lawyers call the new DNA match proof of his innocence, Alabama Attorney General Steve Marshall’s office said Barbour is where he belongs.
The state’s latest theory — though they write that it’s not their responsibility to offer one — is laid out in court records. The state said a “likely theory” is that the single mother also had sex with Jackson, who was a neighbor and a teenage friend of her son, that same day. That was just before being raped and killed by a group of homeless men hours later.
Thelma Roberts was murdered in her home in 1992. Roberts lived at this home on Manley Drive, in Montgomery’s Chisholm neighborhood. (Tamika Moore | AL.com) Tamika Moore | [email protected]
The judge said “any reasonable jury” would doubt that a 40-year-old churchgoing woman would have consensual sex with a boy younger than her own son.
“Applying Occam’s Razor, the physical evidence, DNA test results, expert testimony, and common sense would cause reasonable jurors to doubt the veracity of the State’s theory,” the judge wrote.
Judge Marks said the DNA is “objective, reliable, and undisputed.”
“And unlike people, ‘DNA doesn’t lie.’”
Alabama vs. Science
Being allowed to retest DNA evidence is a challenge in the legal world, especially in cases from decades ago when people had no idea how forensic testing would advance.
“It makes it easier to convict people” without DNA, said Robert Goodwin, a lawyer and longtime professor emeritus at Cumberland School of Law.
“I think they just think they’re sure somebody’s guilty. The police know the person they arrest usually and they know if they didn’t do this, they did something else, or they would have done it. They get that attitude, ‘This is a bad guy…’ And I think they convince themselves.”
Alabama has a complicated relationship with science. It’s criminal courtrooms are no exception. Illustration by Mila Oliveira | [email protected]
While Alabama does have a state law allowing DNA to be retested in older cases, it’s incredibly narrow and only applies to capital murder cases. Other states, like Texas, have broader laws surrounding junk science and allow more cases to be re-examined.
Barbour’s is not the only case in Alabama where law enforcement officials are hoping that old theories and science that’s long since been updated or even entirely abandoned will keep someone in prison.
In Barbour’s case, to explain the only DNA left at the scene, the state said another man must have had sex with the victim shortly before Barbour happened to drop in and kill her.
Yet, in another Alabama Death Row inmate’s case, the state’s top prosecutors argued that common sense suggests just the opposite.
Gregory Hunt was convicted of a brutal 1988 murder and sexual assault of a Jasper woman. While he didn’t dispute that he killed the woman, Hunt in May argued that he didn’t sexually assault her.
The Alabama Attorney General’s Office fought back. They said that semen on the body, while never tested for DNA decades ago, is obviously from the killer. There was “simply no evidence” that another man would have entered the victim’s home, sexually assaulted her, and left before Hunt happened to murder her.
Two cases. Two contradictory theories. In one, the DNA must have been from someone else in an earlier encounter, since it didn’t match the suspect. In the other case, the evidence was obviously from the suspect — because who else would have left it there?
“One of the things you hear about the death penalty, which is true, is that the facts don’t matter once somebody has been sentenced to death.”
Robert Dunham of the Death Penalty Policy Project
UAB forensics professor Elizabeth Gardner said: “There’s two errors you can make in forensic science. “You can make a mistake that lets someone who’s guilty free, and you can make a mistake that lets someone innocent go to jail.”
“Sending an innocent person to jail is the more egregious error.”
Who killed Thelma Roberts?
In the spring of 1992, Roberts was trying to make it work as a single mother with two teenagers. Her husband, whom she was separated from, was still involved in her life, and everyone who testified in court or talked to police said she wasn’t dating at the time of the murder. The 40-year-old didn’t drink or smoke and was a regular at church.
Roberts’ teens — a boy and a girl — spent the night of March 20, 1992, with a friend down the street. When the kids walked home the next morning, Roberts’ son found her body on the floor with a butcher knife protruding from her chest and a plastic bag over her head. Someone had set several small fires, too.
Authorities initially focused on Roberts’ estranged husband and even her son, before changing course and looking into a group of neighborhood teenagers, interviewing kids as young as the eighth grade. Eventually, after an endless string of tales that pointed the finger at other teens and left police scrambling to distinguish fact from fiction, they focused on Barbour and another homeless man named Christopher Hester.
Barbour was 22 and living behind Montgomery’s Eastdale Mall. He was struggling with the death of his mother and, despite a brief stay with his grandparents, Barbour wound up homeless. He and his friends caught the attention of police as people of interest in a string of grocery store fires — police thought they may have been involved in a group that set small fires in supermarket aisles as a distraction to steal food.
Roberts’ killer had also attempted to set her body on fire.
Investigators from the Montgomery police and fire departments talked to Barbour several times. When they brought him down to the local fire station weeks after the murder for a polygraph, his lawyers said Barbour thought the test was about the small grocery store fires — not about the charred scene on Manley Drive. In court records, Barbour said he only agreed to the test after police threatened him. (Roberts’ ex-husband also said the police beat him until they ruled him out, and other people testified to similar tactics.)
After the polygraph — the results are still disputed — Barbour confessed to the murder.
That confession, and what led up to it, wasn’t recorded. But detectives showed Barbour the fire station, let him sit on a fire truck and fed him dinner. And after the words were out, detectives sat Barbour down for a formal, taped confession.
A police report, scanned into court records, shows Det. Danny Carmichael of Montgomery police’s initial thoughts after his first interview with Christopher Barbour. (Court records |AL.com) Court records | AL.com
According to the judge’s order from 2024, Barbour gave three confessions that night in May 1992. None were in the presence of an attorney. Of the three, one was audiotaped and one was videotaped. One was not recorded at all.
“According to Barbour, he was shown crime scene photos and told details about the crime scene before he confessed,” wrote Judge Marks in her order. “Barbour also claims that he ‘rehearsed’ his confession four to five times before (a detective) recorded it.”
Following the taped confession, another detective took Barbour to the police station, where he and Barbour “talked for about three hours in an unrecorded conversation,” the judge wrote, before Barbour made a videotaped confession.
And then he was arrested and charged with murder.
Science in the courtroom
Two forensics professors in the criminal justice department at the University of Alabama at Birmingham said what society understands about the field has changed fundamentally over the past 40 years.
Elizabeth Gardner and Jason Linville said science has evolved, but so too has the understanding of how to explain science and its limitations.
Linville said modern forms of DNA testing allow courts to take a fresh look at possible wrongful convictions. “It allowed these specific cases to be reexamined,” he said, and caused “everybody involved to look at these cases and say, ‘Why did this innocent person go to jail?’”
One argument Barbour’s lawyers have presented is that even with the rudimentary DNA testing available in the early 1990s, a trained scientist could have excluded both Barbour and his so-called accomplice Hester at trial. If jurors knew that, maybe Barbour wouldn’t have spent the last three decades in a cell.
District Judge Emily Marks is overseeing Barbour’s lawsuit in the U.S. District Courthouse for the Middle District in Montgomery shown here on Oct. 1, 2024. (Ivana Hrynkiw | AL.com) Ivana Hrynkiw | [email protected]
Linville said forensic science has always had limitations, but professionals usually thought if explained properly in court, then the methods were reliable. But what happened, he said, was that a lot of trials included “improperly presented” forensics rather than inherently faulty science.
Sometimes that was caused by a forensic scientist being too close to an investigator and wanting to help the state’s case. Sometimes, defense lawyers didn’t know the right questions to ask to poke holes. Other times, prosecutors didn’t get a proper explanation, either.
“It’s really that question of explaining the limitations of the evidence may have been presented improperly, or not thoroughly explained in court, or it may have been unknown.”
Gardner cautioned that not believing or understanding science typically isn’t the only factor in wrongful convictions.
“Part of that is that we can get better answers now,” she said. “Part of it also, I think, in the wrongful convictions, it was very seldom just one factor. Very seldom was it just the forensic science.”
Marks, the federal judge in Barbour’s case, wrote that “the new DNA evidence would likely cause reasonable jurors to believe that Jackson was present at the crime scene and involved in the rape, murder, and arson.”
Last fall, Barbour’s lawsuit was the first of its kind in Alabama to be allowed to proceed through the federal courts.
Less than a year after the judge issued her blistering order, the state attorney general’s office met for settlement talks with Barbour’s team, who is fighting to get him out of prison, court records show. As of May 21, according to a filing, “no settlement was reached.”
Protecting convictions
It’s not that Alabama prosecutors don’t understand science, said one national researcher. It’s that they find it more important not to admit error than to be truthful.
“They are more interested in not admitting to their misconduct or their incompetence than they are in getting it right,” said Dunham, the director of the Death Penalty Policy Project.
“There is such an investment in protecting the ‘integrity’ of a conviction that has no integrity.”
Since 1972, forensic evidence has led to the exoneration of 200 people who were awaiting executions across the country, said Dunham, who conducts independent research and analysis of death penalty issues. In 62 of those cases, or nearly a third, the person was convicted due to false or misleading forensic evidence.
Eleven of those exonerations included convictions obtained using false confessions.
“People do not end up wrongfully convicted and sentenced to death by accident,” said Dunham. “In the majority of the cases, there is official misconduct and perjury. And in the majority of cases, there’s not just one thing that went wrong.”
DNA evidence contributed to exonerations in 22 of those 62 death row cases.
The way the legal system is set up, even if new DNA evidence is found, so much still rides on who argued what during the original trial. If a lawyer doesn’t challenge a piece of evidence at a specific time, they can’t ever bring it up again. If a lawyer raises an argument and loses, it can’t be brought up again. It’s not easy to get legal wins for an incarcerated person, especially one already on death row.
“It is structured in a way that it’s more important not to disturb a conviction than to get to the truth,” said Dunham.
Florida leads the national list with 30 death row exonerations, while Alabama has 7.
‘Red flag of innocence’
Today, faced with the DNA results, the state stands by their conviction. Prosecutors say it’s also possible that Barbour and Jackson, the man who left behind the DNA, worked together.
But there’s no evidence the two ever met.
In fact, Alabama prosecutors recently argued that the case for Jackson having been involved in the killing is “speculation.” They suggested the judge put less emphasis on the new scientific evidence and lean on the decades-old confession.
Prosecutors wrote in a court filing earlier this year that “although there is much speculation on Barbour’s part, there is no actual evidence — outside of the DNA test results — to suggest that Jackson may have been involved in Roberts’s murder.”
They continued: “In other words, there is no evidence presented that Barbour did not commit the crime to which he confessed and for which he was convicted by a jury of his peers.”
Barbour’s lawyers asked for DNA testing for decades. The Alabama Attorney General’s Office fought that, too, saying there was no need for retesting because they had their man.
But what would have been the harm to the state had that DNA been tested decades ago?
“What I can never understand is why prosecutors ever oppose DNA testing,” Dunham said.
“And why opposition to DNA testing isn’t a red flag of innocence.”
Read More
