The lawyer for a Tarrant County man set to be executed in November for hijacking a city bus, then raping and killing a passenger in Fort Worth in 1987 is seeking a delay in the execution as he fights for DNA testing to be done in the case.
In a motion filed Friday, attorney Greg Westfall argues that DNA testing has never been done in the capital murder case that sent his client, Emanuel Kemp Jr., to death row.
He argued the case against Kemp was largely circumstantial and relied heavily on the testimony of a single witness — bus driver David Jeanfreau.
Westfall also filed a separate motion asking the court to withdraw Kemp’s execution date — set for Nov. 7 — until the DNA motion and related issues “may be fully litigated.”
County criminal court Magistrate Charles Reynolds issued an order Monday, giving the District Attorney’s office 60 days to file a response to Westfall’s motion.
Westfall declined to comment to the Star-Telegram, adding “the motion kind of speaks for itself.”
Samantha Jordan, a spokeswoman with the Tarrant County District Attorney’s office, said she could not comment on the motion Wednesday.
Reached by phone Wednesday, Jeanfreau said he remains sure of Kemp’s guilt in the rape and fatal stabbing of Johnnie Mae Gray, a 34-year-old emergency room clerk at John Peter Smith Hospital who was a regular on his bus.
“I never had any doubt that this is the right guy,” said Jeanfreau, who now resides in Colorado.
Kemp, who had a past history of aggravated robbery, had been released from prison days earlier when, officials say, he boarded a city bus late on May 27, 1987.
David Jeanfreau, the bus driver, testified he was approaching the stop for Gray, a regular passenger, when he heard Gray say something about her purse and turned to see Kemp standing over his shoulder with a knife.
“This is a robbery,” he testified Kemp told him.
Jeanfreau said he initially cooperated with Kemp because he believed it would save him and Gray, his lone passenger. He said he followed Kemp’s order and drove to a secluded parking lot inside Trinity Park.
There, he testified, Kemp raped Gray on a bus seat, then began stabbing her.
Jeanfreau testified that when he yelled at Kemp to “Just get out. You got what you wanted. Why don’t you just leave?’, ” Kemp turned the knife on him, stabbing him in the neck. Jeanfreau told jurors he was able to escape out the back door of the bus, jumped into the river, and then hailed down a passing motorist.
Police arrived in the early morning hours of May 28, 1987, to find Gray dead aboard the bus from multiple stab wounds.
Four days after the attack, Jeanfreau picked Kemp out of a police lineup as the person responsible, telling jurors he was “absolutely sure” he had picked the right man.
Kemp’s defense attorney at the time, Leon Haley, argued that police never fully investigated other potential suspects in the case, including the bus driver.
In his motion, Westfall points out that Kemp never confessed to the crime and that another rider on the bus, who’d been dropped off before the hijacking, failed to identify Kemp in a police lineup.
“This was, for the most part, a circumstantial case,” Westfall states in the motion. “The bus driver was the only person to make an identification at the lineup, which was a cross-racial identification. He was the only identity witness to testify.”
Westfall also argues that the only physical evidence in the case was a shirt found along with the dead woman’s purse in the Botanic Gardens.
Other evidence included testimony that Kemp was seen getting out of a yellow Lincoln Continental before boarding the bus — the same kind of car owned by Kemp’s mother, the motion states.
If DNA testing is conducted on biological evidence in the case — including a sexual assault evidence collection kit, a bus seat cover with a semen stain, and blood collected from the crime scene and a shirt — Westfall argues his client could be excluded as the source, undermining such circumstantial evidence.
His motion includes transcripts of testimony from two people who testified in Kemp’s trial — Fort Worth crime scene officer Jim Varnon and Billie Shumway, a forensic serologist with the Fort Worth police crime lab.
Varnon testified that out of 14 identifiable latent fingerprints he collected from inside the bus, none belonged to Kemp.
Shumway testified that neither Kemp nor the bus driver could be excluded as the source of the semen stain found on the bus seat or the semen found in Gray’s sexual assault kit. She testified the two men were among about 32 percent of the males in Tarrant County who could have been the source based on their blood type.
“The results of her testing were imprecise to say the least, and included both (Kemp) and the bus driver in the population of persons who could have been responsible for the biological specimens found on the bus,” Westfall states in his motion. “The total population who could have been responsible equated to about one-third of the males in Tarrant County.”
A jury convicted Kemp in April 1988 and sentenced him to death.
“Punishment fits the crime”
Gray’s mother died in 2004, online record searches show.
Jeanfreau said he’s occasionally checked through the years to see if an execution date had been set for Kemp. But he said he has no plans to be there to see Kemp put to death by lethal injection, nor is he overly concerned about a possible delay in his date with death. After all, he said, it’s already been 31 years.
“I’m not really emotionally riveted by what happens to this guy,” Jeanfreau said. “Clearly I think the public has supported his existence long enough with state funds, but I’m not obsessed with the execution date.”
Still, Jeanfreau said, he believes “the punishment fits the crime.”
“I have no objection to the death penalty when it’s appropriate,” he said.
Kemp has been on Death Row since 1988 and has had at least one prior execution date set. He was a week away from lethal injection when a federal judge intervened in 1999 and granted him a stay until the he could be appointed a new attorney.
His attorneys (Westfall has represented him since 1999) have previously argued that Kemp has schizophrenia and is too severely mentally ill to be executed.
Kemp, 52, was brought from Death Row and booked into the Tarrant County Jail on Aug. 29 on a bench warrant while his fate is determined.
He remained held there Wednesday.