Eyewitness Error & False Accusation
THE PLAYFULLY CYNICAL injunction that you should believe nothing you hear and only half of what you see has its purchase on truth in the criminal justice system. False eyewitness testimony is considered the principal cause of wrongful convictions in United States courts.
There are, of course, several types of eyewitness error, from simple cases of mistaken identification to perjured testimony or some other form of official misconduct. It is difficult to counter mistaken identification offered in good faith by a witness who actually saw the accused. But even when the sole intent of the witness is to abet the judicial process, eyewitness accounts have been found to be generally unreliable. The original identification is often made under unfavorable conditions: the witness was likely to be a good distance away from the accused who was possibly shrouded in darkness; the glimpse of the suspect was more often than not a fleeting one, perhaps no more than a second or two; and observations made in extreme circumstances, when adrenaline is running high, tend to be untrustworthy. When a defendant is convicted solely on the basis of such testimony, the possibility of error is exceptionally high.
While mistaken eyewitness testimony, even if offered honestly, freely, and with good intent, can nonetheless send innocent people to prison, testimony that is perjured or compelled can appear to a jury to be even more convincing, for it is likely to have been crafted carefully and well-rehearsed. The eyewitness or first-hand evidence offered by criminal informants in exchange for considerations such as reduction of sentence or the imposition of lesser charges is always, at best, questionable. Jailhouse snitches in search of privilege, co-defendants hoping to slip the noose themselves, or suspects looking to point the finger in other directions are all hazardous to the prospect of justice being done in a court of law. Equally hazardous is testimony prompted by agents of the prosecution—police or attorneys—eager to nail down a conviction by squeezing a witness to alter, if not fabricate, the story they tell the jury.
The Center on Wrongful Convictions recently studied eighty-six cases in which defendants sentenced to death were exonerated on claims of actual innocence (rather than on the basis of judicial error or circumstances involving prosecutorial or police misconduct) since the US Supreme Court’s 1972 decision restoring capital punishment. Eyewitness testimony played a part in forty-six convictions and was the only evidence against thirty-three defendants. In thirty-two cases, only one eyewitness testified. The eyewitnesses were strangers to nineteen defendants and in nine other cases were acquainted with the defendant but not accomplices. Fifteen of the eyewitnesses were in some way accomplices of the accused, and they all had incentives to testify, ranging from full immunity to leniency in sentencing. In five cases, a non-accomplice witness received consideration from the prosecution in a pending case. In four other instances, the false testimony appeared to have been motivated by a grudge, and in another the eyewitness and the defendant formed two sides of a love triangle.
The vulnerability of eyewitness testimony became the focus of national attention in 1998 when Anthony Porter was freed from Illinois’ death row following an investigation into his case by Lawrence C. Marshall and David Protess, both law professors at Northwestern University Law School, and a cadre of journalism students at the university’s Medill School of Journalism. Further investigations led to eight other innocent men on death row being released, and a nationwide drumbeat began calling into question the merits of a system of capital punishment that condemns innocent people to death. If a class of journalism students led by two law professors was so readily able to uncover the wrongful convictions and death sentences meted out to nine men, how many others awaiting execution might also be innocent? Indeed, Anthony Porter was just fifty hours away from being put to death. For how many others did time run out?
Anthony Porter
Illinois
The funeral arrangements had been made and Anthony Porter was counting down the hours of life he had left. He was scheduled to die in an Illinois death house on September 23, 1998. The stay of execution came two days earlier, but another five months would pass before he was released. He had spent more than fifteen years on death row.
The trouble began for Porter when two teenagers—Marilyn Green, nineteen, and Jerry Hilliard, eighteen—were shot to death in the bleachers overlooking a swimming pool on the South Side of Chicago late on an August night in 1982. William Taylor, who had been swimming in the pool at the time, was among those interviewed by police immediately after the shooting. Taylor first told them he had not seen who did the shooting, but at the station house he said he recalled seeing Porter running right after he heard the shots. Another seventeen hours of questioning elicited the statement that he actually had seen Porter shoot the pair.
Porter, who was known to belong to a South Side street gang, was a likely enough suspect. There were others, perhaps even more likely. The mother of the female victim, Ofra Green, told the police she suspected a man by the name of Alstory Simon, who had been feuding with Hilliard over drug money. Mrs. Green also said she had seen Simon and his wife, Inez Jackson, with the victims not long before they were killed. Questioned by police, the couple said they had not been in the park that night. A few days later, they moved to Milwaukee.
On no evidence other than Taylor’s eyewitness account, Porter was charged with the double murder. His family opted to retain a private attorney rather than employ a public defender, believing it would give Porter a better chance of acquittal. It was a decision that might have cost Porter dearly. The lawyer, Akim Gursel, was to be paid $10,000 for his services. However, he never received the full payment and Gursel later said he cut short his investigation of the case due to lack of funds.
The trial, which began in September 1983, did not go well for the defendant. Gursel fell asleep at the defense table at least once, and the judge had to wake him up. The defense called only two alibi witnesses and a photographer who had taken aerial shots of the park in which the shooting took place. The jury deliberated for nine hours and returned a verdict of guilty.
With a possible death sentence on the table, Gursel waived Porter’s right to have the jury decide the sentence and left it to the judge. Sentencing hearings in Illinois are carried out in three phases. During the first phase it is determined whether the convicted man is eligible for the death penalty; the second is devoted to a consideration of mitigating circumstances; and the third is for sentencing. After phase one, in which the judge decided Porter was eligible for execution, Gursel informed the judge, Robert L. Sklodowski, that one of the jurors attended the same church as Marilyn Green’s mother. The juror had failed to disclose that bit of information during voir dire, and, armed with this revelation, Gursel now moved for a mistrial. As the jury had not yet been dismissed, Sklodowski questioned the juror about her relationship with the victim’s mother and why she had not made it known to the court. The juror told the judge that she did not realize she knew Ofra Green until the trial was under way, but that it made no difference to her. That satisfied the judge, and he denied the motion for a retrial. The next day, Sklodowski found nothing to mitigate his final judgment and sentenced Porter to death.
Gursel appealed the verdict to the Illinois Supreme Court on the grounds that Porter had been denied a fair trial before an impartial jury. In February 1986, the court denied the appeal by a vote of four-to-three. The majority opinion noted that the juror in question did not realize she knew the victim’s mother until after the trial began and therefore it was not likely that their relationship was very close. In separate dissenting opinions, one judge maintained there was no basis for the majority’s speculating on the closeness of the relationship. The second dissent found that the judge’s questioning of the juror had been leading and too brief to assess the relationship between the two women.
Porter carried his case to the US Supreme Court where he petitioned for a writ of certiorari which would have ordered the state court to submit the case to the higher court for review. The petition was denied, with dissents from Justices Thurgood Marshall and William Brennan who wrote that the state court had erred in requiring the defendant to bear the burden of showing actual prejudice when the probability of bias appeared to be substantial.
Porter then filed a post-conviction petition claiming he had not had the benefit of effective counsel since Gursel failed to locate and summon four witnesses who could have suggested that Alstory Simon and Inez Johnson actually committed the murders, thereby raising reasonable doubt about Porter’s guilt. When his request for relief was turned down, Porter petitioned for a federal writ of habeas corpus which would have referred his case for review by a federal court. The US District Court denied the request, and that decision was affirmed by the US Court of Appeals for the Seventh Circuit.
Porter’s case had been grinding through the judicial machinery for twelve years, but it now appeared he had reached the end of the line. When the Court of Appeals handed down its decision, on March 23, 1998, his execution was set for December 23. The nine-month time period proved to be salvation for Porter.
A volunteer Chicago lawyer, Daniel R. Sanders, entered the case and had Porter’s IQ tested. It was measured at 51, which by all standards meant Porter was mentally retarded. Execution of the mentally retarded was legal in Illinois at the time, still several years before the US Supreme Court ruled it unconstitutional. Nevertheless, with the execution date fast approaching, Larry Marshall and three other pro bono attorneys filed a last-minute petition with the state supreme court, contending that Porter was incapable of comprehending the nature of his punishment and therefore should not be put to death. Two days before he was scheduled to die, the court granted a stay of execution and ordered the Cook County Circuit Court to hold a competency hearing to determine whether Porter was capable of understanding the consequence of his fate.
At this point, Protess and his students, along with Paul Ciolino, a private investigator, began their investigation. The first break came in December when William Taylor, whose eyewitness testimony had doomed Porter, recanted and told Ciolino and one of the students that he had not seen him commit the crime. He said in an affidavit that police had pressured him to name Porter as the shooter. On January 29, 1999, Inez Jackson, now separated from her husband, gave him up. She told Protress, Ciolino, and two students that she was present when Alstory Simon shot Green and Hilliard. Four days later, Simon gave Ciolino a videotaped confession in which he claimed to have killed Hilliard in self-defense during a disagreement over drug money. He said the shooting of Green had been accidental.
Porter was released from prison on a recognizance bond on February 5, and he was cleared of all charges a month later. In September 1999, Alstory Simon pleaded guilty to two counts of second-degree murder. He was sentenced to thirty-seven and a half years in prison.
Porter’s exoneration was the first of at least nine that resulted from investigations by Protess and his student team. The effects of their efforts have already been massive, and the likelihood is that they have just begun to be felt. In January 2000, one year after Porter walked free, Governor George Ryan imposed a moratorium on all executions. In October 2002, capital punishment was put on trial in Illinois. Clemency hearings, coordinated by the Center for Wrongful Convictions, were ordered for 142 of the 158 prisoners on death row. Experts on witness identification, false confessions, and other causes of wrongful conviction were flown in from California, New Mexico, and Texas. Some three hundred lawyers prepared briefs to be presented. A few months later, Governor Ryan would make headlines by emptying Illinois’s death row.
Executing the mentally retarded had already been taken off the table by a US Supreme Court decision in the spring of 2002 in which the majority noted that a shift in public attitude over the past decade or more had rendered executions of the retarded cruel and unusual punishment. Prompted by events in Illinois, other states have begun to examine the manner in which they apply capital punishment and the likelihood that it results in the execution of innocent people. It is not possible to estimate how many have been unjustly sent to their death. But the probabilities obviously increase as the total number of executions rises.
Rudolph Holton
Florida
The flimsy nature of eyewitness testimony was plainly visible in the case of Rudolph Holton. Holton was convicted of murder and sentenced to death based almost entirely on the identification of two eyewitnesses, both of whom later recanted their testimony and were convicted of perjury.
The victim was Katrina Ann Graddy, a seventeen-year-old drug addict and prostitute who was raped, strangled, then set on fire in an abandoned crack house in the Central Park Village housing project in Tampa, Florida in June 1987. A neighbor told police he saw thirty-three-year-old Holton enter the house with a girl at 11 p.m. on the night of the murder. When they searched the premises, police found a pack of cigarettes containing Holton’s fingerprints. Holton, no stranger to the police, seemed a viable suspect. He was a known drug addict with a $1,000-a-day habit and a record of more than two dozen arrests and thirteen convictions for theft and burglary. However, he had no record of violent behavior.
When detectives first interviewed him, he lied about being in the drug house. When they told him about the fingerprints, he said they could not have been his. In both instances, he was lying, but it was hardly enough to warrant his conviction for murder. Scores of drug users, including Holton, used the house and placing him at the scene was largely irrelevant. It was the flawed testimony of witnesses that sent him to death row for sixteen years. Carrie Nelson, a resident of the drug house said she saw Nelson at the scene on the night of the crime. She said she knew Holton because he had robbed her four times. Another witness, Johnny Lee Newsome, also put Holton at the scene. Yet a third, Flemmie Birkins, an inmate at Hillsborough jail who had known Holton from the streets, testified that he admitted having committed the crime. On June 30, 1987, a jury convicted Holton of murder and he was sentenced to death. The only physical evidence introduced by the prosecution was several pubic hairs found in the victim’s mouth which could have been Holton’s.
Gradually, all the evidence against Holton began to unravel. DNA testing showed that the hairs could not have been his. Elease Moore, a friend of Nelson’s, said she had invented her story in order to get even with Holton for the robberies. Newsome, who was on probation, acknowledged that he did not see Holton that night. He said he lied as an accommodation to the police to keep them from investigating him further.
As for Birkins, he also admitted that he had invented his story. “I was scared,” he said. “I thought the police would get me for something I was doing. I told [the detective] what he wanted to hear. I used it to my advantage.” Police records that were found later corroborated Birkins’s recantation. They showed that at precisely the same hour Birkins claimed Holton was confessing to him at the jail, he was being interviewed by detectives at the Tampa Police Department. Birkins, it turned out, had reason enough to fabricate his story. Although prosecutors told the jury he was given nothing in exchange for his testimony while he awaited trial on charges of burglary and grand theft, subsequent events suggested otherwise. After the prosecutor asked the judge for leniency, Birkins was given probation when he could have received a life sentence as a habitual offender. The defense was never told of the deal.
With the evidence against Holton all but shredded, a Florida judge granted him a new trial in 2001. But the state was of no mind to retry the case. Holton was released on January 4, 2003 after spending sixteen years on death row. He was awarded $100 for his inconvenience. Birkins and Newsome both pleaded guilty to perjury. Birkins was sentenced to thirteen years in prison and Newsome to a fourteen-year term.
Post-prison life did not seem to suit Holton well. Shortly after his release he married a woman he had met just a few months earlier. A year later, he pleaded guilty to aggravated battery for striking the woman with a golf club and to misdemeanor assault for a confrontation with a cousin of his. He was sentenced to two years in prison. It got worse. In 2006, Holton was convicted of attempted murder and domestic battery for choking his wife. This time his sentence was twenty years.
John Thompson
Louisiana
Right from the start, it was a bumpy road for John Thompson. It began with a false accusation, moved ahead with identification error, and proceeded through a quagmire of prosecutorial misconduct that found its way to the United States Supreme Court. Yet, against all probability, his story had a happy ending.
The improbable tale began shortly after midnight on December 6, 1984, when Raymond Liuzza was shot several times in the course of a robbery just around the corner from his apartment in New Orleans. Liuzza was still alive and conscious when the police arrived. Before being rushed to a hospital, where he died soon after arrival, he identified the man who robbed and shot him as an African American male. Two days later, acting on a tip from a man named Richard Perkins, police arrested Thompson, a twenty-two-year-old father of two, and Kevin Freeman, an acquaintance of his. The New Orleans Times-Picayune published photos of the two men and they soon received a call from a family saying that Thompson looked like the man who had hijacked their car and robbed them several months earlier. On that identification alone, the police charged Thompson with both the carjacking and the murder. Compounding matters, Freeman came forth and told police that he was with Thompson when they robbed and shot Liuzza but that it was Liuzza who pulled the trigger. Freeman agreed to testify against Thompson in the murder trial if prosecutors charged him only as an accessory. He was eventually tried, convicted, and sentenced to five years in prison.
New Orleans District Attorney Harry Connick Sr. decided to try Thompson on the carjacking charge first, reasoning that a prior felony conviction would help his case in the murder trial. Based almost entirely on the testimony of the three carjacking victims, Thompson was convicted and sentenced to forty-nine years. In the murder trial, which began right on the heels of the hijacking conviction, the prosecution showed that Thompson had at one time been in possession of both the murder weapon and a ring that had been taken from Liuzza’s finger. As Connick had calculated, Thompson declined to take the stand in his own defense because that would have enabled the prosecution to bring his previous conviction to the attention of the jury. He therefore forfeited the opportunity to explain that Freeman had sold him the gun and the ring. Freeman, in turn, now became the prosecution’s chief witness. He testified that he and Thompson had acted together in the robbery of Liuzza but that it was Thompson who had shot him. Perkins, who had called in the original tip, also was a witness for the prosecution, testifying that he had heard Thompson make incriminating remarks. For the defense, several eyewitnesses claimed they had seen only one man running from the scene of the crime. But that made little impression on the jury. They voted with the prosecution. Thompson was found guilty and was sentenced to be executed in May 1985.
Over the next fourteen years, Thompson’s attorneys filed a succession of appeals, but all were denied. By 1999, the appeal process was exhausted and an execution date was set for May. But, with just thirty days remaining, things finally turned in Thompson’s favor. An investigator discovered that there was a blood stain, apparently from the robber, on the clothing of one of the carjacking victims. This piece of evidence had never been brought to the attention of the defense. Worse yet, the prosecutors had rushed to have the blood tested, but when it was found to be different from Thompson’s, they chose to conceal it entirely. With this new bit of information in hand, defense attorneys obtained an affidavit from a former district attorney stating that a prosecutor in the case had admitted to intentionally suppressing the blood evidence. Thompson’s attorney also discovered that Perkins had received $15,000 from the Liuzza family as a reward for identifying Thompson as the killer. Given the new evidence, the trial judge granted a stay of execution and dismissed the carjacking conviction but denied Thompson’s motion for a new trial on the murder charge. He did, however, reduce his death sentence to life in prison without parole.
Two years later, the outlook grew even brighter for Thompson. In July 2002, the Louisiana Fourth Circuit Court of Appeals overturned his murder conviction and remanded the case for retrial. The court ruled that Thompson was “denied his right to testify in his own behalf based upon the improper actions of the State in the other case.” The court further noted that it was “the State’s intentional hiding of exculpatory evidence in the armed robbery case that led to [Thompson’s] improper conviction in that case and his subsequent decision not to testify in the instant case because of the improper conviction.”
At the second trial, Thompson took the stand and told the jury that he had not fired the fatal shots and that he had purchased the murder weapon from Freeman after Liuzza had been killed. The defense called several new witnesses who said they had seen only one man fleeing the scene of the murder. They also testified that the man did not look like Thompson, but he did resemble Freeman. Freeman was not around to challenge their stories. He had been killed in a shootout with a security guard while in prison. In May 2003, a jury acquitted Thompson after only thirty-five minutes of deliberation. He was freed the same day after serving eighteen years in prison, fourteen of them on death row. Upon his release, he was given ten dollars and a bus ticket.
Thompson sued the district attorney’s office, headed by Harry Connick Sr., and in 2008 he was awarded $14 million—one for each year spent on death row—by a federal court jury. The jury found that Thompson’s years behind bars “were caused by Connick’s deliberate failure to train his prosecutors on their obligations to turn over exculpatory evidence.” The DA’s office appealed the decision and the case was orally argued before the US Supreme Court in Connick v. Thompson. On March 29, 2011, the court, voting 5-4 along ideological lines, overturned the award. Writing for the majority, Justice Clarence Thomas said that the misconduct in the case was not the result of a deliberate policy of systematic indifference by the New Orleans district attorney’s office. Justice Ruth Bader Ginsburg disagreed. In her dissent, read from the bench, she noted that Connick’s office had in fact committed a pattern of violations, failing to disclose exculpatory blood-type evidence, audio tapes of witness testimony, a deathbed confession about the destruction of evidence by the prosecuting attorney Gerry Deegan, and eyewitness identification of the killer that did not match Thompson. In the end, Thompson received $330,000 in state compensation. Justice Ginsburg was not alone in her view. According to the Innocence Project of New Orleans, Connick’s office has withheld evidence favorable to the defense in at least nine death-row cases. Four of the cases were overturned because of the misconduct.
The happy epilogue to Thompson’s story was chronicled by CNN in its series of Death Row Stories. When he was released, Thompson was on the cusp of middle age, with no education beyond the ninth grade. He had never used a cellphone or a computer and he knew it would take a while for him to equip himself to function in a world that was dramatically different from the one he left nearly two decades earlier. He also understood that there were thousands of others who faced the same challenge.
“Men come home and the system has nothing in place to help them put their lives back together,” he said. “They need to be reprogrammed because the survival tactics they learned in prison don’t work in the outside world.”
Thompson decided to do something about it. With the aid of his appellate attorneys, Michael Banks and Gordon Cooney, he started an organization called Resurrection After Exoneration, an education and outreach program that helps exonerated and formerly incarcerated inmates rebuild their lives. The organization also teaches participants how to tell their story so they can participate in community outreach efforts. He considers these essential to building empathy and understanding of the needs of inmates returning to society. “Like it or not,” he says, these people are going to be in the community; it’s society’s responsibility to help give them a fighting chance.”
Commentary: Fixing the System
“The criminal justice system is broken” has become the mantra of the judicial system and politicians of all persuasions. In all states, large and small, north and south, right-wing and left, there appears to be universal agreement that the system needs fixing. Then why, one might ask, is so little being done? The answer magnifies the difficulty of finding solutions: there is significant disagreement on what exactly needs to be fixed and in which direction lies the road to repair. Few candidates for office, regardless of what they really believe, are concerned that a hard-nosed law-and-order platform will cost them any votes. They appear to be more troubled by the possibility of a guilty man being turned loose than an innocent man being convicted. No serious candidate is eager to challenge the tough-on-crime legions that are ready to risk the lives of the innocent rather than be tagged “bleeding heart liberals.”
Yet there are some clearly defined areas in which agreement is both reasonable and safe. For example, rare is the corrections official or politician who is prepared to stake his claim on the benefits of solitary confinement. Its horrors and ineffectiveness have been well documented and, from the president on down through the ranks of the judicial hierarchy, the disposition to seal the solitary cells forever is clearly gathering force. The tightening of the process of interrogation also seems to be gaining favor among both sides of the issue. These and other such remedies— the fine-tuning of the grand-jury system, for one—might well be on the way to enactment in various states. But there are vast changes of a more sweeping nature that have come under consideration.
Faulty accusations and eyewitness testimony are by far the leading causes of errant convictions, but reform in that area would be complex and uncertain. Still, New York State has taken a few small steps in that direction. In June 2015, the State Bar Association of New York and the Innocence Project joined hands in an effort to reduce the chances that innocent people will be convicted on the basis of either false witness testimony or accusations. According to New York Times columnist Jim Dwyer, the proposals would require investigators to treat the testimony of witnesses and suspects as if they were just another kind of trace evidence subject to contamination.
“Witnesses,” Dwyer wrote, “would be shown photos of possible suspects by an investigator who was not handling the case, with the goal of eliminating even inadvertent hints or cues about the ‘right’ answer from detectives who might have a suspect in mind.
“Once an identification has been made, witnesses would be immediately asked how certain they were of their choice. Witnesses often become more confident over time, so a shaky choice at a police lineup hardens into concrete certainty at trial.”
Dwyer cites a review of 161 wrongful convictions which found that 57 percent of the eyewitnesses had not been certain during the initial identifications but had no hesitation when testifying much later during trials, according to Brandon L. Garrett, a professor at the University of Virginia School of Law. Gary L. Wells, a psychologist at Iowa State University, supports that finding. He says that uncertain witnesses who are given positive feedback such as “You did great” or “He’s a bad guy, we thought it might be him” also grow more confident about their choices.
Of course, such twists and turns lie primarily within the province of the states rather than the federal government. But the direction in which the views on capital punishment are moving is clear enough. In August 2015, the Connecticut Supreme Court ruled that the death penalty violated state constitutional bans on cruel and unusual punishment, the same criterion that is provided in the Eighth Amendment of the Bill of Rights. The decision made retroactive the three-year-old repeal of capital punishment in the state and spared the lives of eleven death row inmates whose convictions pre-dated the ruling against the death penalty. But state decisions often resonate at the federal level. Several US Supreme Court Justices, Stephen Breyer foremost among them, have indicated their opposition to capital punishment, and a number of cases likely to come before the court in its 2015–2016 term will test the depth of their convictions. In the meantime, an increasingly large number of inmates benefit from the changing mood of the country as well as the court. And when it comes to such matters, timing is everything.
Alan Gell
North Carolina
The timing was all wrong for twenty-year-old Alan Gell. He was tried, convicted, and sentenced to death for the murder of a man who was alive and well for at least a week after Gell was presumed to have killed him.
The story began on April 14, 1995, when Allen Ray Jenkins, a fifty-six-year-old truck driver was found dead in his home in Aulander, North Carolina. He had been shot twice in the chest with a shotgun. Jenkins had a record of having sex with underage girls and that became the focus of the police investigation. In July, three months after the body was discovered, police interviewed two fifteen-year-old girls—Shanna Hall, who was Gell’s girlfriend at the time, and Crystal Morris—both of whom were known to have gone to Jenkins’s home on occasion where their age did not prevent them from drinking. The girls were interviewed several times and the stories they told often conflicted. Eventually, they settled on a confession in which they said they had been accomplices with Gell in a plot to rob Jenkins. They said they carried out their plan on April 3 and, during the course of the robbery, Gell had shot and killed Jenkins. With little more than the testimony of the two girls, Gell was charged with first-degree murder, conspiracy to commit murder, armed robbery, and conspiracy to commit armed robbery. In exchange for their testimony, Hall and Morris were allowed to plead guilty to the lesser charge of second-degree murder for which they each received a sentence of ten years in prison. Gell was sentenced to death.
Gell, whose record was hardly spotless, had been in jail since June 25, having been found guilty of breaking a house-arrest sentence he had received for stealing a truck. At the 1998 trial, in addition to the testimony of the two girls, the prosecution offered the judgment of a doctor who testified that, given the decomposition of Jenkins’s body, it was likely he died around April 3. The date was critical because Gell had been either traveling or in jail for most of the first two weeks in April. April 3 was the only date on which Gell could have committed the crime. The jury found him guilty and the death sentence was imposed in Bertie County, Superior Court.
Gell’s initial appeal was denied in 1999, but three years later a state superior court judge found that prosecutors had withheld evidence favorable to the accused, including the eyewitness testimony of seventeen witnesses who said they had seen Jenkins alive as late as April 10. Jenkins’s brother, Sidney, as well as a neighbor, Mary Hunt, recalled seeing him on April 8. Edward and Margaret Adams reported seeing him on April 9 while out for a walk. Jenkins was seen as late as April 10 in Ahoskie by a former co-worker, a restaurant waitress, and a man who said he sold Jenkins a dozen herrings on that date. On the grounds of prosecutorial misconduct, Gell’s conviction was vacated and he was retried in February 2004. In addition to the eyewitness testimony regarding the date of Jenkins’s death, the defense played a tape recording of Morris saying she had to make up a story to tell to the police. Also, a doctor testified that due to the exceptionally high temperature in the house the body could have decomposed quickly and Jenkins could well have died as late as April 14. On February 18, Gell was acquitted on all charges and released.
Having spent six years behind bars, four of them on death row, Gell filed a lawsuit accusing the North Carolina State Bureau of Investigation of fabricating evidence and obstructing justice. In 2009, he accepted a settlement of $3.9 million.
The Gell case raised concerns about the manner in which the death penalty was applied in North Carolina. “If the attorney general’s office had had its way, Gell would be dead now,” said Rich Rose, a law professor at the University of North Carolina and an adviser to the school’s Innocence Project. “This case surely shakes the confidence of the people of North Carolina both in the state’s capital punishment system and in the people who administer it.”
Shortly after Gell’s exoneration, the North Carolina Coalition for a Moratorium was formed, a statewide group of organizations and individuals who support a temporary suspension of executions while the system of capital punishment was studied. Calling the Gell case a “travesty of justice,” David Neal, a spokesman for the Moratorium, said, “This is exactly why we need to take a step back, temporarily halt all executions, and figure out what is going wrong in these cases.”
The moratorium went into effect in 2007. Within the next two years, three innocent men—Jonathan Hoffman, Glen Edward Chapman, and Levon “Bo” Jones—were released from death row. Between 2007 and 2014, the murder rate in North Carolina steadily declined.
North Carolina
On December 11, 2007, capital murder charges against Jonathan Hoffman were dismissed and he was set free from death row, eleven years after he was convicted of fatally shooting Danny Cook in his jewelry store in Marshville, North Carolina. Hoffman had been arrested in January 1996, on the basis of an anonymous tip. There was no physical evidence connecting him to the crime. He was sentenced to death on the testimony of several witnesses, the most persuasive being his cousin, Johnell Porter, who said Hoffman had confessed to him that he had committed the murder. A second witness was a folk healer who claimed he had sold Hoffman a special root that would keep him from being arrested. On no more convincing evidence, Hoffman, an African American, was tried and convicted by an all-white jury and sentenced to death in November, 1996. On appeal, he argued that the prosecution’s selection of the jury involved racial discrimination, but the court affirmed his conviction.
Hoffman’s attorneys then played their trump card. They leveled a charge of prosecutorial misconduct. At a hearing in 2004, they introduced newly discovered evidence that Porter’s testimony had been bought and paid for. In exchange for his testifying against his cousin, they said, Porter had received thousands of dollars in cash and immunity from federal charges that were pending against him. All of this had been concealed from the defense.
It took little imagination to contemplate prosecutorial misbehavior on the part of Hoffman’s prosecutors, Ken Honeycutt and Scott Brewer. When Honeycutt was the district attorney in Union County, he often came to court wearing a gold lapel pin shaped like a hangman’s noose. Similar pins were awarded to assistant DAs who won death penalty cases. Both Honeycutt and Brewer were later criminally and civilly investigated for not revealing the deals promised to Porter.
The trial court ordered a new trial. In March 2006, while Hoffman awaited his retrial, Porter recanted his testimony. He said he invented the story because he wanted to even the score with Hoffman for stealing money from him. Nearly two years later, the district attorney dismissed all charges against him and Hoffman was released in December 2007.
Joseph B. Cheshire, V, one of Hoffman’s lawyers, said, “The release of Jonathan Hoffman continues the exposure of a pattern of wrongful prosecutions and convictions in North Carolina.” He went on to say that “these miscarriages of justice continue to undermine public confidence in our criminal justice system and make our citizens wonder how many other people are wrongfully imprisoned in our state.”
Glen Edward Chapman
North Carolina
The “pattern of wrongful prosecutions and convictions in North Carolina” continued for a time even as the Coalition for a Moratorium morphed into the NC Coalition for Alternatives to the Death Penalty. Just four months after Hoffman was exonerated, Glen Edward Chapman was set free after spending nearly fourteen years on death row.
Chapman was convicted in 1994 of the murders of two women—Tenene Yvette Conley and Betty Jean Ramseur, both reputed prostitutes—whose bodies were discovered within a week of one another’s in two abandoned houses in Hickory, North Carolina. When Chapman’s sperm was found in Conley’s body, he was charged with murdering both victims. He admitted having smoked crack with both of them and with having had consensual sex with Conley, but denied killing either of them. There was no other physical evidence linking him to the crimes.
The trial, which began on October 31, 1994, was a sham from start to finish, involving false accusation, perjury, prosecutorial misconduct, and inadequate defense. The state’s case was lean and insubstantial. The prosecutor maintained that Chapman was the last person seen with Conley before her body was found. The house where Ramseur’s body was found had been set on fire, and the prosecutor claimed Chapman had tried to burn the house down in order to destroy evidence of the crime. Two witnesses who testified that Chapman had confessed to them, later recanted, saying they had been intimidated by the police and prosecutors.
Chapman’s attorneys offered little in the way of a defense. Both of them, Robert Adams and Thomas Portwood, were reputed alcoholics. Adams has been disciplined by the North Carolina State Bar and Portwood later died of an alcohol-related illness. Portwood in fact admitted to drinking heavily—as much as twelve drinks a day—during other capital trials. One client who was tried during such a drinking binge, Ronald Frye, was executed in 2001. On November 10, Chapman was convicted on two counts of first-degree murder and sentenced to death.
During post-conviction investigation, appellate lawyers found that exculpatory evidence had been concealed from the defense. In the Ramseur case, a credible confession by another person and witness testimony that identified another man as the killer in a photo lineup had been withheld. The charge that Chapman had burned down the house where Ramseur’s body was found was discredited by evidence that the fire was set after the body had been removed.
The newly uncovered facts in the Conley case proved even more compelling. Witnesses testified that they had seen the victim, after prosecutors said she had been killed, in the company of a man who had a record of violent behavior towards her. In fact, evidence was introduced indicating that Conley might not have been murdered at all, but had died from an overdose of cocaine.
After six post-conviction hearings over the next four years, Superior Court Judge Robert C. Ervin issued a 186-page order granting Chapman a new trial, citing withheld evidence; lost, misplaced or destroyed documents; the use of weak, circumstantial evidence; false testimony by the lead investigator; and ineffective assistance of defense counsel. The district attorney dismissed all charges against Chapman and he was released from prison on April 2, 2008.
Upon his release, Chapman spent most of his time working in low-wage jobs and “relying on the support of his adopted hometown of Asheville, where yearly fundraisers were held in his honor. He traveled around the state speaking about his exoneration and the many flaws in the criminal justice system that led to his conviction. ‘I can forgive,’ Chapman says, ‘but that doesn’t mean I have to forget.’” He died in July 2015, at the age of forty-eight.
Levon “Bo” Jones
North Carolina
One month after Chapman was freed, murder charges against Levon “Bo” Jones were dropped and he was released from prison on May 2, 2008 after spending thirteen years on death row in North Carolina. As in Jonathan Hoffman’s case, it was the false testimony of one key witness that determined the defendant’s fate.
Along with two presumed accomplices—Larry Lamb and Ernest Matthews—Jones was convicted of killing Leamon Grady, a local bootlegger, who was found dead in his home in Duplin County early on the morning of February 28, 1987. He had been shot once in the head. No one was charged with the crime for several years. That changed when, in August 1990, a reward was posted for information leading to an arrest. A woman named Lovely Lorden volunteered to earn the reward. Lorden told investigators the crime had been committed by her ex-boyfriend, Levon Jones. Jones was in prison at the time, serving time on an assault charge that had been brought by none other than Lorden herself. Lorden offered a virtual menu of differing statements regarding the Grady murder, but finally settled on a chronicle that early on the morning of February 28, she rode with Jones and the other two men to Grady’s house with the intent of robbing him. Lorden said she stayed in the car while the three men entered the house. Jones, she said, was carrying a pistol. She heard two gunshots, then the men returned to the car and they drove away. Jones, Lamb, and Matthews all were charged with first-degree murder on August 14 1992.
Lamb was the first to be tried. Lorden was the chief witness for the prosecution, and that was about all they had. There was no physical evidence connecting Lamb or any of the other defendants to the crime. The murder weapon was never found. Evidence that might have been favorable to the defense never surfaced. For example, not shown to the jury was evidence that another suspect had been alone with Grady on the night of the murder, lied to the police regarding his whereabouts that night, and then left town. Lamb’s attorney did not interview any witnesses or conduct any investigation of the case. He was convicted and sentenced to death. Upon being sentenced, Lamb told the court: “I will take whatever time you give me and I will go with it with pride, but [I want] to let you know you haven’t solved this case by locking me up.”
Jones went on trial three months later, in November 1993. The state asked for the death penalty, presumably because Jones was alleged to have fired the fatal shot. Once again, it was Lorden who carried the burden for the prosecution. Jones’s attorneys, one of whom was related to the victim, appeared to be extraneous to the case. They interviewed no witnesses and filed no motions. Not surprisingly, the jury found Jones guilty and he was sentenced to death. The conviction was upheld by the North Carolina Supreme Court in 1996.
Matthews, who, like Lamb and Jones, contended he was innocent, took a lesson from the two previous cases. He pleaded no contest to second-degree murder, robbery, and conspiracy, and was sentenced to twenty years in prison.
In 2006, US District Court Judge Terrence Boyle overturned Jones’s conviction because of the inefficiency of defense counsel, but Jones remained in prison awaiting a possible retrial. As it turned out, none was necessary. In December 2007, Lovely Lorden recanted the testimony she had given at trial fourteen years earlier. In an affidavit prepared by Jones’s attorneys, she admitted that much of her testimony was “simply not true.” She said law officers had coached her on what to say and threatened her with the possibility of prosecution if she failed to cooperate. As an added incentive, she received a $4,000 reward from the governor’s office for providing clues that led to Jones’s arrest. In light of the new evidence, the district attorney dropped all charges against Jones on May 2, 2008, and he was released from prison the same day.
Judge Boyle criticized Jones’s defense attorneys for “constitutionally deficient” performance, noting their failure to research the credibility of Lovely Lorden. The judge continued, “Given the weakness of the prosecution’s case and its heavy reliance on the testimony of Lovely Lorden, there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Now, Lamb was the only one of the three still in prison, Matthews having been released in 2000. But the future soon took a turn in Lamb’s favor. Christine Mumma, executive director of the North Carolina Center on Actual Innocence had been investigating Lamb’s case since 2006 when Jones’s conviction was overturned. On May 29, after the charges against Jones were dismissed, Mumma met with District Attorney G. Dewey Hudson who had received information that Grady had been killed by two other men. Hudson requested that the state reinvestigate the case. In 2010, based on Lorden’s recantation and the implication of other suspects in the crime, Mumma filed a petition for a new trial on Lamb’s behalf. A hearing on the petition was held in May 2013. Three months later, Superior Court Judge W. Douglas Parsons vacated Lamb’s conviction. The evidence demonstrated, he said, that Lorden had “both personal and financial motives to fabricate evidence” against the defendants. He went on to say that “fundamental fairness and due process dictate that Lorden’s testimony and credibility cannot sustain Lamb’s convictions.” The state dismissed the charges and Lamb was released on August 13, 2013.
Michael Blair
Texas
On September 4, 1993, seven-year-old Ashley Estell mysteriously disappeared, apparently kidnapped, while she and her family watched her brother play soccer at Carpenter Park in Plano, Texas. Her body was found the next day along a roadside. She had been strangled.
Michael Blair, who had a record as a sexual offender, was a likely suspect. He was brought in for questioning three days later when two evidence technicians from the Plano Police Department noticed his car in the area where the victim’s body was found. They followed the car as it drove away and eventually conducted a traffic stop. Inside the car, alongside Blair, was a flyer regarding the search for the victim. Blair told the officers that he, along with dozens of other members of the community, had volunteered to assist in the search for the victim and he wanted to see the location where the body was found. The police asked Blair to accompany them to the station. Throughout a ten-hour interrogation, he denied having any involvement in the crime.
All the same, police started building their case. Three eyewitnesses told police they saw him in the park that day. They all identified Blair in a photo lineup but not before his picture had appeared in the media. Two of the witnesses said they saw Blair’s photo on television before identifying him. No eyewitness ever claimed to have seen Blair together with the victim.
The search for forensic evidence turned up hairs and fibers found on Blair, the victim, and in Blair’s car. Investigators also came up with a clump of hairs from Jack Carter Park, which is more than two miles from Carpenter Park where the victim was last seen. Although there was no evidence that either Blair or the victim had been in Jack Carter Park on the day of the crime, the clump of hair would become a key piece of evidence at the trial.
Blair was arrested on September 14, charged with capital murder. His case went to the jury in 1994. The main evidence against him was the testimony of eyewitnesses who said they saw Blair in the park the day the victim disappeared and the hair and fibers found on Blair and the victim. The physical evidence was, at best, questionable. An analyst from the Southwest Institute of Forensic Sciences (SWIFS) testified that the clump of hair found in Jack Carter Park contained hairs microscopically similar to both the victim’s and Blair’s. He also noted that the clump contained hair from other unknown individuals. The SWIFS expert noted that hairs found in Blair’s car had a “strong association” with hairs from the victim but that he could not make a positive identification. An FBI expert testified that the chemical makeup of fibers from a stuffed animal in Blair’s car “most resembled” fibers found on the victim’s body with only “subtle differences.”
Taken as a whole, the hair and fiber evidence was inconclusive, according to lawyers from the Innocence Project. A spokesman for the Project said, “Because there is not adequate empirical data on the frequency of various class characteristics in human hair, an analyst’s assertion that hairs are consistent or similar is inherently prejudicial and lacks probative value.” But it was good enough for the jury. After only twenty-seven minutes of deliberation, they found Blair guilty of capital murder. He was sentenced to death.
Blair was scheduled to be executed in July 1999, but his legal team, which included the Innocence Project, got him a stay until more sophisticated DNA testing could be performed on the forensic evidence. DNA testing was relatively new in those days and was painfully slow. In Blair’s case it began in 2002, eight years after he was sent to death row, and continued into 2008. Every test excluded Blair as a potential contributor of the biological evidence found at the crime scene. All of the hair analysis was contradicted. In addition, human tissue found under the victim’s fingernails did not match Blair’s and tests conducted by the state on the victim’s clothing pointed to the involvement of another man who was an early suspect at the time of the crime but was since deceased. In light of the new evidence, Collin County prosecutors asked a trial judge to vacate Blair’s conviction and all charges were dropped in August 2008. Blair was removed from death row but he remains in prison. While on death row, he confessed to other crimes he had committed, pled guilty, and was given a life sentence.
One of the ironies of Blair’s case is that his death sentence provided a footnote in the history of failures in the penal system. Less than a year after he was sentenced to death, then-Governor George W. Bush signed “Ashley’s Laws,” named for the victim in the case, which expanded punishment and mandated registration for sex offenders. Innocence Project co-director Barry Scheck said Blair’s wrongful conviction and the community’s rush to expand punishment in the wake of the case illustrates serious flaws in the criminal justice system.
“Troubling questions about our criminal justice system are raised any time DNA testing shows that someone on death row is innocent,” Scheck said. “But in this case, the community rushed to judgment because Michael Blair had a record as a sex offender—while the apparent real perpetrator, who had no record, evaded justice. More than just an irony, this should give everyone pause about legislating or reaching court decisions based on community fear and outrage. This case starkly shows that the system makes mistakes and that those mistakes can have chilling consequences. Michael Blair was almost executed for a crime that DNA testing shows he did not commit. Even more troubling is the reality that the kind of evidence that led to Michael Blair’s wrongful conviction is used in countless cases nationwide every day. Eyewitness misidentification and unreliable forensic science convicted Michael Blair, but DNA has finally shown the truth.”
Yancy Douglas and Paris Powell
Oklahoma
It was a gangland-style killing, the kind that was so popular in the black-and-white noir movies of an earlier time. A hatchback automobile came cruising down a street in Oklahoma City, the door on the driver’s side flung open, both the driver and the passenger opened fire, and two teenagers were shot, one fatally. The victims on that June night in 1993 were fourteen-year-old Shauna Farrow and seventeen-year-old Derrick Smith, walking home together from a party. Farrow was mortally wounded; Smith was injured but survived. Smith’s survival did not auger well for Yancy Douglas and Paris Powell.
A member of the Southeast Village Crips street gang, Smith was facing charges for drug trafficking and he needed a break. When questioned by police about the identity of the shooters, Smith was equivocal at first but eventually named Douglas and Powell, both members of a rival gang. The police moved quickly. Douglas and Powell were arrested and charged with the crimes in August 1993.
The two men were tried separately, almost two years apart. Smith was the key witness in both trials, identifying Douglas and Powell as the shooters. He also said he had received no special deals from prosecutors in exchange for his testimony. Both defendants were convicted and sentenced to death, Douglas in October 1995, Powell in May 1997.
The appeal process brought no relief. But in 2001, Smith wrote an affidavit recanting his testimony. He said he had been drunk and high on the night of the shooting and was unable to identify the shooters. The police, he said, had pressured him into naming Douglas and Powell in exchange for a reduced sentence for his drug-trafficking charges. Still, it was not easy to get the convictions overturned. Various courts declined to act on the new evidence, but the Tenth Circuit Court of Appeals vacated the convictions in 2009. Prosecutors chose not to retry the case, all charges were dropped, and Douglas and Powell were released from prison after serving fourteen years.
In 2011, Powell was arrested in Oklahoma City and charged with several felony counts, including rape, kidnapping, robbery, and larceny. He represented himself at trial and was acquitted on all counts.
In 2013, the attorney who prosecuted the case was suspended for 180 days by the Oklahoma Supreme Court. The court ruled that the prosecutor had abused the subpoena process to compel witnesses to cooperate, failed to disclose evidence to the defense, and obstructed the defense’s access to evidence.
Anthony Graves
Texas
Justice has come slowly, in bits and pieces, for Anthony Graves and his quest is not yet over. Graves spent sixteen years on death row and barely survived two execution dates for a horrendous crime he did not commit. The crime was the multiple murders of Bobbie Joyce Davis, her daughter, and four grandchildren in Somerville, Burleson County, Texas, in 1994. After the family had been killed, their house was set ablaze.
Five days later, Robert Earl Carter, a prison guard and the father of the youngest victim, was arrested by Texas Rangers when he attended the funeral with bandages covering a number of burns. After being told he had failed a lie detector test, Carter told the Rangers a story that would place Graves on death row despite no other evidence of consequence. He said he had driven his wife’s cousin, Graves, to the Davis home at Graves’s request and waited outside while the murders were committed. A few days later, Carter recanted his story, and not for the last time. He said that the Rangers had determined the crimes could not have been committed by one person alone and threatened his life if Carter did not identify his accomplice.
Graves had three alibi witnesses—two siblings and his girlfriend—who said they were with him on the night of the murders. But only his brother Arthur testified at trial. His sister and his girlfriend later would explain that they were intimidated by the district attorney, Charles Sebesta, who informed them that anything they said could be used against them and they themselves might be charged. Carter, who had already been convicted and sentenced to death for his involvement in the slayings, offered to testify on Graves’s behalf. He told the DA, his assistant, and the DA’s investigator that Graves was not involved in the crime. The defense was never told that Carter had changed course and recanted. There was no physical evidence tying Graves to the murders. Based almost entirely of Carter’s pre-recantation testimony, Graves was convicted and sentenced to death.
In the meantime, Carter continued to advocate on Graves’s behalf. He solicited the help of his high school English teacher and of the Davis family. Two weeks before he was scheduled to be executed, in 2000, he stated flatly that Graves was not involved in the crime. In his final statement before being administered a lethal injection, he said: “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court … Anthony Graves don’t even know anything about it.” He repeated his statement minutes before his execution.
Nonetheless, it was not until 2006 that a panel of the Fifth Circuit Court of Appeals ruled that DA Sebesta had engaged in prosecutorial misconduct, suborning perjured testimony that he knowingly put before the jury and withholding testimony that could have influenced the jury in the defendant’s favor. The court overturned the conviction and ordered a new trial. The new district attorney, Bill Parham, began reviewing the evidence as he stitched together a new case. He hired former Harris County Assistant District Attorney Kelly Siegler as a special prosecutor. Siegler soon concluded that it was impossible to make a case against Graves. He said:
“After months of investigation and talking to every witness who’s ever been involved in this case, and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder. This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make a case anymore. He is an innocent man.”
Graves was released from prison in October 2010. According to Texas law, wrongfully convicted people are entitled to $80,000 for every year they spent in prison. In Graves’s case, the amount would come to $1.45 million. But Christmas would not come early, or easily, for Graves. There was a technicality that got in the way. While Graves’s conviction was overturned, the order releasing him from prison did not declare his “actual innocence,’’ making him ineligible to receive compensation. But Graves would not relent. As he continued to press his case, an angelic presence by the name of Nicole Casarez came to his aid. Casarez was a Houston-based attorney and journalism professor at the University of St. Thomas in Houston. Working with the Innocence Project of Texas and journalism students at St. Thomas, Casarez was determined to set things right. She labored tirelessly on Graves’s behalf for eight years. It took a new law, passed by the state legislature in 2011, that got Graves the award he was owed.
Graves was not the type to allow such dedication to go unrewarded. “I wanted to repay Nicole, but I knew she’d never accept money from me,” Graves said. “I thought about giving her an amazing trip somewhere, but I wanted to give her something that would live on.”
What Graves did was to create the Nicole B. Casarez scholarship in Law at the University of Texas Law School. But he was not through giving back. He works with the Texas Defender Service, a non-profit organization that assists death-row inmates. He also created the Anthony Graves Foundation, a mentorship and development program for at-risk youth and children adversely affected by the criminal justice system. “These children,” Graves says, “become the prison pipeline. Our mission is to end this crippling ripple effect and develop the minds of our youth. The Anthony Graves Foundation gives these children a choice and a chance to live happy, productive lives, and become the powerful, new foundation of our communities.”
As recently as 2014, Graves was still trying to right the wrongs of the past. In an email to the Austin Chronicle, he said he hopes to hold Sebesta and the Texas justice system accountable for the misconduct that led to his wrongful conviction. He said he intends to pursue every legal avenue available to achieve that goal, including filing a federal civil rights lawsuit and exploring the possibility of convening a state court-of-inquiry review which would hold Sebesta criminally liable for failure to turn over to the defense exculpatory material that would have helped to clear Graves of any wrongdoing. Graves said he was pursuing the matter “in hopes of restoring faith in our criminal justice system. No one is above the law, and everyone should be held accountable—including prosecutors who abuse their authority …”
Ryan Matthews
Louisiana
The fallibility of eyewitness testimony, even offered by well-intentioned citizens, needs no further demonstration than the case of Ryan Matthews. Matthews was convicted of murder and sentenced to death on the flawed identification of eyewitnesses who just got it wrong and the equally flawed mechanics of the criminal justice system.
Matthews, seventeen at the time, was charged with felony murder following the shooting death of the owner of a convenience store in Bridge City, Louisiana, not far from New Orleans. On April 7, 1997, a man wearing a ski mask and brandishing a gun entered the store and demanded money. When the owner of the store, Tommy Vanhoose, refused, the gunman shot him four times and fled. On the way out, still shooting, he removed his mask and dove through the passenger-side window of a waiting car. A witness subsequently picked up the ski mask and turned it over to the police.
His flight and escape was seen by several witnesses. One eyewitness said she was in her car at the time and saw the gunman run from the store, fire shots in her direction, and leap into the car. Shown an array of photos by the police, she tentatively identified Matthews as the perpetrator. By the time of the trial, two years later, she said she was certain Matthews was the gunman. Two other passengers in her car said they saw the assailant shed his mask as he fled the store. The driver said he had seen the gunman’s face in the rearview mirror while he was being shot at and trying to block the escape of the getaway car. Several hours later, the driver identified Matthews as the shooter; the other passenger did not. The identifications were problematic at best. The witnesses all seemed to agree that the gunman was no taller than five-feet-eight; Matthews, a shade over six feet, was nonetheless picked out as the man they saw discarding his mask as he dove into the car.
Matthews and Travis Hayes, also seventeen, had been stopped by police several hours after the crime was committed because the car they were riding in fit the description of the getaway car. They were arrested and Hayes was questioned for more than six hours. Initially, he told investigators that he and Matthews were not in the area when the crime took place. But later, he changed his story and said that he was the driver of the getaway car and that it was Matthews who went into the store. He heard shots being fired and then Matthews ran out and got into the car. Matthews insisted on his innocence from the start and never wavered.
The prosecution made its case chiefly on the eyewitness identifications. The defense offered evidence that forensic testing of the mask excluded both defendants. Another forensic expert testified that the car the boys were driving when they were stopped by police could not have been the getaway car because the window on the passenger side, the one Matthews was said to have jumped through while making his escape, was inoperable and could not be rolled down.
The trial was brief, one might say abbreviated, and conducted at a pace that suggested the judge was in haste to move along to matters more pressing. On the third day, testimony was taken until 10 p.m. At that time, the judge denied a defense motion to adjourn and ordered both attorneys to make their closing statements. The jury was then sent to deliberate. At 4:20 a.m., they sent a note to the judge saying they were unable to reach a verdict. The judge ordered them to continue deliberations. Forty minutes later, at 5 a.m., they brought in a verdict of guilty. Matthews was convicted of first-degree murder and sentenced to death. Hayes was convicted of second-degree murder and sentenced to life in prison.
Defense investigators William Sothern and Clive Stafford Smith, of the Louisiana Crisis Assistance Center, were convinced of the two teenagers’ innocence and continued to examine the evidence. In March 2003, four years after the convictions, the investigators got lucky. DNA testing in another murder case cleared Matthews and Hayes. The other murder had occurred a few months after Vanhoose’s death just a few blocks away. A local resident, Rondell Love, confessed to the crime and was convicted. In prison, he is said to have told other inmates that he also killed Vanhoose. When Sothern and Smith learned of Love’s admission, they turned their attention to his case. They found that DNA taken from the ski mask clearly pointed to Love and excluded both Matthews and Hayes. In August 2004, Matthews’s conviction was overturned and he was set free. Hayes was finally released in December 2006.