Official Misconduct
THOSE WHO DO the arithmetic attest that eyewitness error accounts for more than half the wrongful convictions in the United States. If the identifications of jailhouse snitches are added to the mix, the total would be nearly two-thirds. But while false eyewitness testimony may be the proximate cause in most cases where the wrong man is sent to the death house, it is rarely sufficient to get a conviction. Corrupt practices, usually prosecutorial misconduct, are present in almost every instance, greasing the rails on which hundreds of innocent people are sent to death’s door. Misidentifications are not always the honest mistakes of well-meaning citizens doing their civic duty. They are prompted by police eager for an arrest, orchestrated by prosecutors hungry for a conviction, nourished by judges who owe their seats to a public that has not outgrown its wistful nostalgia for frontier justice.
The corrupt practices of those who run the machinery of justice are not the aberrations of an otherwise sound system. They have been woven into the fabric of a social structure that often appears to presume guilt rather than innocence. The ideal of justice that once favored our best instincts has been turned against itself. The great fear of a politician or prosecutor is not that an innocent man may be convicted but that a guilty one might walk free. Which candidate seeking public office today will be ready to chance the prospect of being called soft on crime?
By most educated estimates, about 10 percent of the inhabitants of death row or inmates serving life sentences are innocent. They were put where they are by a combination of such corrupt practices as: police perjury, which has become so commonplace that defense attorneys often refer to testimony by police as “perjumony;” the false testimony offered by those who themselves are in trouble with the law—sometimes suspects, often already incarcerated—who receive favors in return for their fabrications; prosecutors who withhold evidence that might benefit the defense; incompetent or overworked defense lawyers, some of whom have been known to sleep through their clients’ trials while presenting virtually no defense at all; and confessions that have been prompted or coerced from suspects who have little or no understanding of how the law works.
When a defendant is acquitted on the basis of such misconduct, there invariably ensues a public outcry that a guilty man may have been turned loose on a technicality. But in truth there are no technicalities, only laws designed to protect the innocent that have been skirted or twisted by those whose power has corrupted the system badly, albeit not yet absolutely.
The Death Row 10
Illinois
They became known as The Death Row 10. Their renown was not of long duration nor did it spread very far, but it earned them at least a footnote in the nation’s grim struggle with its penal system. They were all prisoners on Illinois’ death row who were alleged to have been beaten and tortured by former Chicago Police Commissioner Jon Burge and his detectives. Although they were not charged at the time, Burge and the detectives were forced into taking early retirement in 1993. Five years later, the ten men joined together inside prison and asked the Campaign to End the Death Penalty (CEDP), a national organization that worked at the grassroots level for the abolition of capital punishment, to help them organize.
The CEDP took their cases, and along with volunteer help from other groups including attorneys and students from the Bluhm Legal Clinic of the Northwestern University Law School, four of the men were exonerated. On January 10, 2003, Illinois Governor George Ryan pardoned Aaron Patterson, Madison Hobley, Leroy Orange, and Stanley Howard on the grounds that they had been physically coerced into confessing to crimes they did not commit. The following day, convinced that the four represented a system that had become totally corrupted, the governor commuted the sentences of all of the remaining 167 prisoners on Illinois’ death row. On March, 9, 2011, he signed legislation ending capital punishment in the state of Illinois.
Ryan’s action, audacious by any political standard, prompted a new debate regarding the application of capital punishment. Although only four of the ten were exonerated, the case of the Death Row 10 gave impetus to the abolition movement.
Aaron Patterson
Illinois
Back in the old neighborhood no one wanted to mess with Aaron Patterson. He was as tough as they came and his reputation as leader of Chicago’s Apache Rangers street gang further embellished his tough-guy image. It was that image, no doubt, that contributed to his spending more than fifteen years of his young life on death row for a crime he did not commit.
The crime was the murder of an elderly couple, Vincent and Rafaela Sanchez, who were found stabbed to death in their home on the south side of Chicago in 1986. Patterson was arrested on the basis of a tip provided by a woman named Marva Hall who was the cousin of another suspect. Hall told the police Patterson had admitted to her that he had committed the murders. He was arrested eleven days after the victims’ bodies were found. Four hours later he signed a confession. Indicted by a grand jury, he was eligible for the death penalty because there were multiple murders and the crime had taken place during the commission of a burglary, another felony.
Before the trial began, Patterson filed a motion to suppress his confession on the grounds that it had been coerced after four hours of police interrogation during which he had been severely tortured. The motion was denied in Cook County Circuit Court. Patterson’s allegation of police abuse was made, in its own crude fashion, at the time of his interrogation. Left alone for about an hour after he promised to confess, Patterson had used a paper clip to etch a message into a metal bench. The message read: “Aaron 4/30 [the date of the interrogation] I lie about murders. Police threaten me with violence. Slapped and suffocated me with plastic. No lawyer or dad. No phone. Signed false statement to murders.”
At trial, Patterson testified that he had been intermittently beaten and smothered with a plastic typewriter cover before agreeing to confess. After the brief respite during which he etched his note, Patterson said an officer brought Assistant State’s Attorney Kip Owen into the room. Patterson asked if he could speak to Owen alone and the officer left. He told Owen that he had been tortured and asked for an attorney. Owen then left and summoned the officer to return. Patterson testified that the officer threatened him with further torture until he agreed to sign the confession drafted by Assistant State’s Attorney Peter Troy. The officer, who was not named in court, was later identified as Jon Burge, at the time a lieutenant and later commander of the police unit. The three men involved in extracting the confession—Burge, Owen, and Troy—were not directly involved in the torture.
The jury wasted little time in returning a verdict of guilty. They also found no mitigating circumstances to prevent the imposition of the death penalty. An appeal to the Illinois Supreme Court brought no relief. It paid little heed to Patterson’s charge of physical coercion. Yet, aside from Hall’s dubious identification, there was no other evidence on which he could have been convicted, let alone sentenced to death—no forensic evidence, no murder weapon, no physical evidence of any kind. Further, his charge of torture by Burge and his crew could not have been seen as entirely baseless. Substantial evidence had accrued from as far back as the 1970s that they had used torture to extract confessions from scores of prisoners. Just five years before denying Patterson’s appeal, the Supreme Court had ordered a new trial for Andrew Wilson, who had confessed to the murder of two Chicago police officers. Wilson said he had been physically coerced into confessing. He maintained that he had been cuffed to a hot radiator and that “electrical shocks had been administered to his gums, lips, and genitals.” A doctor who examined him found “multiple bruises, swellings, and abrasions” and several “linear blisters.”
Indications continued to grow that torture on the part of Chicago’s police department was a common practice. In a civil rights case that followed, a jury found that the City of Chicago has a de facto policy allowing police to physically abuse suspects in cases in which police officers were killed or injured. In 1991, the year before Patterson lost his appeal, the Chicago Police Department’s Office of Professional Standards had suspended Burge and two of his assistants following allegations of torture. The month after Patterson lost his appeal, US District Court Judge Milton I. Shadur ordered the release of a secret Chicago Police Department internal report, prepared in1990 by the Office of Professional Standards (OPS) cataloging more than fifty instances of “methodical” and “systematic” torture involving Burge’s unit. Specific officers were named in thirty-five of the cases; Burge was personally named in more than half of them. A month later, the Chicago Police Board forced Burge to retire.
At around the same time, Patterson finally caught a break. G. Flint Taylor Jr., an attorney who six years earlier had helped prove that torture had been used in the Wilson case, stepped in and offered to represent Patterson. Marva Hall, whose identification of Patterson was the only evidence other than his confession to implicate him in the crime, had signed an affidavit saying that she had initially fabricated her testimony to protect her cousin. She also said she had tried to recant before testifying but decided against it when Assistant State’s Attorney Jack Hynes threatened her with jail if she did.
Taylor filed a petition for post-conviction relief, asking Judge John E. Morrissey for an evidentiary hearing on Patterson’s torture allegations growing out of the OPS report. Morrissey denied the petition, saying, “any nexus between Area 2 Chicago Police Department headquarters’ alleged systemic torture of people and Aaron Patterson is highly tenuous at best.” Taylor appealed, and in 2000 the Illinois Supreme Court concluded that “substantial new evidence supports defendant’s claim that his confession was the result of police brutality” and ordered Morrissey to hold the hearing. However, months passed without a hearing being scheduled. At that point, a group of attorneys led by Locke E. Bowman of the Macarthur Justice Center at the University of Chicago Law School entered the case and demanded the appointment of a special prosecutor to investigate the allegations of torture. In April 2002, Presiding Judge Paul E. Biebel, of the Criminal Division of the Cook County Circuit Court, granted the request. In the meantime, Taylor had filed a petition with the Illinois Prisoner Review Board requesting a pardon for Patterson based on innocence. On January 10, 2003, Governor Ryan granted the request, touching off the clearing of Chicago’s death row and the abolition of capital punishment in the state of Illinois.
In 2006, Cook County special prosecutors Edward Egan and Robert Boyle released the results of an independent investigation into the torture allegations against Burge. They found that Burge approved the torture of criminal suspects for two decades using methods such as electric shock, radiator burns, guns to mouth, and bags pulled over the head. In 2010, Burge was convicted of perjury and obstruction of justice for denying he had engaged in misconduct even though, according to the judge, there was a “mountain of evidence” indicating he had. Patterson and the three other Death Row 10 inmates who were freed settled their separate law suits against the city, agreeing to share a $19.8 million payout. But it was not all good news for Patterson. By the time the settlement had been reached, he had returned to prison on a federal gun and drug conviction.
Madison Hobley
Illinois
At about two in the morning on January 6, 1987, Madison Hobley was awakened by the smoke alarm in his apartment on East 82nd Street in Chicago. When he opened the door he saw a hall full of smoke. He told his wife, Anita, to get their fifteen-month-old son, Philip, and flee the apartment, but they never made it out. Hobley, shoeless and wearing only his underwear, got out safely. He went to his mother’s home, about one mile from the scene. His wife and son perished, along with five other residents of the building.
Early the following morning, two detectives, Robert Dwyer and James Lotito, appeared at his mother’s apartment. They told Hobley that the fire had been caused by arson and that they wanted to ask him some questions. Perhaps, they suggested, he might be able to help them identify the arsonists. According to police, Hobley was ready to cooperate and went with them to local police headquarters. Hobley later claimed he was given no choice about accompanying the detectives. At that point, their stories diverged markedly and events started to quickly move beyond Hobley’s control.
The police said that following brief questioning at the Area 2 station, Hobley voluntarily went downtown with them to central police headquarters where he confessed to setting the fatal fire. Hobley’s version of events was far different. After being taken downtown, he said, he was handcuffed to a chair and kicked by Sergeant Patrick Garrity; then Dwyer, Lotito, and Detective Daniel McWeeney placed a plastic typewriter cover over his head and suffocated him until he blacked out. He said he never confessed.
The case against Hobley was, at best, fragile. Most critically, there was no evidence of a confession. Dwyer said he took notes as Hobley admitted his guilt but inadvertently spilled something on the pages and threw them away when the ink ran. At trial, no tangible evidence of a confession, neither written nor recorded, was submitted. The police testified that Hobley told them that on the night of the fire he took a can to a nearby filling station, bought a dollar’s worth of gasoline, and emptied the can in the hallway outside his third-floor apartment and down the stairwell. Then he set a match to the gasoline and tossed the can down in the second-floor hallway.
The gasoline can being the only physical evidence linking Hobley to the crime, the prosecutors produced two witnesses who testified that they saw Hobley buying the gasoline. Andre Council, a customer at the station, testified that he was pumping gas when he saw a man make the purchase. About an hour later, he went to the fire scene, about half a mile from the station, where he saw the man who had purchased the gas. The next day, he saw a photo of Hobley on television, recognized him as the same man, and called the police. The station attendant, Kenneth Stewart, testified that a man had bought a gallon of gas at his station, but failed to identify Hobley in a police lineup. Coaxed by police to choose someone, Stewart selected Hobley as the most likely but said he was uncertain.
With no tangible evidence and only a tenuous identification to support their case, the prosecution produced a two-gallon gas can that another detective, John Paladino, said he found at the fire scene. But even that turned out to be problematic. Detective Virgil Mikus, who testified as an arson expert, told the jury that a burn pattern on the floor in front of the Hobley apartment indicated that gasoline had been poured there, but tests had shown no traces of gasoline in the area. He surmised that it must have been washed away by firefighters when they extinguished the blaze. Critically, Hobley’s fingerprints were not found on the can, but that bit of information was withheld by the prosecution until some years later.
The jury found Hobley guilty and found no mitigating circumstances that would preclude the death penalty, which the judge imposed. Four years later, in 1994, the Illinois Supreme Court upheld the conviction and the sentence. The following year, Hobley’s appellate attorneys—Professor Andrea Lyon, of the DePaul University College of Law, and Kurt H. Feuer—filed a petition for post-conviction relief in the Circuit Court alleging that the authorities had illegally withheld a forensic report stating that Hobley’s fingerprints were not found on the gasoline can. The existence of such a report had been denied by police witnesses during the trial. The defense team also charged that other reports, one of which claimed that police had destroyed a second gasoline can found at the scene, had been suppressed. In total, the reports suggested that the can introduced into evidence had been planted there and that the fire had been set by someone other than Hobley. All the same, Circuit Court Judge Dennis J. Porter denied the petition without a hearing. In 1998, however, the Illinois Supreme Court reversed Porter and remanded the case for an evidentiary hearing. The court stated: “At defendant’s trial, the defense theory was that another person had started the fire. The negative fingerprint report and the existence of a second gasoline can found at the fire scene certainly would have offered concrete evidentiary support to that defense theory.”
The hearing sputtered along for more than two years. Bits and pieces of new evidence, most of it marginal, were introduced. The only defense chip of real consequence was the claim that the gasoline can introduced at trial had been planted at the scene. That case was made by an arson expert retained by the defense, Russell Ogel, of Packer Engineering. Ogel testified that the can showed no signs of exposure to the extreme heat that had destroyed other items in the area. Even the plastic cap was unharmed. Ogel also challenged the prosecution’s contention that there were burn patterns on the third floor of the building. In fact, Ogel said, tests indicated the fire had started in a stairwell on a lower floor. Judge Porter was unmoved. “There is no showing,” he said, “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” He denied Hobley a new trial.
Lyon and Feuer appealed and filed a petition with the Illinois Prisoner Review Board seeking a full pardon based on innocence. The board heard Hobley’s petition in October 2002. Three months later, Governor Ryan granted the pardon. “Madison Hobley was convicted on the basis of flawed evidence,” he said. “He was convicted because the jury did not have the benefit of all existing evidence, which would have served to exonerate him.”
Hobley had spent thirteen years on death row.
Leroy Orange
Illinois
Leroy Orange didn’t stand a chance. He was initially implicated in the murder of four people by his half brother, Leonard Kidd, and then virtually led to death row by his attorney, Earl Washington. In between, he was subjected to the same treatment as the other members of the Death Row 10, his confession physically extorted by Jon Burge and his crew by means of beating, suffocation, and electroshock. The crime he was convicted of was the murder of four people—two women, a man, and a child whose bodies were found in an apartment on Chicago’s South Side. They had been bound and stabbed, and two fires had been set in the apartment.
Orange was convicted primarily on the basis of his confession. The only corroboration was a statement by Kidd which said Orange was responsible for the murders. Kidd recanted his statement prior to the trial, saying it was made following a torture session similar to the one accorded Orange. He also testified as a defense witness at Orange’s trial and, against the advice of counsel, admitted that he himself was guilty of the murders.
Orange and Kidd had been arrested on January 12, 1984, the day after the bodies of Renee Coleman, Michelle Jointer, Ricardo Pedro, and Coleman’s ten-year-old son, Tony, were found bound and stabbed. Kidd initially told police that he and Orange had been in Coleman’s apartment in the early hours of January 11 and that Orange and Pedro had gotten into a heated argument. Fearing the argument might turn violent, Kidd said he left the apartment and waited outside. He said he saw “two dudes” armed with knives enter the apartment and later saw them leave, one wearing a jacket drenched in blood. Soon after Kidd made his statement, Orange confessed. The police then brought the two men face to face, and Kidd changed his story. He said he had lied about seeing the two other men and that Orange had killed the victims. He led police to garbage cans where they found two knives used in the crimes. Both men were indicted by a Cook County grand jury and remanded to jail. Orange continued to proclaim his innocence. He told his cellmate, a physician who examined him, relatives and friends who visited him, the public defender assigned to the case, and the judge before whom he was arraigned that he had been tortured and forced to confess.
Both Orange and Kidd were qualified to be represented by the public defender’s office, but their family chose to retain private counsel. It was a mistake. They retained Earl Washington to represent both defendants despite an obvious conflict of interest. Three months later, Washington withdrew from the Kidd case and, to all appearances, he might just as well have withdrawn from Orange’s case. He filed a motion to suppress his client’s confession, but it was denied as being inadequate. Give the opportunity to file a more detailed motion, he failed to do so.
At the 1985 trial, Orange testified that he had been with the victims earlier that night, but had left at around 2:30 a.m., when all were alive. Kidd then testified on Orange’s behalf and said he had committed the murders after Orange had left the apartment. The only evidence remaining against Orange was his confession. To no one’s surprise, the police officers denied torturing either suspect. A jail physician testified that she had discovered no signs of torture. The jury found Orange guilty. Washington stipulated to his client’s eligibility for the death penalty. Asked to offer any evidence in mitigation, Washington said there was none. The judge sentenced Orange to death.
At this point, Thomas F. Geraghty, director of the Bluhm Legal Clinic of Northwestern University Law School, along with clinic students, entered the case. They filed a petition for a new sentencing hearing. The hearing was pending when Governor Ryan granted Orange a full pardon based on innocence, criticizing prosecutors and the judiciary for relying on “procedural technicalities at the exclusion of the quest for truth” throughout the case. As for Kidd, he spent much of the next eighteen years on a rollercoaster ride through the judicial system. His death sentence was overturned and then reaffirmed. He remained on death row until Ryan commuted his sentence in 2003 to life in prison without the possibility of parole.
Stanley Howard
Illinois
Like Leroy Orange, Stanley Howard had to wait until Ryan cleared death row in 2003 before being exonerated. He served more than eighteen years for the 1984 murder of Oliver Ridgell, who was shot to death while sitting in his car on the South Side of Chicago. Also, like Orange, Howard’s conviction was based on a confession extracted in like manner and a faulty eyewitness identification. The identification was provided by Tecora Mullen, who was seated alongside Ridgell at the time of the crime and with whom she was believed to be having an affair. Howard was not arrested until six months later when he was picked up on an unrelated charge, the armed robbery of two Chicago police officers two years earlier. He was not suspected of the Ridgell murder until two days after his arrest, when police noted he fit the description provided by Mullen.
Howard was first tried and convicted on the armed robbery charge and sentenced to twenty-eight years in prison. At his murder trial, the judge denied Howard’s motion to suppress his confession which, Howard contended, had been beaten out of him. Aside from the confession, the only evidence the prosecution had was Tecora Mullen’s identification, which was clearly suspect as it might have been fabricated to protect her husband. The jury returned a verdict of guilty and Howard was sentenced to death.
While on death row, Howard helped organize the Death Row 10.
Although pardoned on the murder charge, he remained convicted in the armed robbery case and faces imprisonment until 2023.
Glenn Ford
Louisiana
“My sons, when I left, was babies. Now they’re grown men with babies … I’ve been locked up almost thirty years for something I didn’t do.”
Glenn Ford, one of the longest-serving death row inmates in modern American history, spent three decades in the maximum-security prison at Angola, Louisiana, before being exonerated in 2014 at the age of sixty-four. According to the Capital Post Conviction Project of Louisiana, new information corroborated what Ford had said from the beginning: he was not present or involved in the November 5, 1983 slaying of Isadore Rozeman.
Rozeman, a fifty-six-year-old jeweler and watchmaker, was found shot to death behind the counter of his shop in Shreveport, Louisiana. He appeared to be the victim of a robbery. Ford, who did yard work for Rozeman, was among the first to be questioned. Thirty-four years old at the time, married and the father of two sons, Ford said he had been in the vicinity of the store earlier in the day and several witnesses told police they saw him there.
Events started closing in on Ford a few months later, in February, when some items from Rozeman’s store turned up in a pawnshop and a handwriting analyst said it was Ford’s signature on the pawn slips. More critically, a woman by the name of Marvella Brown came forth and told police her boyfriend, Jake Robinson, along with Jake’s brother, Henry, and Ford were at her house when Ford asked the other two men if they were going with him. They left together, she said, and Ford was carrying a brown paper bag. When they returned later that day, Ford was carrying a different bag which contained some watches and rings. He had a gun in his waistband. Jake also was carrying a gun. Later that month, Ford, Jake and Henry Robinson, and a fourth man, George Starks, were arrested and charged with capital murder and conspiracy to commit armed robbery.
From that point on, what had been a bad dream for Ford morphed into a nightmare. He was the first of the four to be tried. The case against him was virtually non-existent. No murder weapon was ever found. There were no eyewitnesses to the crime. Glenn Ford was about to fall victim to the charade that often passed for justice in the South, particularly when it was a black man who was on trial. Prosecutors used their jury challenges to eliminate any black candidates and an all-white jury was empanelled. Ford was represented by two court-appointed defense attorneys. His lead attorney had never tried a case before a jury. His assistant, two years out of law school, worked at an insurance firm and had never been involved in a criminal case of any kind. They failed to hire any expert witnesses because they believed, incorrectly, that they would have to pay their expenses themselves. A state expert who testified about the victim’s time of death had never examined the body. One of the prosecution witnesses testified at trial that police had helped her make up her story.
As weak as the state’s case was, the testimony of its witnesses seemed to compound its frailty. Under cross-examination, Marvella Brown, the state’s key witness, said detectives had led her to shape her responses. Brown told the court she had been shot in the head some years ago, that the bullet had never been removed, and that she had difficulty thinking and hearing. A gunshot residue expert said Ford had voluntarily come in for questioning and he found gunshot residue on his hands. A fingerprint analyst said he lifted a single print from a paper bag found at the scene and the print contained a “whorl” pattern consistent with a Ford print, while prints from the Robinson brothers showed no such pattern. Dr. George McCormick, the parish coroner who failed to examine the corpse, testified that the position of Rozeman’s body and a duffel bag with a bullet hole in it found next to the body led him to conclude that the victim was shot by someone who held the gun in his left hand; Ford was left-handed, the Robinson brothers were not. Testifying on his own behalf, Ford denied any involvement in the crime. He admitted selling some items of jewelry to the pawnbroker but said he had gotten them from the Robinson brothers.
The prosecution’s case was good enough for the jury. Ford was convicted of capital murder and conspiracy to commit armed robbery on December 5, 1984 and, on the jury’s recommendation, he was sentenced to death. The prosecution dismissed the charges against the Robinson brothers and Starks. A round of appeals by Ford was unsuccessful until 2000 when the Louisiana Supreme Court ordered a hearing on a post-conviction petition for a new trial filed by the Capital Post-Conviction Project of Louisiana. The hearing was not held until 2004, but Ford’s new attorneys, Gary Clements and Aaron Novod, were well-prepared. An array of defense witnesses contested virtually every piece of evidence presented at trial.
An expert testified that the coroner’s reconstruction of the crime was based entirely on speculation and bore no connection to the facts. Another defense expert noted that the gunshot residue was irrelevant because it was gathered more than a day after the crime and could easily have been picked up elsewhere, including the police station when Ford was arrested. Yet another said that the prosecution’s fingerprint expert misidentified the print on the paper bag and that it could well have belonged to one of the Robinson brothers. Ford’s trial lawyers also testified and were of more help to him than they were at his trial. They testified that between them they had little or no experience in criminal cases. The more experienced of the two, who specialized in oil and gas law, had never tried a case before a jury. His criminal work was limited to handling two guilty pleas. His associate had spent his two years since graduating from law school dealing with personal injury cases. Both acknowledged that they knew nothing about the funding of expert witnesses and did not know how to issue a subpoena. Members of Ford’s family, who lived in California, were not brought to testify on his behalf at either the guilt or punishment phase of the trial because the attorneys were unaware that the state would pay their travel expenses.
In addition to the expert testimony, the defense produced a number of reports that had been withheld at trial which would have served Ford’s interest. The reports showed that Shreveport police had received two tips from informants indicating that only the Robinson brothers were involved in the crime. Other reports suggested that some detectives had falsely testified at trial about statements made by Ford during his interrogation. Still others contained conflicting statements by Marvella Brown and by witnesses who said they had seen Ford near the store at the time of the crime. Despite the exculpatory evidence presented at the hearing, the post-conviction motion was denied.
Eight years later, in 2012, the Capital Post-Conviction Project filed a federal petition for a writ of habeas corpus. While the petition was pending, the district attorney’s office initiated a new investigation. It discovered that a confidential informant for the sheriff’s office had told authorities that Jake Robinson had admitted shooting Rozeman. In March 2014, the prosecution filed a motion to vacate Ford’s conviction on the basis of the new evidence provided by the informant. A judge complied, the prosecution dismissed the charges, and Ford was freed. Under Louisiana law, he received $330,000 in compensation, an average of $11,000 a year, for serving thirty years in prison.
A year short of retirement age on his release, Ford was asked by a reporter if he harbored any resentment. “Yeah,” he said, “because I was locked up almost thirty years for something I didn’t do. Thirty years of my life, if not all of it; I can’t go back and do nothing I should have been doing when I was thirty-five, thirty-eight, forty, stuff like that.” He also said, “My mind’s going all kinds of directions, but it feels good.”
Ford was the 144th death row prisoner to be exonerated since 1973 when a de facto moratorium on capital punishment went into effect. His case was among those featured on CNN’s series Death Row Stories in 2014.
Ford died of lung cancer on June 29, 2015. His death led to an examination of Louisiana’s criminal justice system and, on a broader scale, an initiative calling for the abolition of the death penalty.
Joe D’Ambrosio
Ohio
The case of Joe D’Ambrosio was another of CNN’s Death Row Stories. D’Ambrosio, an Army veteran, spent twenty years on Ohio’s death row for the 1988 murder of nineteen-year-old Tony Klann, whose body was found in a Cleveland Creek. He had been stabbed to death. D’Ambrosio was convicted largely on the testimony of another suspect in the case, Ed Espinoza, who also implicated a third man, Michael Keenan. Keenan was given a twelve-year-sentence; D’Ambrosio was sent to death row. The three men were involved in a sordid series of events involving a mutual acquaintance by the name of Paul “Stoney” Lewis who they said had stolen drugs from them. Believing Klann could help them find Lewis, the trio forced him into their truck and drove around the neighborhood in search of their quarry. When they failed to locate him, Espinoza said, Keenan slashed Klann’s throat and then D’Ambrosio stabbed him to death in a creek in Cleveland. D’Ambrosio was convicted and sentenced to death by a three-judge panel.
The appeal process ground through the judicial system to no avail. It was D’Ambrosio’s good fortune that his case came to the attention of a Roman Catholic priest by the name of Neil Kookoothe. Kookoothe was a man of many disciplines, all of which were brought to bear on D’Ambrosio’s behalf. He had graduated with a communications degree in the early 1980s. He then went to nursing school and worked as a licensed nurse at a hospital intensive care unit in Toledo. While working at the hospital, he put himself through law school and later worked as an attorney in Indiana. From the beginning, however, Kookoothe had been attracted to the priesthood, and after practicing nursing and law he went to seminary school and settled in as a man of the cloth. In his capacity as a cleric, he counseled a man on death row and served as a witness to his execution. As described by CNN, Kookoothe watched “the man’s face turn beet red as lethal fluid ran through his veins. Beads of sweat glistened on his forehead. Strapped to a table, his chest and stomach heaved three or four times.” Then, he was gone. “It’s surreal when you know that the state is killing him,” Kookoothe said. Having watched several other executions, he became a student of “state-sanctioned death” and an opponent of the death penalty.
It was his medical training that first drew him into D’Ambrosio’s case. He noted that Klann’s knife wounds were inconsistent with Espinoza’s story. He understood, too, that Klann could not have screamed after his throat was cut, as Espinoza had testified. “If this is wrong, what else might be wrong?” he wondered. Kookoothe interested a local newspaper reporter, Martin Kuz, in the case. Klann’s father told Kuz that shortly before his son’s death, he had been subpoenaed as a witness in a rape case. Now, Kookoothe put his legal training to work. He searched the case files and learned that the suspect in the rape case, for which Klann had been summoned to testify, was Paul “Stoney” Lewis, the man Espinoza said they were looking for on the night of the murder. Klann apparently had been a witness to the rape.
Further investigation by Kookoothe found that D’Ambrosio had no motive to kill Klann and there was nothing connecting him to the murder. In 2006, a US Appeals Court judge ruled that prosecutors had “failed to disclose that Lewis was being investigated, and had earlier been indicted, for a rape to which Klann was a witness.” The evidence the state withheld, the court wrote, “would have … increased a reasonable juror’s doubt of D’Ambrosio’s guilt.” The judge overturned his conviction.
The prosecution attempted to retry the case, but the same Federal District Court that threw out his conviction barred the state from retrying him because the prosecutors’ misconduct had biased D’Ambrosio’s chances for a fair trial. District Court Judge Kathleen O’Malley wrote: “For 20 years, the State held D’Ambrosio on death row, despite withholding evidence that would have substantially increased a reasonable juror’s doubt of D’Ambrosio’s guilt. Despite being ordered to do so by this Court … the State still failed to turn over all relevant and material evidence relating to the crime of which D’Ambrosio was convicted. Then, once it was ordered to provide D’Ambrosio a constitutional trial or release him within 180 days, the State did neither. During those 180 days, the State engaged in substantial inequitable conduct, wrongfully retaining and then delaying the production of yet more potentially exculpatory evidence … To fail to bar retrial in such extraordinary circumstances sure would fail to serve the interests of justice.”
The case finally was brought to conclusion on January 23, 2012, when the US Supreme Court declined to hear an appeal by the state of Ohio. Even before the Supreme Court ruling, the D’Ambrosio case had far reaching consequences. It initiated calls for Ohio to adopt “open-discovery laws” to force prosecutors to share more of its findings with defense attorneys. New legislation went into effect in 2010.
Nathson Fields
Illinois
When it comes to official misconduct, few cases can match the conviction of Nathson Fields, a member of a Chicago street gang, who served almost twenty years in prison, more than half of it on death row, for the shooting death of two rival gang members. The judge in the case was convicted of taking a bribe; the two eyewitnesses who identified Fields were members of the same gang as the victims; his co-defendant testified against him in exchange for a lighter sentence; two key trial witnesses said they had been coerced into testifying by police and prosecutors; and a police officer was found to have tampered with the evidence.
The killings took place in April 1984. Talman Hickman and Jerome Smith, members of the Black Gangster Disciples street gang, were shot dead on the streets of Chicago. No arrests were made for more than a year. In June 1985, Fields, a thirty-one-year-old member of the rival El Rukn gang, was arrested after being identified in a police lineup although he bore little resemblance to the description police had been given of the shooter. Fields was wearing a short-sleeve shirt, and an El Rukn tattoo was prominently displayed on his forearm. The police were unaware at the time that the two men who picked him from the lineup belonged to the Black Gangster Disciples.
Fields was charged with first-degree murder, along with a fellow El Rukn gang member, Earl Hawkins. Both men were convicted in a 1986 bench trial and sentenced to death by Judge Thomas Maloney. A year later, Hawkins received a reduced sentence and was freed from death row when he agreed to testify against other gang members in unrelated cases. Fields, who negotiated no deal, remained on death row and, in 1990, the Illinois Supreme Court upheld his conviction and sentence.
Then, in an incredible turn of events, both Fields’s conviction and sentence were called to question when Judge Maloney was convicted of taking bribes following a federal judicial corruption investigation. Among other things, Maloney was charged with accepting $10,000 from Hawkins’s lawyer, William Swano, to acquit his client of murdering Smith and Hickman. According to FBI evidence, Maloney, having learned of the investigation during the trial, returned the money to Swano and convicted Hawkins along with Fields.
Given Maloney’s conviction, Cook County Circuit Court Judge Vincent Gaughan ordered a new trial for Fields in 1996. While the trial was pending, two witnesses who had testified against Fields recanted. Gerald Morris and Randy Langston, who stated they had seen Fields and Hawkins gun down the two victims outside a public housing project, signed affidavits saying their testimony had been coerced by police and prosecutors. They now said they had witnessed the shooting but could not identify the killers because both men wore masks.
Continued appeals by the prosecution delayed the retrial for another six years. Fields remained in custody until he was released on bond in 2003 while awaiting the new trial. When it finally took place, Hawkins testified against Fields in exchange for a plea to a lesser charge and a lighter sentence. However, his testimony did not serve him well. Under cross-examination by Fields’s attorney, Jean Maclean Snyder, Hawkins admitted that he had been involved in at least fifteen homicides during his years as an El Rukn member. As a result, Judge Gaughan found his testimony unworthy of belief. He said: “If someone has such disregard for human life, what regard will he have for his oath? I find him incredible.”
Fields was given a Certificate of Innocence in 2009. He had served eighteen years in prison, eleven of them on death row. Fields filed a federal lawsuit against the City of Chicago for wrongful conviction. Years after he was cleared, a police file connected to his case, which was said to be missing, was discovered in an old filing cabinet in the basement of a South Side police station. Police and prosecutors had denied the file existed, but Fields’s lawyers claimed it was deliberately hidden because it contained evidence that might have cleared Fields sooner. The newly discovered file was in a file cabinet with unsolved cases dating back to 1944. In April 2014, the jury rejected Fields’s claim that he was framed as a result of policies and practices of the Chicago police. Charges against the City, two policemen, and a prosecutor were denied, but the jury found that one cop, David O’Callaghan, had violated Fields’s right to due process by withholding or fabricating evidence. Trial testimony suggested that police had backdated statements and may have manipulated lineups in an effort to convict Fields. In the end, Fields was awarded $199,150 by the Illinois Appellate Court.
Judge Maloney, who was sentenced to fifteen years for fixing three murder trials, served more than twelve years. A few months after his release in 2008, he died at the age of eighty-three.
Harold Wilson
Pennsylvania
For Harold Wilson, the third time was the charm. After a trial in which he was convicted of three first-degree murders and sentenced to death; after a second which ended in a mistrial; he was finally acquitted and set free. But by that time he had spent more than sixteen years in prison, most of the time on death row.
Wilson, thirty years old, was accused of committing three grisly murders on April 10, 1988. The three victims—sixty-four-year-old Dorothy Sewell; her thirty-three-year-old nephew, Tyrone Mason; and Mason’s forty-year-old girlfriend Cynthia Goines—had been hacked to death with a carpenter’s ax and stabbed with an ice pick in Sewell’s Philadelphia home. Wilson, who had been staying with Sewell the previous few days, was arrested the day after the bodies were discovered when he was found to have cuts on his hands and an envelope stuffed with cash that was believed to be drug-related. Although he admitted using drugs, Wilson denied any connection to the killings. There was little evidence linking him to the crimes. At his 1989 trial, police testified that they had found a jacket spattered with the victims’ blood in the basement of Wilson’s home. Wilson testified that he had found the victims’ bodies while he was high on drugs and that he had gotten the blood on his jacket while trying to remove an ice pick from Mason’s chest. He was given three death sentences, one for each of the murders.
Wilson’s salvation, delayed though it was, came by way of the back alleys of Philadelphia politics. He had been prosecuted by Philadelphia District Attorney Jack McMahon, a circumstance that would grease the skids to his being freed from death row. In 1997, eight years after Wilson’s conviction, the courts began an examination of Philadelphia’s jury-selection process. The investigation was prompted when Lynne Abraham, who was running against McMahon in a tight re-election campaign, released a training video to the media showing McMahon instructing new prosecutors to keep poor blacks off juries because they were less likely to convict. An excerpt from the video was broadcast by investigative journalist Amy Goodman on Democracy Now!, a non-profit, syndicated news hour that airs simultaneously on satellite and cable television, radio, and the Internet. The videotape, which was played during an interview with Harold Wilson, shows McMahon instructing his colleagues on the proper selection of a jury:
“[Inaudible] to get a competent, fair and impartial jury. Well, that’s ridiculous. You are there to win, and in order to win—and the defense is there to win, too—and the only way you’re going to do your best is to get jurors that are as unfair and more likely to convict than anybody else in that room. Let’s face it again. There’s the blacks from the low-income areas are less likely to convict … There’s a resentment for law enforcement, there’s a resentment for authority, and as a result, you don’t want those people on your jury, and it may appear as if you’re being a racist or whatnot, but again, you are just being realistic, you’re just trying to win the case.”
While the actions of the prosecuting attorney might have precipitated a deeper examination of Wilson’s conviction, it was the inaction of his own attorney, Willis Berry, that freed Wilson from death row. In 1999, Wilson’s death sentence was set aside on the grounds of ineffective counsel when a trial-level court determined that his attorney had failed to investigate and present mitigating evidence during the penalty phase of his original trial. Although his death sentence was overturned, Wilson’s convictions on the murder charges were not, and he remained on death row.
In 2003, Wilson was granted a new trial when a judge found that McMahon had exercised his peremptory challenges in a discriminatory manner to keep blacks from serving on the jury. The new trial ended in a mistrial; the third trial began on October 31, 2005. It lasted less than a month. Now armed for the first time with DNA evidence, the defense showed that the blood on the jacket was that of the victims and an unidentified male. Wilson’s DNA was nowhere to be found. Since the blood on the jacket was the only evidence linking Wilson to the murders, the jurors wasted little time in returning a verdict of not guilty.
Wilson described his feelings on hearing the verdict to Amy Goodman:
“Yeah, I’m standing, my two defense attorneys are standing, the district attorney is standing. And the floor person reads the verdict, and I believe the court crier says, ‘On the charge of first-degree murder … how do you find the defendant? Say you are not guilty or guilty?’ They said, ‘Not guilty.’ They say, ‘On the second count of first-degree murder, say how do you—say how do you find the defendant, guilty or not guilty?’ They said, ‘Not guilty.’ And I never heard anything else. My attorneys just asked the court could I be seated because I broke down. And I was seated. The next time I remember I was being escorted out of the courtroom into a holding cell. And the verdict was not guilty, three counts of first-degree murder, and not guilty of possession of an instrument of crime. So, my prayers were answered, my family’s prayers, my mother’s, my sister’s, my brother’s prayers were answered.”
When Wilson was sent to prison, his son was two years old. When he was released, his son was a member of the Marine Corps, having served a tour of duty in Iraq. His daughter, a year younger, was a prison guard in Arizona. Wilson, now a middle-aged man, left prison with sixty-five cents and a token in his pocket. “Where does that leave you today?” Amy Goodman asked him.
“That leaves me as an exonerated former death-row prisoner. That leaves me to fend for myself, to survive at a level higher than a homeless person, because at this time I don’t know where my next meal coming from, other than the support of family. I don’t have any financial income. I don’t have any work. It wasn’t like I was being released and placed in a halfway house. It’s not like being told that you have to report to a parole officer in seventy-two hours or you will be re-arrested. It’s like, you know, after eighteen years of dealing with the injustice system, all the abuse—the physical, mental abuse—I’m placed back in society with nothing, just the shelter of my family.”
When Wilson was freed, Willis Berry, the attorney whose ineffective counsel sent him to prison, was serving as a judge.
Gordon “Randy” Steidl
Illinois
“I’m laying this cross down today. I’m not carrying it anymore.” Those were the words of Gordon “Randy” Steidl when he left Danville Correctional Center in Danville, Illinois, in the spring of 2004. The cross he bore was of no slight dimension. Steidl, now fifty-two years old, had spent seventeen years behind bars, including a dozen on death row, for a crime he did not commit. The crime was the brutal murder of a couple of newlyweds, Karen and Dyke Rhoads, whose bodies were found in their bedroom in downtown Paris, Illinois, in July of 1986. They had been stabbed to death and their house had been set afire following the attack, presumably to destroy any evidence. Steidl’s conviction was based on the erratic testimony of two alcoholics and a jailhouse snitch, and sealed by shoddy police work and the ineffective counsel of his attorney.
The police had no viable leads in the case for two months. That changed in September when a local alcoholic and petty criminal, Darrell Herrington, came forth and told them that he had accompanied Steidl and a man by the name of Herbert Whitlock when they went to the Rhoads’s home that July morning. Herrington said he heard the various parties arguing, and later saw a knife, blood, and the bodies of the victims. The police did not take Herrington’s story seriously and for good reason. He admitted he was stone drunk when the crimes occurred and he removed all doubt when he failed a lie detector test.
Five months later, in February 1987, police heard a more credible story from Deborah Rienbolt, a certified nurse’s aide, who told them that on the night before the murders she had seen Whitlock, whom she knew, in a bar arguing with Dyke Rhoads about backing out of a deal they had made. She also said that later that night, in another bar, she saw Whitlock with a knife she had previously loaned him and which he returned the day after the murders. More tellingly, she said she heard him say he was going to “take care of a few people [who] knew too much” and mentioned the name of Karen Rhoads. Rienbolt further said that later that night, at yet another bar, she met Whitlock and Steidl and went with them to the Rhoads house where she witnessed the killings. She added that she had seen one of the killers beat one of the victims with a broken lamp.
Given Rienbolt’s statements, which in some respects, corroborated those of Herrington, the police felt they had enough of a case to charge the two suspects. Three weeks after their arrest, both Steidl and Whitlock were indicted by a grand jury for the murder of both victims. The two men were tried separately. Both testified that they had nothing to do with the murders. They admitted that they had been to several bars looking for women, but they said they had not seen either Rienbolt or Herrington. The women they were with confirmed their accounts of the night’s events. Aside from the testimony of Rienbolt and Herrington, the jury heard from a jailhouse snitch, Ferlin Wells, who said Steidl had told him about the murders and said that if he thought Herrington would go to the police, “he would have definitely taken care of him.” The testimony of Herrington, Rienbolt, and Wells was the heart of the prosecution’s case. The only bit of forensic evidence was the broken lamp which was found at the scene of the crime.
As weak as the state’s case was, the defense offered virtually nothing in Steidl’s behalf. His attorney failed to call a number of witnesses whose testimony almost certainly would have buttressed his case and Whitlock’s as well: a supervisor who would have said that Rienbolt was at work on the night in question, not out carousing in bars; a friend of Rienbolt’s who also would have contradicted her account of where he was that night; and a forensic pathologist who would have told the jury that the knife Rienbolt said she had given Whitlock could not have been the murder weapon because the blade was too short. Steidl was convicted of both murders and sentenced to death. Whitlock was convicted of killing Karen Rhoads but acquitted of Dyke’s murder. He was sentenced to life in prison.
After a series of state appeals were denied, Steidl’s case began to take on the feel of a carnival atmosphere. Herrington and Rienbolt both recanted their testimony. In November 1988, Herrington testified under oath before a court reporter that his testimony was not completely true. Police, he said, had encouraged him to change critical parts of his story. Two months later, Rienbolt came forward and confessed that her story also had been fabricated. But within two weeks, both recanted their recantations and signed affidavits that their original stories were true. Fortunately for Steidl, help was on the way.
A new attorney, Michael Metnick, and his investigator, began reviewing his case. Rienbolt contacted them in 1996 and said she was ready to offer yet another version of the crime, this time, she assured them, the unvarnished truth. They videotaped her statement on February 17 and part of the video was shown on an episode of 48 Hours on CBS. Nonetheless, five days later she recanted all the statements she had made on network television.
But yet another group of investigators was now on the case. A team of students from Northwestern University’s Medill School of Journalism found several witnesses police had failed to interview. Complicating matters further, Lieutenant Michael Callahan of the Illinois State Police, had been assigned to reinvestigate the case, and he concluded that both Steidl and Whitlock were innocent. He also noted that the prosecutors had not considered other suspects. In addition, fire investigators determined that the broken lamp, the state’s only piece of hard evidence, had been intact during the crime and was broken by firefighters while attempting to extinguish the blaze.
On December 11, 1996, the Illinois Supreme Court denied Steidl’s appeal for a new trial but granted a new sentencing hearing on the ground that his attorney provided ineffective counsel at the sentencing phase of the trial. On February 18, 1999, Steidl was resentenced to life in prison when prosecutors declined to pursue the death penalty. Both he and Whitlock filed petitions for writs of habeas corpus. Whitlock’s request was denied, but on June 17, 2003, US District Court Judge Michael McCuskey ruled that in Steidl’s case “acquittal was reasonably probable if the jury had heard all of the evidence.” Declaring that Steidl’s trial attorney, S. John Muller, failed to purse exculpatory evidence, Judge McCuskey ordered the state to either retry Steidl or release him. The prosecution chose not to pursue the case and dismissed the charges against him on May 28, 2004. Whitlock remained behind bars for more than three additional years until the Illinois Appellate Court reversed his conviction, holding that exculpatory evidence had been withheld in his case as well. The charges against him were dropped in January 2008.
Upon his release, Steidl, now fifty-two years old, filed a federal civil lawsuit against several law enforcement agencies, arguing that his constitutional rights were violated in a seventeen-year conspiracy involving the Paris Police Department, the Illinois State Police, and the Edgar County State’s Attorney’s Office. Whitlock joined the suit later. The multiple defendants argued that the lawsuit should be thrown out; the judge for the federal Seventh Circuit Court of Appeals demurred. “If their claims are true,” the court’s opinion read, “a grave and nearly unbelievable miscarriage of justice occurred in Paris, Illinois. Two innocent men will have to deal with its consequences for the rest of their lives.”
In October 2011, the Illinois State Police portion of the suit was settled, with Steidl being awarded $2.5 million. On March 28, 2013, a federal judge entered a $3.5 million agreed-upon judgment against Paris police chief Gene Ray, former lead detective James Parrish, and former Edgar County State’s Attorney Michael McFatridge, making for a total award of $6 million. Commenting on the settlement, Flint Taylor, one of Steidl’s attorneys, said, “I think it affirms what the evidence has shown, which is that Steidl was innocent of the crime which he was convicted for and that he suffered terribly for being wrongfully convicted.”
Despite the settlement agreement, none of the defendants admitted any wrongdoing.
Seth Penalver
Florida
The crime was there for all to see, all three murders right there on the tape. Casmir Sucharski, one of the victims, had installed a video surveillance system in his Miramar, Florida home eight days earlier, and the tape told the tale. At 7:18 on the morning of June 26, 1994, two men, one wearing a shirt over his head and the other a cap and sunglasses, entered the house through a sliding door. There, they confronted Sucharski, forty-eight, the owner of Casey’s Nickelodeon, a restaurant in Pembroke Park; twenty-five-year-old Marie Rogers, and a friend of hers, Sharon Anderson, also twenty-five. Sucharski was beaten by the two intruders for more than twenty minutes. Then, the man with the shirt over his head shot all three victims in the head. The man with the sunglasses shot Anderson and Rogers in the back. Before the men left, the man wearing the shirt was seen uncovering his face.
Early the next morning, the mother of Marie Rogers reported her daughter missing. She told police that Rogers and Anderson had gone to Casey’s the previous evening. The police learned that the two women had left the restaurant with Sucharski shortly after midnight. When the officers arrived at Sucharski’s home, they found the three bodies.
The surveillance tapes were an unexpected gift. Still photographs were created from the tapes and circulated among police departments in South Florida. Three weeks later, the Metro-Dade police department notified Miramar detectives that they had arrested three men in a home invasion and that one of them resembled the man who had uncovered his face at the Sucharski home. The man was identified as twenty-two-year-old Pablo Ibar. Ibar told the Miramar police that he had spent the night of the murders with two friends, one of whom was named Jean Klimeczko. Klimeczko said that the man who uncovered his face was Pablo Ibar. He also told them that the man with the cap and sunglasses resembled a man he knew by the name of Seth Penalver. Police obtained a photo of the twenty-one-year-old Penalver and Klimeczko identified him as the second gunman. When Penalver learned that there was a warrant out for his arrest, he voluntarily turned himself in on August 5. He and Ibar were soon indicted and the two men went on trial in Broward County Circuit Court in June 1997.
The case against Penalver was clearly defined: Was he the man in the sunglasses seen on the grainy surveillance tape? The problem was no one seemed able to identify him with any degree of certainty. Melissa Munroe, a former girlfriend of Penalver’s, signed her name to his photograph but said that did not indicate she could identify him as the second gunman. The police, she said, had pressured her into signing the photo. Klimeczko said he was under the influence of alcohol and drugs when he made his earlier identification but now could not be certain. The police had also influenced him to sign, he said. Two facial reconstruction experts—one for the prosecution and one for the defense—both testified that the photo was of too poor a quality to make a definite identification. Such forensics as were found at the scene also were inconclusive. A bloody footprint did not match any of Penalver’s shoes. A shirt found outside the murder scene contained some human hair, but again, it bore no resemblance to either Ibar’s or Penalver’s hair. Dozens of fingerprints at the scene did not match either of the suspects’.
The only testimony that implicated Penalver at all came from a woman by the name of Kimberly San, and it was itself suspect. San, who had lived with Penalver not long before the crime, said that while she could not identify him from the video, she recognized him by the way he walked. She said that on the day after the murders she had gone to Penalver’s house to pick up some of her belongings; she saw the washing machine overflowing with pink bubbles, indicating that there were bloody clothes in the machine. San also admitted that she had offered her testimony in exchange for leniency for her new boyfriend, who was facing a charge of aggravated battery on a pregnant woman. Paul Manzella, the lead detective in the case, testified that no witnesses had been offered anything in exchange for their testimony. Finally, the prosecution presented evidence that when Penalver turned himself in he declined a police request to remove his shoes and that they had to be forcibly removed. Penalver allegedly responded, “I might as well be dead,” suggesting, police maintained, a consciousness of guilt. That was the sum of the prosecution’s case. After seven months at trial and twenty-seven hours of deliberation, the jury voted 10-2 for conviction, and on January 25, 1998, a mistrial was declared. But the prosecution was not yet done. The cases of Penalver and Ibar were severed and each was tried separately. Though no new evidence was introduced, both men were convicted and sentenced to death. For Penalver, however, the wheels of justice were still grinding.
In February 2006, six years after he was dispatched to death row, the Florida Supreme Court reversed his conviction and death sentence. In its decision, the court said its members had reviewed the videotape and concluded that it was “difficult to determine whether Penalver is the individual with the hat and sunglasses.” Because the tape was inconclusive and there was no physical evidence connecting Penalver to the murders, the testimony of the eyewitnesses was critical, the justices ruled; they also found it to be flawed. Penalver would be tried a third time but not before another six years passed.
This time, help was to come from an unexpected source. Ibar, still under a sentence of death, had retained a new attorney who appeared to be more diligent than his predecessor. He obtained evidence through public record act requests that had not been previously disclosed to Penalver’s trial lawyer. The records included raw notes of detectives’ interviews with witnesses indicating that they had identified Penalver only after police had applied pressure. At trial, they had denied making the identification at all. It was also revealed that Detective Manzella had authorized reward money to be paid to Klimeczko for identifying Penalver, although Manzella had testified that no reward money had been paid to any of the witnesses.
The trial lasted eight months. Beginning in the spring, the trial continued into December and concluded four days before Christmas. There were numerous delays for a variety of reasons, including the death of the defense attorney’s mother during jury selection, illnesses among jurors and the defendant, the death of the sheriff’s deputy who discovered the bodies of the victims, and a gas leak that shut the courthouse as deliberations were about to start. The case went to the jury on December 12. After five days of deliberation, the jury reported that it was deadlocked with two jurors set on conviction. In an unusual move, both sides agreed to replace those jurors with two alternates and deliberations resumed the following day. The change was possible because alternate jurors are not excused in cases involving the death penalty until there is an acquittal or the penalty phase is completed. As it turned out, the two alternates agreed with the ten-member majority and Penalver was acquitted.
As for Ibar, prosecutors maintained that he could be seen clearly on the video unmasking himself. He remained on death row.
Wesley Quick
Alabama
It went bad for Wesley Quick in a hurry and it soon got worse. He was only eighteen when he was arrested and charged with committing three burglaries in a rural section of Alabama. He had been implicated by his friend, Christopher Scarborough, who was arrested on November 3, 1995, for pawning several items stolen in a series of home break-ins. Scarborough, whose signature appeared at the bottom of several pawn shop sale receipts, pointed police in Quick’s direction. It was just the beginning of Quick’s troubles. Two days after his arrest, as he sat in his cell in the county jail, he was informed by officers that he was also being charged with two counts of capital murder for the shooting deaths of John Hughes and Nathan King.
On October 26, 1995, the bullet-riddled bodies of Hughes, eighteen, and King, twenty, were found outside a truck in the remote wilderness of Turkey Creek Falls. The 9mm semiautomatic pistol used in the shootings was said to be among the objects stolen by Scarborough and Quick. The murders were described by police as drug-fueled, satanic thrill killings. Quick admitted to using drugs and said he had read some of the satanic bible years earlier. Charged with Quick was his friend Shellie Kitchen. Both had been fingered by a mutual friend named Jason Beninati who told police they had bragged to him about committing the murders. Kitchen wasted no time in resolving her case. She pleaded guilty to conspiracy to commit murder and was sentenced to two years in prison.
Quick went to trial, more than once. His first trial, in September 1997, did not last long. A mistrial was declared when it was learned that several jurors had violated the judge’s orders not to discuss the case. At the second trial, four months later, Beninati was the chief witness for the prosecution. He testified that Quick and Kitchen had come to his house right after the shootings and Quick said he had killed two young men while Kitchen watched. He said Quick later took him to the crime scene, by then cordoned off by police, to prove he had done it. In his testimony, Quick admitted he had been at the creek but said he had been so high on LSD that he had no recollection of what happened on that day. He was convicted and sentenced to death.
Quick’s attorney, Charles Salvagio, appealed to the Alabama Court of Criminal Appeals, arguing that Quick had been denied a free copy of the transcript of his first trial, to which he was entitled because he was indigent. The court agreed. On May 21, 2001, it vacated the conviction and remanded the case for retrial.
For Quick’s third trial, Salvagio teamed up with Los Angeles defense attorney Thomas Mesereau to represent Quick pro bono. Salvagio and Mesereau had worked together pro bono twice before to win acquittals in high-profile capital murder cases in Alabama. The new defense team took an entirely different approach from that used in the previous trial. Now, Quick said that although he was high on LSD at the time, he did recall the shootings and he was not the trigger man. It was his high school friend, Beninati. He said he had not pointed the finger at him earlier because Beninati threatened to kill him, Kitchen, and their families if he did. Beninati insisted he was not at the scene when Hughes and King were shot but that Quick had taken him there to show him that both of the victims were dead. But under intense cross-examination by Mesereau, it was shown that Beninati knew the crime scene in the finest detail. He had offered to draw diagrams of where the bodies and vehicles were positioned at the time of the murders. He described the logos on the victims’ shirts, the expressions on their faces, and other details the defense argued he could not have known unless he was at the scene. “He gave them so much detail that it was almost hard to imagine he was not there,” Mesereau said. “He knew way too much about the murder and behaved like the killer.”
After a week-long trial, a Jefferson County jury acquitted Quick on April 21, 2003. But his moment of relief was fleeting. Almost immediately after the verdict was announced, prosecutor Teresa McClendon made it clear that he still had three burglary charges pending against him. In short order, he was tried, convicted, and sentenced to seventy-six years in prison.
Lemuel Prion
Arizona
Given Lemuel Prion’s past, it did not stretch the imagination to think police might have cast him as a suspect in a brutal murder case. His troubles with the law had begun with his failure to attend school when he was thirteen years old, but it was not long before he started to compile a rap sheet of some significance. He was arrested several times for burglary while in his late teens. He was convicted of aggravated assault and battery in a sexual case in Rock Hill, South Carolina, in his early twenties. Not long after, he spent five years, from 1986 to 1991, in prison in Pima County, Arizona, for attempting to rape a fifteen-year-old girl whom, according to court records, he threatened to “put to sleep” if she did not comply with his sexual demands. Prion moved from Arizona to Utah in 1993 at the age of twenty. There, he was convicted of aggravated assault for trying to beat his father over the head with a baseball bat. It was not the product of a sudden impulse. His father had brutally abused, one might even say tortured, Prion and his stepbrothers when they were children. It was while he was in a Utah prison that he was charged with the murder of Diana Vicari in Tucson, Arizona, a charge that eventually landed him on death row.
On October 24, 1992, the severed arms of the nineteen-year-old Vicari, a student at Pima Community College, were found poking out of a trash bag in a dumpster in an alley north of downtown Tucson. The rest of her body was never found. She was last seen the day before in the parking lot of the Tucson Convention Center. Shortly after her arms were discovered, a thirty-five-year-old prostitute, Tabitha Armentha, was kidnapped and sexually assaulted by a man at knifepoint. Police believed the two crimes were connected and Lemuel Prion emerged as a suspect. In August 1993, investigators questioned Troy Olson, a bartender who worked in the area of the convention center. They showed him photos of Vicari and Prion. He identified Vicari and said she had been at the bar a few days before her arms were found. He could not identify Prion. Neither could Armentha when shown a mug shot of the suspect. In 1995, local newspapers revisited the case and printed a photo of Prion. After seeing the photo, Olson called the police and said he now recognized the suspect. On October 31, 1997, while he was incarcerated in Utah, and exactly five years after Vicari’s arms were found, a grand jury indicted Prion for murdering Vicari and on charges of kidnapping and aggravated assault in the Armentha case.
Prion was tried for murdering Vicari and assaulting Armentha at the same trial in 1999. The prosecution’s case was less than flimsy. There was no forensic evidence—no fingerprints or blood stains; no murder weapon; nothing of any type that would place Prion at the scene of the crime. Prion would be convicted solely on the basis of the testimony of witnesses that had no first-hand evidence of his involvement with Vicari, none of whom could offer testimony on how or where the murder was committed; there was not even a body to which the arms belonged. The most damaging testimony, hardly of a compelling nature, was Olson’s who said he had seen Prion and Vicari together on the night of the murder. An inmate at the Utah prison told the court that Prion had spoken to him about committing violent acts against women. Police said that Prion had described the size of Vicari’s breasts which, a detective noted, he could not have known from the pictures he was shown. A former prostitute testified that Prion had threatened her life and told her he fantasized about raping and dismembering women. Other evidence submitted by the prosecution was the fact that the victim’s car was found less than two blocks from where Prion was living; that he possessed weapons that could have been used to dismember Vicari, including a machete and a large fishing knife; that he frequented nightclubs Vicari also favored. That was the sum of the state’s case.
The defense, effectively on notice that reasonable doubt would not work in its favor here, felt it was its burden to prove Prion’s innocence, and their best hope was to show that another man committed the crime. And, in fact, there was a live suspect whom police had basically chosen to ignore. His name was John Mazure. Mazure, known to have a violent temper, had been with Vicari on the night of her disappearance. Questioned by police, he was found to have concealed information, and according to the defense, he had “appeared at work the day after Vicari’s disappearance so disheveled and disoriented that he was fired.” For reasons not quite known, the judge did not allow that evidence to be submitted at trial. On January 28, 1999, Prion was convicted of first-degree murder for killing Vicari and of kidnapping and aggravated assault in the case of Armentha. The judge sentenced him to death.
In August 2002, the Arizona Supreme Court unanimously overturned the conviction, ruling that the trial court was guilty of judicial error for excluding the evidence regarding Mazure. The court stated that the third-party evidence “supports the notion that Mazure had the opportunity and motive to commit this crime …” The Supreme Court also held that the trial court had committed prejudicial error for allowing Vicari’s and Armentha’s cases to be tried at the same time. The ruling noted that “any connection between the two crimes is attenuated at best.”
On March 14, 2003, the Pima County Attorney’s Office dismissed all charges against Prion, but while his life had been spared, he was still a long way from being a free man. He was immediately returned to Utah to serve out the remainder of his previous sentence.
Daniel Wade Moore
Alabama
In a real sense, Daniel Wade Moore had his life spared and his freedom restored by the same judge who overruled a jury’s recommendation of a life sentence and sent him to death row. The judge, Glenn Thompson, called the murder of which Moore was convicted one of the worst he had ever encountered. The victim, Karen Tipton, was found dead in her home in Decatur, Alabama, on the evening of March 12, 1999. Her husband notified police and told them he had found the body. Tipton had been sexually assaulted and stabbed twenty-eight times. There were no signs of a break-in, but a number of items were missing from the apartment, including jewelry, a video camera, and the victim’s purse.
Moore was not arrested until nearly two years later when his uncle notified the police that Moore had told him that he was in Tipton’s house when she was murdered but that he was not involved in the killing. It was not much to go on, but the police had no other suspects. What they did have were two hairs found at the crime scene and they checked the DNA against Moore’s. Unfortunately for Moore, the DNA ruled out 99.8 percent of the population, but not him. There was no other physical evidence linking Moore to the crime, but his record was not in his favor. He was a known drug addict and had been in trouble with the law more than once. He admitted telling his uncle that he was present at the time of the killing but said he had done so because his uncle had been badgering him about some of his other legal problems. On the basis of his uncle’s testimony and the DNA found on the hairs, Moore was tried and convicted in November 2002 and sentenced to death two months later. However, things quickly turned in his favor.
Shortly after the trial, the judge learned that a 256-page FBI file on the case had not been turned over to the defense by the prosecution. The file contained evidence that Tipton had been carrying on an extramarital affair and pointed to her husband as a possible suspect. Judge Glenn Thompson, who originally had sentenced Moore to death, now weighed in in his favor. He overturned Moore’s conviction in February 2003 because the prosecution had withheld the file from the defense. Indignant in his ruling, Judge Thompson said, “Orders were entered in any capital case, that whatever the state has, whatever the prosecutor has, whatever the investigation has, they should provide that to the defendant. The prosecution, Mr. [Don] Valeska specifically, looked me in the eye and said, quote, ‘There ain’t no such thing as an FBI report.’ Well, there probably wasn’t a report, but there were 256 pages of information collected by Decatur police officers that were sent to the FBI.” Judge Thompson went on to say that Assistant Attorney General Don Valeska later came to him and acknowledged that such information was withheld. “It frustrated and angered me that he would be willing to lie to the court.”
The Alabama Court of Criminal Appeals responded by ordering Judge Thompson to stand down from the case while continuing to allow Valeska to continue as prosecutor. A motion by the defense that retrying Moore for the same crime would violate his constitutional protection against double jeopardy was initially granted by the trial court and Moore was released from prison. But not for long. Five days later an appellate court overturned the trial court’s decision and ordered a new trial. That trial, not held until 2008, ended with the jury deadlocked 8-4 for acquittal. A third trial was held in May 2009 and Moore was acquitted of all charges and released from prison the same day. Upon hearing the verdict, Judge Thompson said, “I felt it was the only conclusion that a jury could reach if they actually followed the law.”
Commentary: Culture of Corruption
The perversion of the criminal justice system is not, as some would have it, the product of a random handful of miscreants who are looking for an express trip to the top. It runs much deeper than that. It is part of a culture of corruption that has infected the entire system, top to bottom, inside and out. It involves not only the police, the prosecution, and the judiciary; it is embedded in the machinery of the system itself: a bail structure that punishes poverty by locking up suspects who have not yet been convicted but are unable to raise as little as two hundred dollars; jails that are not fit for human habitation; lengthy periods of solitary confinement in which prisoners are deprived of all human contact; mandatory sentences that keep convicts incarcerated for longer periods than reason would allow; public defenders whose case loads keep them from providing their clients with adequate representation—in sum, a system that favors retribution over rehabilitation and political expedience over justice.
Entire jurisdictions, including whole cities, large and small, have been found to be operating in corrupt environments that poison even the possibility of achieving justice. The case of Chicago has been well documented. Burge’s reign of terror lasted for nearly two decades. It is estimated that between 1972 and 1991, Burge’s “midnight crew” picked up about 120 men, chiefly African Americans, who were tortured until they confessed to crimes of which they were innocent. Convicted and sentenced for lesser infractions, Burge was spared being charged with abuse because the statute of limitations had run out. As recently as the spring of 2015, Mayor Rahm Emanuel was seeking to pay reparations to scores of people who were among Burge’s victims.
The brutal practices of the Los Angeles police department came to light in 1992 when television cameras captured the bludgeoning of Rodney King, but that was just the start of an investigation into police corruption. Later that decade, what became known as the Rampart Scandal touched off what has been called one of the most widespread cases of police misconduct in the history of the United States. All told, around seventy police officers were implicated; fifty-eight were brought to trial; five were ultimately fired; seven resigned, and twelve officers were suspended. The officers involved were all members of the Community Resources Against Street Hoodlums (CRASH) unit within the Rampart Division.
The depth of corruption was profound. Trial documents indicated that several police officers were in the direct pay of drug dealers and other heavyweights in the city’s criminal hierarchies. They were involved in shootings, beatings, the framing of innocent people, a bank robbery, drug dealing, and the planting of evidence at crime scenes. The Rampart Scandal resulted in more than 140 civil lawsuits against the City of Los Angeles, costing the city an estimated $125 million in settlements. As of 2015, the extent of the scandal was still not fully known.
More recently, in December 2014, a two-year investigation of the Cleveland Police Department by the US Department of Justice uncovered a pattern of “unreasonable and unnecessary use of force” with black residents as the primary targets. In addition to abuses involving firearms, the report cited the use of Tasers, chemical spray, and fists. Such tactics, the report said, escalated potentially non-violent encounters into dangerous confrontations.
The city, long a hotbed of antagonism between the police force and the black community, was brought to a boil on November 22 by the fatal shooting of Tamir Rice, a twelve-year-old African American boy, when a rookie patrolman mistook a toy gun in the boy’s waistband for a semi-automatic pistol. The situation was grave enough to prompt President Obama to dispatch Attorney General Eric H. Holder to Cleveland to announce his findings. He determined that the city’s police problems stemmed from “systemic deficiencies, including insufficient accountability, inadequate training and equipment, ineffective policies, and inadequate engagement with the community.”
The Cleveland report climaxed a two-week period fraught with tensions between communities and their police departments, some of which escalated into riots that went on through the night. The day before the Cleveland report was released, a grand jury in Staten Island, New York, declined to indict a white police officer in the choking death of Eric Garner, an unarmed black man who was accused of selling cigarettes illegally. The Garner case burst open less than two weeks after the small town of Ferguson, Missouri, became the site of round-the-clock rioting when a grand jury failed to indict a white police officer who shot to death Michael Brown, an unarmed black man. Both the Garner and Brown cases ignited violent demonstrations in major cities around the country, including New York, Boston, Chicago, and Washington.
The culture of corruption that permeates the local criminal justice systems throughout the country, critical as it is, seems to pale when one contemplates the infestation of law enforcement at the federal level, the very highest level, the sacrosanct Federal Bureau of Investigation, at its very peak. Peter Limone was the victim of such a travesty.
Peter Limone
Massachutts
The case of Peter Limone is like no other. His thirty-three years in prison—four and a half on death row—places him high on the longevity list among those wrongfully convicted who were later exonerated. But that is just the beginning of his story. Limone, convicted of a gangland hit, was framed by an unlikely cadre of racketeers and rogues. Some were members of the Mafia; others were FBI agents. One was the long-time, once-revered director of the bureau, J. Edgar Hoover.
On March 12, 1965, a small-time hood by the name of Edward “Teddy” Deegan was shot to death in an alley in Chelsea, Massachusetts, a suburb of Boston. The murder remained unsolved for more than two years. Then, a high-up Mafia hit man, Joseph “The Animal” Barboza, who moonlighted as an FBI informant, put the finger on Limone and three others—Joseph Salvati, Henry Tameleo, and Louis Greco. Barboza was a well known figure in the Boston area, and his appearance on the witness stand attracted its share of attention. US marshals surrounded the courthouse every day he testified, and of course all of his testimony was given under a grant of immunity.
It served Barboza’s interest to have the case cleared because he himself was involved in the killing. He knew the four men he named were innocent and so did the FBI. The FBI’s interest was served as well. Barboza was one of their top Mafia informants, and agents of the bureau were as protective of their snitches as they were of the reputation of their director. Solely on the strength of Barboza’s testimony, which had been orchestrated and rehearsed in cooperation with FBI agents, Limone and the three others were convicted of capital murder and sentenced to die in the electric chair. They escaped death when Massachusetts abolished the death penalty in 1974, and their sentences were commuted to life. Both Tameleo and Greco died in prison. Salvati was released in 1997 when the governor commuted his sentence. Only Limone, whose criminal record included a youthful offense for an attempted break-in and a few gambling-related charges for running a dice game, continued to serve time. He had been denied parole in 1987, some twenty years into his sentence, and there appeared to be little hope he would ever set foot outside the prison gates. Thirteen years later, his outlook would change.
In 2000, the US Justice Department opened an investigation into corruption in the Boston office of the FBI. The investigation was to reach back to the 1960s, and what it began to uncover was not pretty. It turned up documents showing that officials at FBI headquarters, including Hoover, were aware that Boston agents were employing killers and gang leaders as informers and were protecting them from prosecution. Among the copious files relating to the Deegan case was a report showing that, two days before Deegan was killed, an FBI informant told Special Agent H. Paul Rico that Vincent “Jimmy the Bear” Flemmi, the brother of another informant, planned to kill Deegan and that then-New England Mafia boss Raymond L.S. Patriarca had approved the hit. The report, written by Rico and agent Dennis Condon, both since retired, named four other men, including Barboza, who were involved in the plot. None of the men later convicted of the crime was named in the list.
Further documentation included a memorandum from the Boston field office to Hoover, dated a week after the murder, stating, “Informants report that … Vincent James Flemmi and Joseph Barboza, prominent local hoodlums, were responsible for the killing.” The memo goes on to describe in detail how the murder was carried out. Hoover and his agents knew before the trial that four innocent men were being railroaded and perhaps sent to their deaths for a crime committed by one of their informants. But Barboza was considered too valuable a snitch to be sacrificed in the interest of justice. After the trial, he became the first person ever to be placed in the federal witness protection program.
Based on the emerging revelations, Limone’s attorney, John Cavicchi, requested that his client’s conviction be overturned and that he be granted a new trial. At a hearing near the end of December 2000, Middlesex Superior Court Judge Margaret Hinkle, clearly sympathetic to Limone’s plight, took the unusual step of lifting attorney-client privilege so that Joseph J. Balliro Sr., a well-known Boston defense attorney, could divulge information he was told decades earlier about Deegan’s murder. Balliro then told the court Vincent Flemmi had confessed to the crime in the 1960s before his death. The attorney had written an affidavit stating that Vincent, the brother of Stephen “The Rifleman” Flemmi, another gangster who worked in the service of the FBI, had told him that Limone and the three other convicted men had nothing to do with the crime.
Early in January 2001, Judge Hinkle vacated Limone’s conviction and ordered his release from prison. Two weeks later, she threw out the conviction of Salvati who had been paroled in 1997, saying, “The conduct of certain agents of the bureau stains the legacy of the FBI.” Salvati’s attorney, Victor Garo, said his client had been the victim of a conspiracy. “J. Edgar Hoover and senior members of the FBI conspired to murder my client,” Salvati told UPI reporter P. Mitchell Prothero. “This was not the work of rogue agents.”
The congressional investigation, led by Representative Dan Burton, Republican of Indiana, chairman of the House Government Reform Committee, turned up evidence that the Boston FBI field office had allowed several informants to seize control of the city’s organized crime operations and manage them under the protection of federal law enforcement officials. Mobsters James “Whitey” Bulger and Stephen Flemmi were indicted for about twenty murders which were allegedly covered up by FBI agents protecting their key informants. It was charged that Bulger and Flemmi were permitted to carry out crimes, including murder, in exchange for providing the FBI with information about rival mob families.
The committee hearings continued at least through 2002. At one point, the noted lawyer F. Lee Bailey testified that he believed the FBI had coached Barboza on how to lie on the witness stand. Bailey, who had represented Barboza briefly in 1970, said, “He told me he had quite a bit of help. I believe the testimony was furnished.”
A key witness for the congressional committee was Jeremiah T. O’Sullivan, who was in charge of the New England Organized Crime Strike Force and later a US attorney in Boston in the 1970s and ‘80s. O’Sullivan testified that he was aware that informers were committing murders and receiving protection from the FBI, but he took no action because he feared reprisals. “With the FBI,” he said, “if you go against them, they will try to get you.”
One of the first casualties of the investigation was John J. Connolly Jr., a retired FBI agent who was sentenced to ten years in prison in September 2002 for racketeering and obstruction of justice. Connolly, it was charged, had essentially become a member of Whitey Bulger’s infamous Winter Hill Gang in South Boston, sometimes referred to as the Irish Mafia.
Bulger was indicted for racketeering and involvement in nineteen murders. He disappeared in 1995 after Connolly tipped him off to the secret indictment. He remained at the top of the FBI’s Most Wanted List until June 22, 2011, when he was captured in Santa Monica, California, by federal agents following a tip to the FBI. He had been living with his girlfriend, Catherina Greig, in a $1,165-a-month, rent-controlled apartment thee blocks from the beach. On the door was a hand-printed sign that read: DO NOT KNOCK UNDER ANY CIRCUMSTANCES. Bulger was tried in 2013 and convicted of taking part in eleven murders. In November of that month he was sentenced to two life terms. He was eighty-four years old.
Ironically, Bulger’s brother, William M. “Billy” Bulger, a Democratic politician, was president of the Massachusetts Senate for eighteen years, the longest tenure in history. He also served as president of the University of Massachusetts until he was forced to resign in 2003 when he refused to testify at a congressional hearing about his communication with his brother.
Stephen Flemmi, eighty years old at the time of his arrest, pled guilty in 2003 to committing ten murders and was sentenced to forty years in prison.
Peter Limone, sixty-seven years old when he was released, shared in the largest wrongful conviction settlement in history. In 2007, he, Salvati, and the estates of Tameleo and Greco were awarded a total of $101.75 million for wrongful imprisonment.
The Ford Heights 4
Illinois
The case that became known as the Ford Heights 4 was a textbook example of corrupt practices, involving prosecutorial and police misconduct, false eyewitness identification, the perjured testimony of a jailhouse snitch, and junk science that validated an inconclusive match of both blood and hair samples. The result was the wrongful conviction of four men, all black, two of whom received death sentences; the other two were given respective terms of life and seventy-five years.
Their long night’s journey through the criminal justice system began around 2:30 a.m. on May 12, 1978. A newly engaged couple, Lawrence Lionberg and Carol Schmal, were abducted from a gas station in the virtually all-white Chicago suburb of Homewood, Illinois, where Lionberg was working the overnight shift. They were driven to an abandoned townhouse in the predominantly black section of East Chicago Heights, which later became known as Ford Heights. Schmal was raped, and she and Lionberg were shot in the back of the head. The Ford Heights 4—Dennis Williams, Verneal Jimerson, Kenneth Adams, and Willie Rainge—were arrested a few days later.
The appearance of prosecutorial bias was evident from the start, with the selection of the jury. The seventeenth potential juror called for voir dire (the questioning of potential jurors) was Leroy Posey, a pump-operator from Chicago’s South Side. After answering the routine questions, Posey, who had noticed that black candidates were being regularly stricken with peremptory challenges by the prosecution, asked permission to speak. “It’s obvious the state’s attorneys want an all-white jury,” he said. “They don’t want me here.” Posey was excused. The trial jury consisted of eleven whites and one black woman.
The star witness for the prosecution was Charles McCraney, who lived near the murder scene. He testified that at around three o’clock on the morning the couple disappeared he saw six to eight people—among them Williams, Rainge, and Adams—enter the abandoned townhouse. A second witness, David Jackson, who was doing time in the Cook County jail where Williams and Rainge were being held after their arrest, said he heard the two talking about how they had killed a man and “taken” sex from a woman. As neither witness was able to identify Jimerson, the charges against him were dropped but, as it turned out, only temporarily.
In some respects, the most critical “witness” in the case was a seventeen-year-old woman who saw nothing and never testified. Paula Gray, illiterate and mildly retarded, lived near the crime scene and was questioned by police shortly after the murders. Gray had quite a story to offer. She told the police and later a grand jury that she had actually witnessed the rape and murders. She said, in fact, that she provided light for the assailants in the townhouse by holding a disposable cigarette lighter while Schmal was raped seven times. However, Gray soon recanted her statements and refused to testify at the trial. She was then charged as an accomplice, convicted, and sentenced to fifty years.
The physical evidence presented by the prosecution was as weak as the eyewitness testimony. The Type-O blood from one of the victims was the most common type and therefore an unreliable indicator, even if a match were made. Even less reliable was the examination of three hairs found in Williams’s car. Unlike fingerprints, a person’s hair type is not unique (except as a repository for DNA, a technology unavailable in 1978). Even under a microscope, the most certain conclusion a scientist can reach is that two hairs could have come from the same person. The forensic expert who testified about the hair samples said that two of the hairs found in the car were “similar” to Carol Schmal’s and the third was “similar” to Lionberg’s. However, the prosecutors continually substituted the word “matched” for “similar” during the balance of the trial, a designation that went unchallenged by the defense.
In 1983, Williams, who had been on death row for four years, won a new trial as a result of the ineffective assistance of counsel. Looking to buttress their case, prosecutors offered to cut a deal with Gray, and she was more than ready to accept. She agreed to revert to her original testimony that she had witnessed the crime and this time would implicate Jimerson as well as Williams. Gray insisted she had not been offered anything in exchange for her testimony. But shortly after the conclusion of the trial, some of the charges against her were dropped and, with about forty years of her sentence remaining to be served, she was released from prison on two years’ probation. Both Williams and Jimerson were convicted and sentenced to death.
The Ford Heights 4 case subsequently came under the scrutiny of the Medill Journalism School investigative team, headed by Professor David Protess. They enlisted the pro bono help of Mark Ter Molen, of the Chicago law firm of Mayer, Brown & Platt. Among the team’s discoveries was a file showing that five days after the crime, a witness had told police he had seen four men flee the scene of the crime. He identified all four by name, and none of the names was Williams, Jimerson, Rainge, or Adams. One of them was Arthur (Red) Robinson, who would later be identified as one of the actual killers.
As the students continued their probe, other instances of misconduct were uncovered, and the case started making its way back into the judicial machinery.
In 1995, the Illinois Supreme Court unanimously reversed Jimerson’s conviction because the prosecution had allowed Gray to testify falsely about the deal she had made. Although the prosecutors never admitted striking the bargain, the judges noted that in reaching their decision they “are not required to suspend common sense.” Jimerson was released on bond.
In 1996, DNA tests showed that none of the Ford Heights 4 was involved in the murders. The DNA provided a match with Robinson, who confessed and named his three accomplices. One had since died of a drug overdose; another was serving time on a murder charge. He and the remaining two were convicted and sentenced to life.
Jimerson, Williams, Rainge, and Adams were exonerated and set free. Jimerson had spent eleven years on death row; the others were each imprisoned for eighteen years. Three of the attorneys who represented them have since had their licenses to practice law revoked or suspended for other reasons. The Ford Heights 4 were awarded $36 million by Cook County to settle civil rights claims. It was the largest civil-rights settlement in US history. Williams died on March 20, 2003, of undisclosed causes. He was forty-six years old.
Earl Charles
Georgia
Earl Charles was sentenced to death on the perjured testimony of a corrupt cop. He was freed because of the dedicated precision of an honest cop and the unflagging efforts of a mother who believed that ultimately the truth would prevail.
Charles was convicted of shooting to death a Savannah, Georgia, furniture store owner and his son during a robbery late one October afternoon in 1974. Max Rosenstein and his wife, Myra, both in their seventies, along with their son, Fred, and the bookkeeper, Bessie Corcelius, were the only ones in the store when two young black men entered. After pretending to make a purchase, one of the men brandished a pistol and announced a stickup. The Rosensteins resisted. Max attempted to scoop up money from the cash register and get it into a safe and was shot in the head. Myra was hit in the face with a tape dispenser and fell to the floor bleeding. Fred was shot when he went to her aid. Bessie Corcelius hid under a desk and was still there when the men fled with the money.
The two survivors, Myra and Bessie, spent hours looking at police mug shots but were unable to identify the killers. Among the mug shots they rejected was a five-year-old photo of Earl Charles. Now twenty-one years old, Charles had been convicted of burglary and shoplifting while in his teens and had spent fourteen months in custody. A few days later, police showed the women a more recent photo of Charles, but they still did not recognize him. In yet another attempt to get an identification, Detective F.W. Wade visited Bessie at her home with another batch of photos. When she was unable to point anyone out, Wade told her it was not important because he was ready to make an arrest. On November 15, Charles was picked up in New Port Richey, Florida. A month later, he was extradited and returned to Savannah where he was charged with the double murder.
Charles had left Georgia in early September, more than a month before the crime was committed. Together with his neighbor Michael Williams and Williams’s girlfriend, Charles had driven to Tampa, Florida, looking for work. He and Williams took jobs at a gasoline service station. The station manager, Robert Zachery, was wary about leaving his new hired hands to man the station unsupervised, and he asked his friend, Deputy Sheriff Lemon Harvey, to look in on them from time to time. Harvey agreed and dutifully kept notes on his visits to the station. Barely two weeks after the men had begun work, the station was robbed of about $1,000. Zachery was uncomfortable with the story they told of the holdup, and he fired them both. Charles soon found a job as a handyman for a company that managed apartment buildings, but more trouble was just around the corner.
On November 15, Charles and Williams were driving north from Tampa with two other acquaintances, Raymond Ash and James Nixon. They stopped for lunch in New Port Richey. Once inside the restaurant, Nixon went back outside, saying he wanted to retrieve something from the car. The other three finished lunch before he returned. When they went to the parking lot, they found Nixon being held at gunpoint by the owner of a nearby store who said she had caught him taking money from the till.
All four men were taken to the police station, and when their names were fed into the computer, it was discovered that Charles and Williams were wanted in Georgia for murder, armed robbery, aggravated assault, and fleeing across state lines to avoid prosecution. Myra Rosenstein and Bessie Corcelius came to Florida, in the company of Detective Wade, to identify the suspects at an extradition hearing on December 19. Both picked Charles out of a police lineup and identified him as the gunman, though Mrs. Rosenstein acknowledged that Charles looked different from the man who shot her husband. He was nonetheless returned to Georgia for prosecution; the state said it would seek the death penalty.
Testifying against Charles, in addition to Mrs. Rosenstein and Mrs. Corcelius, were Detective Wade and James Nixon. Nixon, who had been arrested on a robbery charge, said that while he and Charles were in jail, Charles bragged to him about shooting “a man and a little boy” in a Savannah furniture store. The “little boy” apparently was forty-two-year-old Fred Rosenstein, who Nixon doubtless had heard described as the elder Rosenstein’s son. Wade testified that when he interrogated Zachery, the service station owner, he was told that Charles had not been at work on the day of the murders.
The case for the defense appeared to give Charles an unimpeachable alibi. Zachery, who had fired Charles, voluntarily drove to Savannah at his own expense to testify that Charles was working at the station on the day of the murders. His story was documented by time cards and payment vouchers, but was ignored by the jury. They found Charles guilty. The trial judge, who later acknowledged doubts about the defendant’s guilt, sentenced him to die in the electric chair.
At this point, Charles needed an advocate who believed in his innocence and who was prepared to work tirelessly in his behalf, and he had one. It was his mother, Flossie Mae. Mrs. Charles understood that the one man who knew for a fact that her son was innocent was Robert Zachery. She called the service station owner repeatedly, soliciting his help. Zachery, who had returned home after his testimony, was astonished that Charles had been found guilty, but could think of nothing else to do. His friend Lemon Harvey, the deputy sheriff, came to his rescue. Harvey had checked up on Charles and Williams regularly when they were working at the station and had kept a detailed diary of his daily rounds. He checked the entries and discovered that he had seen the two men at work on the day of the murders. He notified Zachery who called Mrs. Charles who called Earl’s attorney. Harvey was interviewed by lawyers for both the defense and the prosecution. The case against Charles began to unravel.
Nixon recanted his testimony, saying Wade had coached him and promised him he would be released in exchange for testifying, but Wade had not kept his end of the deal. Wade was further implicated for having withheld exculpatory evidence and coaching eyewitnesses. It also seemed certain that he had perjured himself at the trial. The district attorney said he would not oppose a motion for a new trial and, if granted, he would not retry the case. The judge responded by vacating the conviction, and Charles was released after spending more than three years in prison awaiting execution.
The following year, with the help of the Southern Poverty Law Center, Charles filed suit against the city of Savannah and Detective Wade. The suit claimed false imprisonment and malicious arrest. It specifically alleged that Wade had knowingly tainted the eyewitness identifications, manipulated Nixon into committing perjury, withheld exculpatory evidence, and committed perjury. In October 1983, four years after the suit was filed and three years after it was thrown out of federal district court, the Fifth Circuit Court of Appeals reversed the lower court. The claim against the city was denied, but Wade was assessed $417,000 in damages. Since Wade had few assets that could be offered in payment, the city agreed to pay $75,000 in his behalf, and all litigation was dropped.
Though Charles was vindicated, the ten-year ordeal took its toll. He felt that people still doubted his innocence. “It’s a scar that’s been placed on me,” he told a newspaper reporter, “and I have to live with it.” But, as it turned out, not for very long. In March 1991, the Atlanta Constitution reported that Earl Charles had “walked into the path of an oncoming car” in Cobb County, Georgia. It was an apparent suicide.
Jerry Banks
Georgia
“Southern justice in capital murder trials is more like a random flip of the coin than a delicate balancing of the scales. Who will live and who will die is decided not just by the nature of the crime committed but by the skills of the defense lawyer appointed by the court. And in the nation’s Death Belt, that lawyer too often is ill-trained, unprepared and grossly underpaid.”
That quote opened a special report on the quality of defense attorneys in capital cases, published in the National Law Journal in 1990, and referenced by Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam in their 1992 book In Spite of Innocence.
The case of Jerry Banks illustrated the travesty of Southern justice, while eerily reprising the devastation that the state of Georgia visited upon Earl Charles. Banks was twice convicted and condemned to die for a double murder that occurred just weeks after the crime for which Charles was convicted. Like Charles, Banks was arrested on scant evidence, railroaded by corrupt police practices, and denied justice at every turn. He eventually was exonerated and awarded a ludicrously nominal sum by way of compensation for five years spent on death row. Also like Charles, Banks, a black man who lived at the edge of poverty, finally resolved matters by taking his own life.
Banks was rabbit hunting in a wooded area south of Atlanta in early November 1974 when he came upon two bodies partially covered by a red bedspread. Banks hurried down to the road, flagged down a motorist, and told him to call the police. The police discovered that the victims, both white, were Marvin W. King, a thirty-eight-year-old high school band instructor, and Melanie Ann Hartsfield, a former student of King’s. Each had been hit with two shotgun blasts, one in the back and one in the head. Two red shotgun shells were found nearby. Banks, who had been hunting with a shotgun, said he had not fired his weapon that day. Police twice tested his gun and believed they had found a match. About a month later, a third shell was found near the crime site, and Banks was arrested and charged with murder. The legal machinery moved swiftly. Less than two months after his arrest, Banks was convicted and sentenced to death.
Banks had little money, but he put together enough to retain a local attorney, Hudson John Myers. Myers said he was hired for what amounted to “a mess of collard greens.” He performed as if collard greens were too high a fee. He failed to call key witnesses who could have corroborated Banks’s account of where he was at the time the crime was committed and others who had spotted more likely suspects in the area shortly before the murders. Equally important, Myers had failed to find the motorist who called the police at Banks’s request. Banks was convicted on an entirely improbable scenario, highlighted by the fact that the state never suggested a motive for the crime. The jury was thus obliged to consider that Banks had killed two people for no apparent reason, then asked someone to notify police of the crime, waited for them to arrive, and eagerly handed over the murder weapon.
Not long after the trial, the so-called “mystery caller,” Andrew Eberhardt, called the trial judge and told him that he had identified himself when he reported the crime and that he had been questioned by the police. In September 1975, the Georgia Supreme Court reversed the conviction because information regarding the motorist was withheld from the defense. It did Banks no immediate good. Myers presented even less of a case at the retrial than he did the first time. Eberhardt was the only witness called, and his testimony was not nearly enough to convince the jury. Banks again was convicted on two counts of murder and returned to death row.
Ironically, evidence that would eventually contribute to Banks’s acquittal was used to justify the death penalty. Banks had a single-barrel shotgun which had to be reloaded after each shot, a maneuver that would have taken at least five seconds. That should have raised doubts in the minds of the jury since witnesses who heard the shots said they came in rapid succession. Instead, it was turned to the advantage of the prosecution. The jury was told that the delay in reloading three times intensified the anxiety experienced by whoever was the second victim. In the words of the Georgia statute, this made the second slaying “outrageously and wantonly vile, horrible, and inhuman” and justified imposing the ultimate sanction.
Banks’s life was saved by a chance meeting with a public defender at the Henry County Jail. Alex Crumbley was visiting with some of his clients, Banks’s fellow inmates, when Banks asked for a small favor. He had not heard from his lawyer in a long time, and Banks wondered whether Crumbley could inquire whether Myers was still on the case. He was not. Crumbley soon learned that Myers was not on anyone’s case. He was in the process of being disbarred because of his incompetent representation of other clients. In the process of his inquiries, Crumbley had become convinced of Banks’s innocence and was working his case pro bono. But in1978, he was appointed a judge and could no longer represent Banks. Determined to press on, Crumbley enlisted a legal team that consisted of A.J. “Buddy” Welch Jr., Stephen P. Harrison, and Crumbley’s younger brother, Wade, who had recently graduated from Georgia Law School.
Their first initiative resulted in failure. Both the superior court and the Georgia Supreme Court denied a request for a new trial based on ineffective assistance of counsel. Undeterred, Banks’s new legal cadre pushed forward with their investigation. They found no fewer than nine witnesses who had not been called whose testimony would have served the defendant’s cause. Seven people, including Paul Collier, the police chief of Stockbridge, had heard four shots in rapid succession that could not have been fired from Banks’s twelve-gauge, single-barrel shotgun. Together with the mayor of Stockbridge, Collier later visited the murder site and found two green shotgun casings that did not match Banks’s weapon. In addition, two witnesses said they had seen a white man brandishing a shotgun near the scene of the crime minutes after the shots were fired.
Despite the imposing array of new evidence, the trial judge denied a request for a new trial. This time, however, the superior court reversed and ordered a third trial for Banks. Six months passed while the prosecution prepared its case. But Welch, Harrison, and Crumbley made a new discovery that turned the proceedings around. They learned that the shell casings originally found at the scene had almost certainly been planted.
Philip S. Howard, the lead investigator in the case, was found to have a less than enviable record as a police officer. Howard, in fact, had a history of falsifying evidence. He had resigned from one police force and been fired from another, was convicted of forgery and, most tellingly, had “tampered with and manipulated evidence involving [shotgun] shells” in another case. Now it appeared he had done it again in an effort to convict Banks. Howard said he had found the shell casings matching Banks’s gun the day before it was taken for test firings. However, credible new evidence, including the statement of a former county commissioner, indicated that the gun was tested before the shells were found. The likelihood grew that Howard had taken the test shells and planted them in the woods. Confronted with these findings, the district attorney conceded that the shotgun shells, the only evidence tying Banks to the crime, “lack[ed] sufficient legal credibility to be believed.” All charges against him were dropped.
Three days before Christmas 1980, Banks returned home to his wife and three children. But his homecoming was not all one might have hoped for. He found that five years of separation were difficult to breach. He and his wife had grown apart, and she wanted a divorce and custody of the children. Three days before the divorce was to become final, on March 29, 1981, Banks shot his wife with a .38-caliber pistol, then shot himself in the chest. He died instantly. His wife died of the gunshot wounds six weeks later.
The Banks children sued the Harris County sheriff’s department for $12 million. They were awarded $150,000. The Atlanta Constitution called the settlement “blood money.” The editorial continued: “No amount of money could ever really make up for what the system—all of us included—did to Jerry Banks and his family. But $150,000 doesn’t even begin to address the level of damages, the lasting pain. In fact, it comes closer to being an insult.”
Clarence Lee Brandley
Texas
Race often plays a part in wrongful arrests and convictions, particularly in the South, but rarely is it as blatant a factor as it was in the case of Clarence Lee Brandley. A custodian at Conroe High School in Conroe, Texas, Brandley was sentenced to death for raping and strangling the sixteen-year-old manager of the visiting Bellville High volleyball team on August 23, 1980. There was virtually no evidence linking Brandley to the crime, but his being black seemed to be reason enough to convict him.
The victim, Cheryl Fergeson, was found dead after the game in a loft above the school auditorium. Fergeson, who was white, would have entered her junior year in the fall. The two custodians who had found the body, Brandley and Henry (Icky) Peace, were questioned and fingerprinted. They gave blood and hair samples. They both passed lie-detector tests. But none of that seemed to matter. The investigation had been shaped on the day of the murder. According to Peace, the officer conducting the interrogation had said, “One of you two is going to hang for this.” Then he turned to Brandley and added, “Since you’re the nigger, you’re elected.”
With the new school year about to begin and parents threatening to keep their children home unless the killer was caught, the authorities knew they needed a quick arrest. The list of suspects was short. Three other custodians—Gary Acreman, Sam Martinez, and John Sessum—provided alibis for one another. There seemed to be no place else to go, and Brandley, after all, had already been elected. Texas Ranger Wesley Styles, who was put in charge of the investigation, arrested him on a charge of capital murder.
The state had little to offer by way of proof except for the statements of the other custodians, all of whom were white, which at very best obliquely placed Brandley near the crime scene that afternoon. Acreman, Martinez, and Sessum related stories so similar in detail that the defense claimed they had been coached by the police. In any event, it was difficult to deny that they each had a stake in the outcome. In individual statements, they said they had seen Cheryl enter a girls’ restroom near the gym and, a short time later, Brandley approached with an armful of toilet paper. They said they warned Brandley that a girl was in the facility, and he said he was going to the boys’ restroom. They did not see him again for about forty-five minutes until the search for the missing girl began. In his statement, Peace also turned the focus of suspicion toward Brandley. He said that when he told Brandley he had not found the girl in the loft, Brandley went with him to search more thoroughly. When they found the body, Peace said Brandley calmly checked for a pulse and then notified the authorities. In addition, all four said that only Brandley had keys to the auditorium.
Just five days after the crime was committed, Brandley found himself testifying before an all-white grand jury. His version of events differed slightly from those presented by his fellow custodians. He admitted disappearing for about thirty minutes, not forty-five, but said he was smoking a cigarette and listening to the radio. He also testified that there were others who had master keys that could be used to open the auditorium. All the same, the grand jury returned an indictment, and Brandley went on trial in December 1980, again before an all-white jury.
What little physical evidence existed seemed to favor the defendant. A fresh blood spot had been found on the victim’s blouse that was of a type different from both hers and Brandley’s. Sperm recovered from Cheryl’s body had been destroyed, presumably before it was tested. The remnants of the prosecution’s case that remained proved to be conclusive enough for eleven jurors. The twelfth, William Srack, was unconvinced, and Srack held his ground despite being assailed by the other jurors as a “nigger lover” during deliberations. When the trial was over, Srack was the target of threats and harassing phone calls, some of which were monitored by the police. But the jury was hung and a retrial was scheduled for February 1981.
At the second trial, yet again heard by an all-white jury, an original prosecution witness was dropped and a new one was added. John Sessum apparently was no longer willing to echo the story told by his three colleagues. He was threatened with a charge of perjury but stood fast. The state’s new witness was a junior at the school, Danny Taylor, who had worked with the custodial staff briefly during the summer. Taylor testified that one day, as they watched a group of white female students pass by, Brandley had commented, “If I got one of them alone, ain’t no tellin’ what I might do.”
In an attempt to add some meat to the bones of its case, the state called the Harris County medical examiner who verified that a belt belonging to Brandley was consistent with the injuries inflicted by the instrument used to strangle the victim. In his closing argument, the district attorney offered the information that Brandley had a second job at a funeral home and suggested that he might be a necrophiliac and had raped Cheryl after she was dead. The defense objected on the grounds that the remark was inflammatory but was overruled. This time there was no holdout. The jury returned a verdict of guilty and recommended death as the penalty. The judge obliged.
Eleven months later, as they were preparing his appeal, Brandley’s attorneys discovered that a good bit of evidence the state had used at trial had mysteriously disappeared while in the custody of the prosecution. A total of 166 of the 309 exhibits that had been introduced could no longer be found. These included hairs taken from Cheryl’s body that matched neither Brandley’s nor her own. Also missing were photos of Brandley taken on the day of the crime that showed he was not wearing the belt that was suggested to be the murder weapon.
The Texas Court of Criminal Appeals was unimpressed. It affirmed the conviction and death sentence. “No reasonable hypothesis is presented by the evidence to even suggest that someone other than [Brandley] committed the crime,” the court ruled. Brandley’s execution date was set for January 17, 1986. However, the defense succeeded in getting a delay. A petition for a writ of habeas corpus, claiming that the lost evidence had deprived Brandley of a fair trial, was granted, and a hearing was scheduled for the summer. The six-month delay saved Brandley’s life, for his luck was about to change.
A young woman by the name of Brenda Medina, who lived in the neighboring town of Cut and Shoot, Texas, saw the case being discussed on a television broadcast. She told a neighbor she had not heard about the case before, and added that her former boyfriend, James Dexter Robinson, had told her in 1980 that he had committed such a crime. The neighbor urged her to tell a lawyer, and the lawyer told her to take her story to the district attorney. The DA concluded that Medina was unreliable, and thus he was under no obligation to share the information with Brandley’s lawyers. The private attorney did not agree. He notified the defense, and an evidentiary hearing was ordered, with District Court Judge Ernest A. Coker presiding.
John Sessum, the custodian who had not testified at the second trial, now took the stand and recanted his earlier testimony. He also implicated Gary Acreman. He said he had seen Acreman follow Cheryl up a staircase and then heard her scream, “No” and “Don’t.” Later that day, he said, Acreman had warned him there would be trouble if he said anything about the incident. Nonetheless, Sessum chose to inform Texas Ranger Styles. It was a poor choice. Styles told him they already had their man and threatened him with arrest if he did not support Acreman’s story. With Acreman now beginning to look like a suspect, his father-in-law, Edward Payne, did not help his son-in-law’s position. He testified that Acreman had told him where the victim’s clothes were hidden on the night of the murder, which was two days before they were found.
When Medina took the stand, she stated flatly that Robinson had confessed to the murder. A former custodian at Conroe High who had been fired about a month earlier, Robinson told her he was leaving town for a while because he had killed a girl and hidden her body. Medina said she did not believe him and thought nothing more about it until Brandley’s case came to her attention years later. Robinson also appeared at the hearing. He testified that he had invented the story he told Medina because she was pregnant and was hassling him, and he wanted to frighten her into leaving him alone. Despite what appeared to be overwhelming new evidence in his favor, Brandley’s request for a new trial was denied. On December 22, 1986, the Texas Court of Criminal Appeals upheld that decision. In February, a new execution date was set—March 26, 1987.
But by that time, the case had drawn wide national attention. Civil rights activists had raised $80,000 to finance further legal action. A protest demonstration in Conroe drew more than one thousand marchers. A “Free Clarence Brandley” coalition was formed. Amnesty International entered the fray. James McCloskey, of Centurion Ministries in Princeton, NJ, agreed to take the case. A former seminary student before he became an attorney, McCloskey had made a career of seeking to win freedom for innocent prisoners.
Working with a private investigator, McCloskey was able to get Acreman to give an updated version of the events on videotape. Acreman said that Robinson alone had abducted and killed Cheryl. He said he saw Robinson drop her clothes in the dumpster where they were found. Acreman later recanted his videotaped statement, but by that time events were moving in Brandley’s direction. Two new witnesses surfaced who said they heard Acreman say that Brandley did not kill the girl. He said he knew who the killer was but would never tell. Only six days before the scheduled execution, Judge Coker ordered a stay.
In September 1987, a new evidentiary hearing was held. Presiding was Special State District Judge Perry Pickett, seventy-one years old and with a time-honored reputation for being scrupulously fair. The key witnesses, including Acreman, Robinson, and Styles, offered testimony that seemed to discredit one another rather than implicate Brandley. Robinson and Acreman emerged as serious suspects. Styles was depicted as a bullying racist. On October 9, Judge Pickett concluded the hearing with a statement that rang with indignation about the manner in which the case was conducted. He said:
“The litany of events graphically described by the witnesses, some of it chilling and shocking, leads me to the conclusion [that] the pervasive shadow of darkness has obscured the light of fundamental decency and human rights.” He continued with an indictment of how the prosecution was conducted, declaring that the state had “wholly ignored any evidence or lead to evidence that might prove inconsistent with their premature conclusion that Brandley had committed the murder. The conclusion is inescapable that the investigation was conducted not to solve the crime, but to convict Brandley.” The judge recommended that the Texas Court of Criminal Appeals grant Brandley a new trial. Then he went a step further. “The testimony … unequivocally establishes,” he said, “that Gary Acreman and James Dexter Robinson are prime suspects and probably were responsible for the death of Cheryl Dee Fergeson.”
The court sat on the case for fourteen months while Brandley languished in prison. On December 13, 1989, a sharply divided court accepted Judge Pickett’s recommendation and ordered a retrial. The prosecution, in its relentless insistence on Brandley’s guilt, announced it would appeal to the US Supreme Court. Free on bail after spending nine years on death row, Brandley waited another ten months for a final disposition of his case. On October 1, the Supreme Court denied the state’s request for certiorari, which would have mandated further review of the case, and Brandley’s ten-year ordeal was finally over. No disciplinary action was ever taken against the officials who played a role in his conviction.
Michael Graham and Albert Burrell
Louisiana
Decades ago, before substantial reforms were made, the name Angola had the same forbidding ring of finality that Alcatraz and Sing Sing had generations earlier. Officially named Louisiana State Penitentiary, Angola was known in the world of crime and penology as one of the toughest, dead-end destinations in the country. Its death-row cells, measuring six-by-nine feet, more closely resembled the cages used to house animals at a zoo, except those cages were generally a bit more spacious. It was in such cells that Michael Graham and Albert Burrell spent twenty-three hours a day every day for thirteen years for a crime they did not commit after a trial in which the state presented no credible evidence.
Graham and Burrell were charged with shooting to death an elderly couple, William and Callie Frost, in their home in Union Parish, Louisiana, on August 31, 1986. The only evidence against them was the testimony of two witnesses, neither of whom could put the suspects anywhere near the scene at the time of the crime. The first, Burrell’s ex-wife, Janet, triggered the investigation with a call to Sheriff Larry Averitt. She told the officer that she had met with Burrell on a deserted road the night of the murder and found a wallet on the car seat. It contained William Frost’s identification documents but no money. Burrell then took out his own wallet, she said, and counted out twenty-seven $100 bills and told her he had killed the Frosts. The second witness was a jailhouse snitch named Wayne Brantley who said he heard both Burrell and Graham confess to the murders while they were being held. There was no other evidence of any kind. Yet Burrell and Graham were convicted in separate trials and each was sent to Angola’s death house.
With death in the electric chair drawing nearer and revelations continuing to surface nationally that many death-row inhabitants did not belong there, the cases of Burrell and Graham attracted the attention of a number of criminal attorneys. Nick Trenticosta, a New Orleans lawyer, took on Burrell’s appeal free of charge and added to the defense team Chuck Lloyd, an attorney from Burrell’s home town of Minneapolis. The burden of seeking to clear Graham was assumed pro bono by Michele Fournet.
Working independently, the two lawyers learned fairly soon that the state had had no case worth presenting. Burrell, who was mentally retarded and unable to read or write, was clearly incapable of assisting in his own defense and should not have been forced to stand trial. They also discovered that the testimony of the state’s two witnesses was worthless.
Burrell’s wife admitted that she had made up the story, hoping that if Burrell were arrested she could gain sole custody of their son. She signed an affidavit stating, “What I told the police was not true.” The testimony of the jailhouse snitch, Olan Wayne Brantley, was found to be no more reliable. Brantley, it was learned, had a reputation for falsely implicating others in crimes they knew nothing about. In at least two previous cases, he testified that he had overheard the suspects confess. A law-enforcement official acknowledged that Brantley was known as Lyin’ Wayne. Brantley’s behavior could be better understood in light of the fact that he had a history of mental illness. Although it was never revealed to the defense, he had admitted at his own trial that he had spent time in several mental hospitals where he was treated for manic depression. He also said he had written more bad checks than he could keep track of. On top of it all, Brantley had made a plea deal on unrelated charges he was facing, and that bit of information had not been passed on to the defense.
In March 2000, District Judge Cynthia Woodard threw out the convictions and sentences and ordered a new trial. Judge Woodard cited the incidents of prosecutorial misconduct and also noted that Dan Grady, one of the prosecutors, had said the case against Burrell and Graham was “so weak that [it] should never have been brought to the grand jury.” Prosecutors for the attorney general’s office, which assumed control of the case when the Union Parish district attorney voluntarily withdrew, said they found a “total lack of credible evidence” connecting the men with the crimes.
On December 27, 2000, the state attorney general’s office filed documents with the state district court in Union Parish dismissing all charges against the men. In making the announcement, Pam Laborde said, “We have no physical evidence in this case, and that has been the problem from the start.” The attorney general reopened the investigation of the shootings, noting there was a “very real possibility that someone else committed the murders.”
After the charges against Burrell and Graham were dropped, a DNA test showed that blood taken from the doorjamb of the Frosts’ home belonged to the victims. There was still no physical evidence that put Burrell or Graham at the scene. The trial attorneys appointed to represent Burrell were later disbarred for other reasons and sent to federal prison. The former sheriff of Union Parish also received a prison term on charges that he stole from his office. According to Michele Fornet, Graham’s lawyer, the kind of prosecutorial misconduct found in the case was not unusual. “It is a problem inherent in the criminal justice system,” she said.
When they were released from prison, Burrell and Graham were each given a denim jacket several sizes too large and the standard ten-dollar check the state tenders for transportation. Burrell was picked up by his stepsister in a pickup truck and taken to her small ranch in East Texas. Graham, who worked as a roofer before going to prison, headed for his mother’s home in Roanoke, Virginia. His ticket home on a Greyhound bus was paid for by his attorney. It cost $127. As for the ten dollars the state gave him, Graham told a reporter for The New York Times that he thought about framing it, but decided to put it to better use. When the bus made a stop in Atlanta, he cashed it and gave it to a panhandler.
Joaquin Martinez
Florida
The case of Joaquin Martinez was no ordinary legal proceeding. It attracted the attention of the Pope, the King of Spain, and the Spanish government. Martinez, a Spanish national, was convicted in 1997 of murdering a young couple—Douglas Lawson and his girlfriend, Sherrie McCoy-Ward—in their home in Clair Mel, just east of Tampa, Florida. When he was sentenced to death, Martinez became a cause célèbre in the Spanish media in Miami and in Spain, which does not have the death penalty. The convicted man’s mother, Sara Martinez, met with King Juan Carlos and asked him to intervene. Spanish Prime Minister Jose Maria Aznar spoke out in Martinez’s behalf. Pope John Paul II appealed for his life to be spared. Hundreds of thousands of dollars were raised to pay for his defense on appeal and, as it turned out, for a new trial.
Lawson had been shot several times with a 9mm pistol. McCoy-Ward was shot and stabbed more than twenty times as she ran to the front door trying to escape. There was little that linked Martinez to the crime except that he and Lawson had once worked together at a warehouse. It was Martinez’s ex-wife, Sloane, who implicated him.
When police searched the crime scene, they found a phone list that included a pager number for someone named Joe. They called the number several times and left messages. Finally, Sloane returned the call and explained to police that she had Martinez’s pager. She said that she had suspicions that her ex-husband might have committed the murders. Cooperating with the authorities, Sloane secretly recorded a conversation with Martinez at her home, during which he was said to have made “several remarks that could be interpreted as incriminating.” The tape of the conversation, which was barely audible, was allowed in as evidence. Martinez’s girlfriend testified that he had gone out on the night of the murders and returned with a swollen lip and scraped knuckles, looking as though he had been in a fight. With no clear-cut motive for the crime, the prosecution contended that Martinez had gone to the victims’ house to buy marijuana. It was not much of a motive, and the prosecution’s entire case seemed to rest on the testimony of a woman the defense portrayed as a vengeful ex-wife and on a tape that was at best suggestive.
Nonetheless, Martinez was convicted and in the end might have been executed were it not for the misstatement of one of the state’s witnesses. Under direct examination, a police detective told the jury he thought the defendant was guilty. The prosecutor repeated the statement in his closing argument. Because of the improper statements, the Florida Supreme Court overturned the conviction and sentence and ordered a new trial.
The state’s case was even weaker the second time around. A critical blow to the prosecution came when Circuit Court Judge J. Rogers Padgett ruled the taped conversation between Martinez and his ex-wife was inaudible and therefore could not be introduced as evidence. Furthermore, the transcript of the tape, which had been used for clarification during the first trial, was excluded when it was revealed that it had been prepared by Lawson’s father, who was the evidence manager for the Hillsborough County Sheriff’s Office. The pool of witnesses also had shrunk during the four years since the first trial. One witness had died, another now refused to cooperate, and the prosecution’s star, Sloane Martinez, had changed her story to the point where it was of little use to the state.
It took the jury just two hours to acquit Martinez. The verdict was broadcast live in Spain. The Spanish Prime Minister welcomed the news, saying, “I’m very happy that this Spaniard was declared not guilty. I’ve always been against the death penalty and I always will be.”
Juan Roberto Melendez
Florida
Juan Roberto Melendez, born in Brooklyn and raised in Puerto Rico, was sent to Florida’s death row in 1984 for the murder of a beauty school owner who was found shot to death in his Auburndale, Florida school on September 13, 1983. His appeals were denied and the sentence upheld, but Melendez continued to protest his innocence, and in 1988 he secured the services of an important ally. His case was taken by the Capital Collateral Representative (CCR), a public defender for those who have been sentenced to death in the northern region of Florida. CCR intervenes after the death sentence and conviction have been affirmed on direct appeal.
According to Rosa Greenbaum, who assumed responsibility for the Melendez case in 2000, “The next stage is referred to as post-conviction and, unlike direct-appeal attorneys, we are allowed to bring up non-record violations such as the withholding of exculpatory evidence and newly discovered evidence.” Greenbaum found such evidence to be in no short supply, and much of it had been withheld by the state. She also discovered that the testimony of the prosecution’s two key witnesses lacked any vestige of credibility.
The beauty school owner, Delbert Baker, had been shot three times, his throat had been cut, and the expensive gold jewelry he was wearing had been taken. Early in 1984, a man by the name of David Falcon contacted Florida law-enforcement officials and said he knew who killed Baker. Melendez’s defense team gave the following account of the events that ensued, as reported by Bill Berkowitz on the Working for Change website:
“Falcon aspired to become a confidential informant for local law enforcement officials and he also held a personal grudge against Juan [Melendez]. Falcon claimed Juan had confessed to the killing, but he did not know basic details, such as where the crime had occurred. Falcon also implicated … John Berrien [who] was picked up and, after being threatened with the death penalty, told multiple stories riddled with inconsistencies and inaccuracies. Berrien finally wove a tale that was acceptable to authorities, saying he had driven Juan to the beauty school around the time of the killing.
“According to Berrien, Juan had been armed with a .38-caliber firearm that day and later described jewelry he’d taken in the robbery. Berrien also claimed [that] his cousin, George Berrien, had gone into the school with Juan that day. No weapon or jewelry was ever recovered. No physical evidence was found in Berrien’s car, in which Juan and George had allegedly made their escape from the blood-deluged crime scene. George Berrien denied his cousin’s story, testified on behalf of Juan’s defense, and this supposed co-perpetrator was never even charged. John Berrien was sentenced to two years of house arrest as an accessory to first-degree murder after the fact.”
Falcon and Berrien were the key witnesses for the state when Melendez went on trial in September 1984. Melendez’s only defense was that there was no physical evidence linking him to the crime and a girlfriend who testified that she was with him at the time. The jury chose to believe the two prosecution witnesses. Melendez was convicted and sentenced to death.
Some critical evidence in Melendez’s favor surfaced about a month before the trial, but the defense was unable to use it. Another man, Vernon James, had confessed to being implicated in the murder, and a tape-recorded confession was made in the presence of Melendez’s investigator and attorney. In his statement, James admitted “he had been at the beauty school when Baker was murdered by two other men and … that Melendez had not been anywhere near the scene of the crime.” Despite the existence of the tape, James invoked his Fifth Amendment right against self-incrimination when he was called to the witness stand. The taped statement then was considered to be hearsay evidence and was never shown to the judge or jury. It was, however, turned up by Rosa Greenbaum, and it became the cornerstone of her appeal that finally led to Melendez’s conviction being reversed.
Greenbaum contacted the trial defense investigator, Cody Smith, and the defense attorney, Roger Alcott. They eventually found the transcript of the tape. State Attorney Hardy Pickard said he had been in possession of the transcript since the original trial. The defense also produced a dozen witnesses at two separate hearings who testified that James had made incriminating statements to them regarding his involvement in the murder and had indicated again and again that the wrong man was convicted of the crime.
Circuit Court Judge Barbara Fleischer, who heard the appeal, also found that John Berrien’s trial testimony repeatedly contradicted the sworn statement he had given to the prosecutor during an interview and that the prosecutor had failed to disclose the out-of-court statement to either the defense or the jury. In addition, the judge determined that the state had misled the jury when it said Falcon had nothing to gain by testifying. In fact, charges that Falcon had broken into a residence had been dropped in exchange for his testimony.
In overturning the conviction, Judge Fleischer noted that the evidence that was withheld supported the defense’s theory that another man committed the murder. She said that if the state wanted to keep Melendez in prison it must try him again and pointed out that the new evidence “seriously damaged” the state’s case. Indeed it did. Berrien had lost all credibility, and Falcon and James had both died during the seventeen years Melendez spent on death row. The state agreed to drop the charges, and Melendez was finally released.
In summing up, Rosa Greenbaum said: “The important thing to remember is that this outcome does not show that the system works, as death penalty supporters might claim. If not for a courageous judge, witnesses who selflessly showed up and told the truth, the simple dumb luck of locating the taped confession of Vernon James after all these years, and the surprising fact that James told lots of people what he’d done, this story would likely have a very different ending.”
Kerry Cook
Texas
The name Kerry Cook does not appear on any of the lists of innocent people released from death row, although he clearly belongs near the top of the register. Cook served almost twenty years on death row, wrongfully convicted of murder, but he was not officially exonerated until two years after he pleaded no contest in a deal that restored his freedom.
In 1978, Cook, who was twenty-two years old and living in Tyler, Texas, was arrested for the murder of Linda Jo Edwards, an acquaintance who lived in the same apartment complex. Edwards was a college student and was having an affair with her married professor. Cook had been invited into her apartment once and had left a fingerprint on a sliding glass door.
Three months after Cook had met with her, police stormed the club in which he worked as a bartender and arrested him, despite the weight of evidence that implicated the victim’s much older, married boyfriend. Investigators theorized that, since the well-known nightspot had a largely gay clientele, Cook was a “degenerate homosexual” who hated women and had brutalized the body of the victim. At his trial, a fingerprint expert testified that he could date Cook’s fingerprint to be twelve hours old when the body was discovered, placing him in the apartment at the time of the murder. The testimony went unchallenged although it is scientifically impossible to date a fingerprint. The only other evidence offered by the prosecution was the testimony of an eyewitness who said she had seen Cook in Edwards’s apartment and that of a jail inmate, Eddie “Shyster” Jackson, who said he heard Cook confess. Cook was found guilty and sentenced to death.
In 1988, the US Supreme Court ordered the Texas court to review its decision just eleven days short of Cook’s execution date. His conviction was overturned in 1991, and his retrial a year later ended in a hung jury. In 1993, a state district judge ruled that prosecutors had engaged in systematic misconduct, suppressing key evidence, and in 1994 Cook was tried a third time. This time he was convicted and again sentenced to death. But the system continued to grind away.
On November 6, 1996, the Texas Court of Criminal Appeals reversed the conviction, saying that “prosecutorial and police misconduct has tainted this entire matter from the outset.” The court also ruled that key testimony from the 1994 trial could not be used in any further prosecution. A fourth trial was scheduled for February 1999. However, concerned about the possibility of yet another wrongful conviction, Cook accepted a deal. He pleaded no contest to a reduced murder charge, was sentenced to time served and released.
It was later learned that the eyewitness had originally identified Edwards’s professor as the man she saw in the apartment, but she then changed her testimony and named Cook. Jackson, the jailhouse informant, recanted his testimony entirely. The fingerprint expert admitted it was impossible to date a fingerprint and said he had been coerced into testifying as he did by the district attorney’s office. Most importantly, DNA tests conducted two years after Cook’s release showed that the semen found on the victim matched the professor’s, not Cook’s.
Since his release, Cook has married and became the father of a son. The boy is named Kerry Justice. “After twenty-three years,” Cook says, “Justice has finally arrived.”