Case Open

No physical evidence. No witnesses. A recanted confession. So why is Max Soffar still on death row?

I'VE SEEN COOL HAND LUKE and The Green Mile. I like Steve Earle, but I'm not a prison reform activist. I'd never interviewed anyone on death row until the middle of January, when I picked up a telephone and looked through the clear plastic divider at the haunting reflection of my own humanity in the eyes of Max Soffar. Max doesn't have a lot of time and neither do I, so I'll try to keep it brief and to the point. "I'm not a murderer," he told me. "I want people to know that I'm not a murderer. That means more to me than anything. It means more to me than freedom."

Somewhere along the line, Max's life fell between the cracks. A sixth-grade dropout whose IQ tests peg him as borderline mentally retarded, he grew up in Houston, where he was a petty burglar, an idiot-savant car thief, and a low-level if highly imaginative police snitch. He spent four years, he says, "in the nut house in Austin," where he remembers the guards putting on human cockfights: They would lock two eleven-year-olds in a cell, egg them on, and bet on which one would be able to walk out. Max ran away, and it's been pretty much downhill from there.

For the past 23 years, since confessing to a cold-blooded triple murder at a Houston bowling alley, Max has been at his final station on the way: the Polunsky Unit, in Livingston. But he long ago recanted that confession, and many people, including a number of Houston-area law enforcement officers, think he didn't commit the crime. They say he told the cops what they wanted to hear after three days of interrogation without a lawyer present. At the very least, they say, Max's case is an example of everything that's wrong with the system. In the words of my friend Steve Rambam, who is Max's pro bono private investigator, "I'm not anti-death penalty; I'm just anti-the-wrong-guy-getting-executed." Another observer troubled by Max's case is Fifth Circuit Court of Appeals judge Harold R. DeMoss Jr., who wrote in 2002, after hearing Max's last appeal, "I have lain awake nights agonizing over the enigmas, contradictions, and ambiguities" in the record.

Chief among these Kafka-esque elements is the fact that Max's state-appointed attorney was the late Joe Cannon, who was infamous for sometimes sleeping through his clients' capital murder trials. Cannon managed to stay awake for Max's, but he did not bother to interview the one witness who might have cleared him. There are, incidentally, ten men on death row who were clients of Cannon's.

Then there's the evidence—or the total lack of it. Jim Schropp, a Washington, D.C., lawyer who has been handling Max's case for more than ten years, also on a pro bono basis, says it seemed cut-and-dried when he initially reviewed the file. "But the more we looked into it," he told me recently, "the facts and the confession didn't match up." Schropp discovered that there was no physical evidence linking Max to the crime. No eyewitnesses who placed him at the scene or saw him do it. Two police lineups in which Max was not fingered. Missing polygraphs. If the facts had been before them, Schropp says, no jurors would have believed that the prosecution's case had eliminated all reasonable doubt. "When you peel away the layers of the onion," he says, "you find a rotten core."

Okay, so what about the confession? Rambam says that when Max was arrested on August 5, 1980, for speeding on a stolen motorcycle, it was the third or fourth time he'd been caught for various offenses, and he thought he could deal his way out again, as he'd done before. The bowling alley murders had been highly publicized, and Max had seen the police sketch of the perpetrator, which he thought resembled a friend and sometime running buddy. Max and the friend were on the outs—they'd agreed to rob their parents' houses, but after they robbed Max's parents' house, the friend reneged—so to get revenge and to help his own case in the process, Max volunteered that he knew something about the murders. Unfortunately, in his attempt to implicate his friend, he placed himself at the scene, and before long he became a target of the investigation himself. "The cops spoon-fed Max information, and he gave them what they wanted," Rambam says. "He was a confession machine. If he thought it would have helped him with the police, he would have confessed to kidnapping the Lindbergh baby."

The trouble is, Max's confession—actually, he made three different confessions—contained conflicting information. First he claimed to be outside the bowling alley when the murders took place and that he only heard the shots. Then he said he was inside and saw it all go down. Then he said his friend shot two people and threw him the gun, whereupon he shot the other two; it was like a scene in an old western. The written record of Max's confession states there were two gunmen, himself and his friend; the only surviving victim, the witness Joe Cannon didn't bother to interview, says there was only one. Max also told the cops that he and his friend had killed some people and buried them in a field. The cops used methane probes and search dogs and found nothing. He claimed that they had robbed several convenience stores, which turned out never to have been robbed. Best of all, when the cops told him that the bowling alley had been burglarized the night before the murders, Max confessed to that crime as well. What he didn't know was that the burglars had already been arrested. "We won't be needing that confession," the homicide detective reportedly told him. After signing the murder confession, Max asked the officers, "Can I go home now?"

You may be wondering: What about the friend? He was arrested solely on the basis of Max's confession but was released because there was no evidence

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