Death Row inmate whose conviction was overturned maintains that he is innocent
Overturned conviction revives inmate’s claim of innocence, victims’ pain from 23 years ago
By ALEX BRANCH
LIVINGSTON — Since he arrived on Texas’ Death Row in 1999, Michael Roy Toney has proclaimed his innocence to anyone he thought might listen.
Charles Ferris, now 55, still lives in Parker County. He says he has a clear memory of the day he told authorities that Michael Toney had bombed the Blounts’ trailer.
He also says it was a lie.
In August 1997, Ferris was in the Parker County Jail on charges of driving without a valid license. Locked up with him was Toney, a 31-year-old career criminal with nine felony convictions for crimes that included burglary, assault, injury to a child and drunken driving.
Toney grew up in California. His mother would later say her son was a good child but found trouble in his teens after moving to Texas to live with his father. He dropped out of school in the 10th grade.
Toney often came up with scams to help prisoners gain privileges, Ferris said. He suggested that Ferris, who also had a past theft conviction, tell authorities that he knew who blew up the Blounts’ trailer. It would help Ferris gain early release, Toney told him.
Another inmate later confirmed that he heard Ferris and Toney concoct the plan.
At his trial, Toney would testify that he knew about the bombing only because he had once been locked up with Bennie Joe Toole, a former roommate of Michael Huff, the 15-year-old investigated in the bombing. Toney said Toole told him about the case.
Ferris says Toney gave him permission to name Toney as the bomber.Toney tells it slightly differently.
"I just said, 'I don’t care who you say,’ " Toney said from Death Row. "Ferris knew more about this crime than I did. I didn’t know who was killed, where exactly it happened or when it happened. . . . It was stupid."
But it worked. Ferris soon was released.
Ferris says he recanted shortly afterward and authorities "made my life hell" for it. Neither the prosecution nor the defense called him to testify at Toney’s trial.
"I was pretty much the reason Michael got into all that trouble," Ferris said. "I didn’t figure they could convict him. I look back at everything that has happened with my mouth hanging open."
Ferris’ tip led investigators to the two key witnesses against Toney: his former best friend, Chris Meeks, and his ex-wife, Kimberly Toney.
Michael and Kim Toney married in 1986 and divorced in 1989. She said he abused her. But in 1985, they were dating, and Toney spent most nights at her apartment. His best friend was Meeks, with whom he drank, chased women, and stole heavy equipment and car batteries.
Michael Toney and Meeks ran a construction business together, although they had no office.
When first visited by investigators on Oct. 7, 1997, Kim Toney said she knew nothing about a bombing on Thanksgiving Day 1985. After they left, she went to the library and looked up newspaper articles about the crime."I realized I was at that spot the night the explosion took place," she later testified.
Meeks and Kim Toney told this story at Michael Toney’s May 1999 trial:
In fall 1985, Michael Toney was acquainted with some "Samoans or Hawaiians" who spoke Tongan. They hung out at an old movie theater in Euless. A week before Thanksgiving, Meeks overheard a conversation between Toney and the Samoans — one of whom went by the name Larry — in which the words contract and bombing were mentioned.
A few days later, Toney showed Meeks a bomb in a briefcase and said he needed to "blow something up."
On Thanksgiving night, Meeks, Toney and Kim left her apartment in Michael Toney’s Chevrolet Silverado. He parked near a propane business that was close to the Blounts’ trailer. Toney removed a briefcase from the back of the pickup and disappeared in the direction of the Blounts’ trailer.
He returned a few minutes later — empty-handed.
Toney was "kind of giggling" and saying "he had fulfilled the contract," Meeks testified.
Toney testified that he was at home the night of the bombing. He said that Meeks was lying and that Kim Toney was mistaken.
Under cross-examination, he admitted lying many times in his life.
It took only four hours for jurors to convict Toney of capital murder. Five days later, after the punishment phase, they sentenced him to death.
The defense’s perspective
The defense’s theory is that the trip that the three took actually occurred about a month after Thanksgiving and had nothing to do with a bombing.
Mallin, of the district attorney’s office, declined to comment on Toney’s lawyers’ specific arguments. Kim Toney testified that after Toney delivered the briefcase, they drove to the nearby Fort Worth Nature Center, where Toney shot a beaver with a .22-caliber rifle. But records show that the rifle wasn’t purchased until December.
And Toney, his lawyers say, did not buy the pickup until December. In November, he drove a blue Monza, a former girlfriend recently said.
In 2006, Toney’s lawyers used an open-records request to obtain the evidence withheld from the defense during the trial. They say it shows that investigators "shaped" and "cajoled" Meeks’ and Kim Toney’s memories.
Among the withheld documents was a report detailing the first statement that Kim Toney gave to investigators. In it, she did not mention seeing Toney with a briefcase the night of the bombing. Only after investigators brought in a "cognitive interview specialist" three days later did she recall it.
Also, in a published report after the trial, Kim Toney acknowledged that her memory was affected in the early 1990s by exposure to toxic chemicals while she served in the Persian Gulf War. The reports raise doubts about her account, Michael Toney’s lawyers say.
Kim Toney, now living in Wisconsin, said she stands by her memory of the briefcase.
"That idea wasn’t planted," she said. "It goes through my head every night. It is what happened.
"I don’t want to say anything that will jeopardize the case. My story is the same. It is not going to be recanted."
Another withheld document recounts investigators’ first interview with Meeks, who was then living in New Mexico and on probation for his fourth DWI. Meeks first responded, "I don’t even know what you’re talking about. Honest to God, sir, I do not remember anything about any bombing."
Toney’s lawyers contend that once Meeks realized investigators would not accept his honest answers — and, worse, believed he was with Toney when the bombing was committed — he allowed them to craft his story to fit their theory. When his answers deviated, they say, investigators pressed him until he changed them.
"Not only does the DPS report show that Meeks’ initial account to the Blount Task Force was drastically different than what his story would become . . . the records also show how Meeks’ first account was manipulated and transformed into his final, incriminating account," defense lawyers stated in court filings.
Later, after the trial, Meeks signed an affidavit for an investigator for the defense acknowledging that the events might not have happened the way he testified. Reached by phone recently at his home in New Mexico, Meeks drew a long sigh upon learning the caller was a reporter.
"Man," he said, "I don’t have anything to say."
Also unearthed by the defense was a record of a task-force interview with a Tongan named Tisileli Lupeheke, who lived in North Texas in 1985. He told investigators that he hung out at the movie theater in Euless and was the only Tongan there who went by Larry — the same name as the "Samoan or Hawaiian" whom Meeks testified he had heard discuss a contract and a bomb with Toney.
Jurors never learned that "Larry" passed a polygraph and was cleared of involvement in the bombing. Or that he was a 17-year-old student at Trinity High School when it occurred and thus, Toney’s lawyers reason, an unlikely candidate to be ordering bombings.
Prosecutors argued later in court papers that the interview was irrelevant because there was no proof that Lupeheke was the same "Larry" Meeks referred to.
Finally, there is Finis Blankenship.
While Toney was awaiting trial, Blankenship was in jail with him. Blankenship testified during the punishment phase of the trial that Toney had told him that he was offered $5,000 to make and plant the bomb but that he left it at the wrong trailer.
Today, like Ferris, Blankenship has recanted. He said he told the story because he needed medical care and he believed testifying would help him get out of jail.
"I had just had a stroke and heart attack, and I was scared I was going to die," said Blankenship, now 76. "So that is the whole reason that happened."
At the Polunsky Unit outside Livingston on Dec. 3, tattoos on both biceps peeked out from under the sleeves of Toney’s white prison shirt. His hair was short and combed.
Toney said he was initially hesitant about granting an interview because, at the time, he was still awaiting a ruling from the appeals court.
He said he is scared of "the system." "It’s not about truth or justice," he said. "It’s about closing the books on a crime they obviously hadn’t been able to solve. They had blinders on. Once they thought they could convict someone, innocence didn’t matter."
In court papers filed last year, Tarrant County prosecutors scoffed at Toney’s innocence claims.
"Mr. Toney was asking [the court] to believe that he randomly and jokingly implicated himself in a bombing and that, when questioned, two people who had not seen or talked to each other in 12 years told stories that matched in amazing details," they wrote.
"It would take a complete suspension of disbelief to think they would both mistakenly place Toney at a scene where they had no reason to be on the very night of the bombing."
The thought of a new trial sends shivers through relatives of the victims. Susan Blount said she wants Toney to be convicted again, but sitting through another trial is "just beyond my imagination." However, she said she and Robert would return to Texas for it.
If prosecutors do not retry Toney, he could walk free.
"I was scared to death when I heard that there was a possibility that he would walk the streets again," she said. "He could just walk to the front door."
But, she said, she decided not to allow herself to live that way.
"I am not going to be afraid of this man," she said.
Told this, Toney said the Blount family has nothing to fear from him.
"I don’t know the Blount family," he said. "I have no hard feelings toward the Blount family; as a matter of fact, I am very sympathetic to their situation. Their family members were killed in this crime; they need closure."
He shook his head. After 23 years, he said, he doesn’t think closure exists for anyone.
"I don’t see how the truth could ever enter the picture now," he said.
"It’s too distorted."
What happens next?
The Tarrant County district attorney’s office must decide whether to retry the 23-year-old case. Right now, officials intend to retry Michael Toney, although the case will be reviewed before a final decision is made, said Chuck Mallin, chief of the appellate division.
What happens to Toney while they decide?
Toney remains on Death Row in Livingston in East Texas. Jason Clark, a spokesman for the Texas Department of Criminal Justice, said his understanding is that a bench warrant will eventually be issued to transfer Toney to Tarrant County, where he will await trial. Toney’s defense team has not decided whether he will seek release on bail, said Rebecca Bauer Kahan, one of his attorneys.
What happens if prosecutors decide not to try the case?
Toney’s lawyers believe that he has served enough prison time to satisfy his past convictions. So, they say, he would most likely walk free.
||Death Penalty Issues