The Herbert Bassette Story

A trio of drug-addicted felons testifies for the prosecution in exchange for leniency.

Serious questions about guilt led Governor to commute death sentence based on another wrongful conviction.

By Barbara Jean McAtlin
Justice: Denied Staff

On January 12, 2001, Herbert Russell Bassette spent his 56th birthday in his lonely cell at the Red Onion State Prison in Pound, Virginia. Even in such a bleak and depressing environment, Herbert is lucky to be alive to celebrate his birthday. In 1980, he was handed a sentence of death for the 1979 murder of Albert Lee Burwell, Jr., a gas station employee. In 1992, Herbert's death sentence was commuted to life in prison without possibility of parole by then-Governor Douglas L. Wilder after compelling evidence showed that Herbert was not involved in the crime or in a previous 1966 crime that had been used as the basis for the jury's recommendation of death.

This compelling evidence shows that two different men committed the two crimes for which Herbert had been convicted. The only reason Herbert was given a sentence of death was because of a prior conviction in 1966. Very possibly this was the first of two wrongful convictions. Herbert had been convicted of shooting a Holiday Inn employee, James Wallace, during a robbery. Recent evidence shows that Herbert was wrongfully convicted of that crime also, but he spent thirteen years in prison paying for it before he was released on parole. The true gunman was a good friend of Herbert's and he felt that he would be less than a friend if he turned him in. Herbert took the prison sentence and did the man's time instead. The actual gunman in the 1966 shooting has admitted to Herbert's lawyers that he was the gunman and that Herbert was not involved in that crime at all. Herbert's attorneys were able to use the transcript of their conversation with the admitted gunman to help gain his release from death row. However, even if the gunman were to admit directly to the Commonwealth of Virginia to being the gunman in that crime, Virginia's tough 21-Day Rule would effectively keep that information from being used to help free Herbert Bassette from prison.

With each year that Herbert spends in prison, the flimsy evidence that was used to convict him of the 1979 crime gets even more flimsy and threatens to collapse the Commonwealth's house of evidentiary cards. Significant evidence has brought to light that a man named Tyrone Jackson committed the murder of Albert Burwell, Jr. Jackson confessed the murder to a friend shortly after the crime was committed. Jackson's friend found his confession quite credible and believable until she was called to testify about it in court. She says now that the prosecution asked her to claim that Jackson's confession was unbelievable because he was a braggart. She has since signed an affidavit stating that there was no reason for her to NOT believe Jackson's confession.

The dubious case against Herbert revolves around three "accomplices" to the murder who were facing the electric chair for the shooting death of Albert Lee Burwell, Jr. All three of these so-called accomplices of Herbert's were admitted drug addicts and felons. All three had lengthy prior records for crimes ranging from theft to prostitution to fraud to murder, as well as active charges in place against them at the time of Herbert's trial. All three had done hard time in prison and were considered incorrigible. These people had everything to gain by pointing the finger at someone else. They chose Herbert Russell Bassette as their target. Herbert was acquainted with all three of the witnesses who ended up testifying against him. They had tried to frame him for a bank robbery at another time but Herbert was in traffic court the day of the crime and the police officer who had given Herbert a speeding ticket was able to testify that Herbert could not have played a role in that robbery because he was in traffic court with the officer. The three accomplices had approached Herbert and asked him to provide an alibi for them during the time they were pulling off the bank robbery. Herbert refused. His refusal paved the way for his walk toward a death sentence. One way or another, these people were going to make sure that Herbert paid for his refusal.

The only evidence that was used against Herbert in court was the testimony of the three accomplices, a trio of drug-using felons, people with much to gain and nothing to lose by pointing the finger at Herbert Bassette. In 72 capital cases in the Commonwealth of Virginia from 1970 until 1991, not once was a defendant sentenced to death solely on the testimony of accomplices -- except for Herbert Bassette. There was no physical evidence tying Herbert to the crime. There were no eyewitnesses who could point at Herbert and theatrically cry "that's the man!" There were no independent witnesses who could link Herbert to the crime in any way. There is no confession from Herbert, only his cries of innocence. There was NO evidence that Herbert took any part in this crime to be found -- just the testimony of three felons who were dealt special deals by the prosecution for their testimony against Herbert.

The prosecution denied that any "special deals" were dealt to these accomplices, but uncovered evidence shows that one of the accomplices, Betty Jean Winfield, had the capital murder charges against her in this same crime dropped to one charge of accessory to murder. It also shows that the second accomplice, Jeannette Green, had the charges against her of capital murder in the Burwell case dropped. She wound up serving three years in a California prison for a parole violation instead. Samuel "Dap" Cook spent only a few short months in jail for his part in the crime. Tyrone Jackson was arrested for capital murder but after he implicated Winfield, Cook and Green, the charges against him were dropped. Even though Jackson implicated them, these three people willfully withheld evidence from the jury that Jackson was with them on the night of the crime. Instead of pointing their collective finger at the true culprit, the man who turned them in, they chose to try to deceitfully improve the flimsy case against Herbert Bassette in return for favors from the prosecution. Herbert was indeed very fortunate that Governor Wilder took the time to pay attention to his plea for mercy or the Commonwealth of Virginia could have easily had the blood of yet another innocent person shed on its soil in its overly zealous fight against crime.

Herbert was tried for the murder of Albert Lee Burwell, Jr. in June 1980. The woman who had heard Tyrone Jackson's confession to the crime did not appear to testify about it. Herbert's defense team was forced to go on with the trial without her. A mistrial was declared when the jurors couldn't agree that Herbert was guilty of the charges against him. The Commonwealth decided to try Herbert a second time. At his second trial in August 1980, the woman who had heard the confession of Tyrone Jackson testified that she hadn't believed Jackson when he told her of his part in the crime, despite the fact that she was already on record as saying that she believed his confession entirely. Despite a lack of any credible testimony and independent evidence, the absence of a motive and his cries of innocence, Herbert was convicted of capital murder. During the sentencing phase of Herbert's trial, he was sentenced to death after the judge told the jury that they could sentence him to death if, after consideration of his past conviction (the 1966 shooting in which another man admitted to being the gunman), they found that there was a probability that he would commit future acts of violence. The jury found Herbert guilty "after careful consideration of his pastcriminal record..." and sentenced him to death.

What the jury never heard:

1: Tyrone Jackson admitted in his confession to his friend that he was with the three accomplices on the night of the Burwell murder.

2: When speaking of Jackson's confession, his friend says he told her "that he killed a boy last night for $97...shot him 5-6 times, threw him in some woods and he worked at the Mascot Service Station, the reason for him killing the boy was because he was some kin to his wife Karen and could easily identify him, and it wasn't worth it etc...." (sic)

3: The woman never told the jury that on the day of the robbery, she cased the Mascot station with Jackson and Winfield.

4: Green now places Jackson driving around with the three accomplices in a white Cadillac as they looked for a place to rob. In 1979, Jackson drove a white Cadillac.

5: Unlike Herbert, Jackson can be linked to the murder weapon. Winfield said, "I had it when we went into the house [after the murder]. Tyrone had done gave it back to me and I put it in my pocketbook and carried it in 'cause he wanted everything that -- it was my pistol 'cause he owed me some money for drugs." (sic) The Commonwealth entirely failed to connect the murder weapon to Herbert. The Commonwealth couldn't even show that Herbert owned -- or that he did not own -- a .22 pistol.

6: The day after the murder, two women purchased the pistol from Winfield, Jackson and Green for $75. When Jackson sold them the weapon, he told them it had been used in a murder. Jackson borrowed the gun from one of the women a short time later to commit a bank robbery. After the robbery, Jackson returned the gun to the woman. The only time the gun "appeared" in Herbert's hands was through the testimony of the accomplices. Eyewitnesses with no interest in Herbert's trial have linked the gun directly to Jackson.

More aspects of this case to think about:

1: Jackson had a motive to rob and murder Burwell. He was a $75-a-day heroin addict with a part-time job that paid only $30 per day. Only twelve hours after the murder Jackson was "sick" and needed more drugs to feed his habit. Herbert was working full-time and earning $320 a week. His wife was working and earning $600 a month. Neither had a drug addiction problem.

2: Jackson was also trying to scrape up enough money to bail his wife, Karen, out of jail while she awaited trial on other charges.

3: Despite the fact that Herbert's car and the area surrounding his apartment were thoroughly searched, an Henrico County forensic detective was forced to admit that they found no fingerprints, footprints, tire marks, bloodstains, clothing fibers or any other forensic evidence that even remotely suggested that Herbert was at the murder scene or that he even took part in the crimes.

4: At Herbert's trial, the accomplices described events that would have given any number of people a chance to watch Herbert commit this crime. According to them, Herbert is supposed to have marched Burwell up a hill from the Mascot Station to a waiting car. The station is located at a heavily traveled intersection. There would have been many people who would have caught sight of this type of action. At Green's trial, the Commonwealth questioned two men who said that they had seen Winfield and Green at the Mascot Station, but not Herbert. For these men to say that they had seen Winfield and Green, but not Herbert, is simply not plausible.

Inconsistencies, Contradictions and Flat-out Lies:

1: On the afternoon of the crime, Winfield, Green and Cook stopped at the Bassette apartment. Shortly after they arrived, Winfield, Green and Herbert's wife, Demetress, drove a black Monte Carlo to Herbert's place of employment to pick up his paycheck. According to Cook's testimony, while the women were gone, he and Herbert drove around in a black Monte Carlo looking for a second gun to use in a robbery. Winfield testified that during this same time, she, Green and Demetress were driving the black Monte Carlo to pick up Herbert's paycheck. If the testimony from these two accomplices is to be believed, the same Monte Carlo was carrying different passengers to different places at the same time. After Cook realized that he had been caught in a lie, he said that he and Herbert left in another car and that he could no longer remember the make or the color of the second vehicle. The only other car Herbert owned at this time was inoperable.

2: The accomplices said that Herbert was alone when he led Burwell up the hill to the car at gunpoint. The other pump attendant who was on duty that night told the owner of the station that he had seen Burwell walk up the hill with two women. He never mentioned seeing a man.

3: At one point, Winfield says she only heard a gun being fired and did not see the actual shooting of Burwell. Then she said it was too dark for her to see. Then she said she had turned her head because she didn't want to see. Next, she claimed that she saw Burwell kneeling when he was shot. Then she decided he was lying down. Then she decided he was either lying down or kneeling. She finally decided that Burwell had to have been kneeling because "That's when you're saying your prayers."

4: Cook and Winfield cannot agree about whether it was daytime or nighttime when the four of them left Herbert's apartment to commit the Mascot Station robbery.

5: Winfield cannot testify consistently about the abduction of Burwell from the station.

6: The accomplices contradict each other about who suggested targeting the Mascot Station for a robbery.

7: Cook cannot correctly identify the location of the murder of Albert Lee Burwell, Jr.

8: Cook both denies and admits to knowing Tyrone Jackson.

Many people, including Herbert's wife, mother and mother-in-law, testified that Herbert had been with them on the day of the murder. That evening, Herbert and his wife drove quite a few miles out of town with a man who had hit Mrs. Bassette's car a week earlier to get an estimate for repairs to the car. The man testified to this in court. Around 8 p.m., they dropped the man off at his home. After they dropped the man off, they went to Demetress' mother's house for a short visit. They returned home at about 11 p.m. and went to bed.

It appears that the case against Herbert Russell Bassette was built on lies and deception. Were his "accomplices" trying to cover for Tyrone Jackson, a man they were afraid of, or were they trying to keep themselves from "frying" for the crime they committed? Unfortunately, we will probably never know. There is little chance that this new evidence will ever be heard by a Virginia court because of the 21-Day Rule. This terribly unfair rule states that no new evidence -- even exculpatory evidence -- will be heard after 21 days after conviction. Herbert has suffered two heart attacks in the past 22 months. He feels that he will probably never see justice done in his case but he truly hopes that his case might be of help to someone else in his position. Herbert feels that his case could be used as an argument against the 21-day rule as well as help to show the level of bigotry in the South. His case can also be used as an argument against the death penalty because he was sentenced to death based on the first wrongful conviction. It's because of questions about the judge telling the jury they could use the first wrongful conviction to sentence him to death that Governor Wilder commuted his death sentence.

Herbert Russell Bassette
#089088
Augusta Correctional Institute
PO Box 1000
Craigsville, VA 24430

This story could never have been written without the help of the law firm of Hunton & Williams in Richmond, Virginia. They graciously supplied me with a copy of their clemency petition for Herbert as well as answers to my questions. They are professional, friendly and helpful as well as true seekers of justice.