Snitch Testimony
IN THE ARGOT of the criminal justice system, they are called jailhouse snitches; in more formal terms, they are known as incentivized witnesses. But there is nothing ambiguous about their function: They offer courtroom testimony for the prosecution in exchange for an incentive, usually the dropping of a criminal charge or its reduction to a lesser charge. If the witness is already incarcerated, he is likely to have his sentence reduced or his parole accelerated. The hazards of such a system hardly need explaining. How much trust can be invested in the testimony of a convict promised early release if he is ready to say what the authorities tell him to say? Yet dozens of innocent people have been sent to prison, many of them to death row, on the weight of bartered testimony that, in effect, has been bought by police or prosecutors. Law enforcement agents insist that well-placed informants are an integral part of the process, that the surest way to justice is to squeeze one suspect or prison inmate to provide the incriminating evidence needed to convict another. It is by no means a technique of recent invention. Its roots are set deep in the practice of Anglo-American law.
In eighteenth century England, the use of “crown witnesses” was accepted as a central tool in the criminal justice system. It was a straight-forward arrangement known both to prosecution and defense and therefore entirely without subterfuge. Informants for the state escaped prosecution and received for their services a stipend referred to as “blood money.” It was an arrangement that not only countenanced perjury but encouraged it, proving along the way that there was little honor among thieves. Of course a crown witness of renown might well have suspected that a day would come when he would fall victim to a witness no more credible than he was. That is what happened to Charles Cane.
Cane had offered the testimony that delivered two men to the hangman in 1755. The following year, he found himself in the prisoner’s dock confronted by another witness for the crown and suffered the same inglorious end. The perceptive clergyman that ministered to him noted that it was no surprise to Cane. He had, the clergyman said, expected “nothing less than hanging to be his fate at last, but not of the evil day’s coming so soon.”
More than two centuries later, the United States proved that it conceded nothing to the motherland when it came to producing “professional” informants. Leslie Vernon White had established a reputation as the best in the business and in 1989 was featured on a segment of the television program Sixty Minutes. White’s story was first chronicled by Los Angeles Times reporter Ted Rohrlich. A career criminal, White fabricated confessions in at least a dozen cases. He would pick up details about crimes from news sources and get information via the prison telephone. He noted that his was a competitive business, with many informants seeking an edge in collecting information that would make their stories credible. They even celebrated their calling with slogans such as “Don’t go to the pen, send a friend” and “If you can’t do the time, just drop a dime.”
Two reporters for the Chicago Tribune—Ken Armstrong and Steve Mills—studied the role that snitches and other incentivized witnesses played in the cases of ninety-seven people who were released from death rows throughout the United States between 1976 and 1999. Their findings were analyzed in a research report by Rob Warden for the Center on Wrongful Convictions.
The study found that prosecutors used incentivized witnesses in 39 percent of the ninety-seven cases. The thirty-eight people wrongfully convicted on the basis of that testimony served a total of 291 years in prison before they were released, an average of nearly eight years each. Sixteen of the thirty-eight defendants were convicted on the testimony of jailhouse snitches, almost all of whom said they had heard the defendants confess. Other informants, some of them suspects in the same case, testified against the remaining twenty-two. In eighteen cases, informants with incentives were the sole basis for conviction, and police or prosecutorial misconduct contributed to more than one third of those cases. Of the thirty-eight states that practiced capital punishment at that time, seventeen had wrongful convictions based at least in part on incentivized testimony. Recantation by the informants was the reason for exoneration in almost half the cases.
It is not possible to estimate how many innocent people might have been sent to death row or, worse, executed, as a result of such fabricated testimony. It is nearly certain, however, that at least one innocent man was put to death solely on the basis of the incentivized testimony of two witnesses.
Sonia Jacobs and Jesse Tafero
Florida
Justice came too late for Jesse Tafero. He and Sonia “Sunny” Jacobs, his common law wife, were sentenced to death in Florida for the murder of two highway patrolmen in 1976. They were convicted largely on the testimony of a third accomplice who, to all appearances, was the actual killer. Jacobs’s conviction was overturned in 1992 on a writ of habeas corpus when it was discovered that the prosecution witnesses had lied. Tafero, who was convicted on the same evidence, would likely have been released as well. But by then he had been dead two years, executed in brutal fashion in the electric chair.
Early on the morning of February 20, 1976, state highway patrol trooper Philip Black and a visiting Canadian constable named Donald Irwin, approached a green Camaro parked at a rest stop on Interstate 95 in Broward County. Asleep in the car were Jacobs, Tafero, and Walter Rhodes, an ex-con whom Tafero had met while both were serving prison terms. The patrolmen thought they saw a gun on the floor of the car. They woke the occupants and asked Tafero and Rhodes to get out. At some point after that, both police officers were shot dead. Jacobs, Tafero, and Rhodes fled the scene in the police car, but soon ditched it and resumed their flight in a stolen car. Shortly after, they were caught at a police road block and arrested.
Ballistics tests indicated that both policemen were shot with the same gun. Tests also showed that Rhodes definitely had fired a gun, since he was the only one who tested positive for gunpowder residue. Tafero, it was determined, might have fired a gun or simply handled a gun after it was fired. Tafero told police that Rhodes had shot the policemen and then handed him the gun so that Rhodes could drive the getaway car. Rhodes was in fact behind the wheel when the car was stopped at the roadblock. However, Rhodes named Tafero as the shooter and agreed to take a polygraph test. Police said he passed the test but withheld the results from the state. Yet it was on the basis of the lie-detector test that the prosecutor justified a plea bargain for Rhodes, who agreed to testify against Tafero and Jacobs and to plead guilty to second-degree murder in return for a life sentence.
Tafero and Jacobs were tried separately but were convicted on the same basic evidence. In addition to Rhodes’s testimony, jailhouse informants said that Tafero and Jacobs had confessed to them. There also was testimony from two eyewitnesses. One said he saw a man in brown, which was what Tafero was wearing, spread-eagled and leaning over the hood of the police car when the shots were fired. Another said he saw a man wearing blue, Rhodes, move from the front of the car to the rear just before the shooting. However, neither witness was able to identify the shooter on sight. Both Jacobs and Tafero were found guilty. The jury recommended a term of life imprisonment for Jacobs and a death sentence for Tafero. The judge overruled the jury and sentenced Jacobs to die as well.
In 1981, the Florida Supreme Court commuted Jacobs’s sentence to life in prison after her lawyers learned that the polygraph test was inconclusive and indicated that Rhodes might have been lying. The following year, Rhodes recanted, saying he—not Tafero or Jacobs—had fired the gun. He later recanted on his recantation, then recanted again and altered his story repeatedly over the years.
Tafero’s conviction was affirmed in 1981. Various motions and appeals in state courts were denied in 1983, 1984, 1987, 1988, and 1990. The Eleventh Circuit Court of Appeals, a federal court, reviewed the case in 1986 and 1989 and confirmed the conviction each time. The appeal process finally ran out for Tafero; so did time. In May 1990, he was executed in horrifying fashion. During the execution, Tafero’s head seemed to catch fire with flames and smoke shooting through the top. The electric current was interrupted and resumed three times. Witnesses said that Tafero continued to breathe and move after the first interruption. His brutally slow, painful death prompted many to consider whether continued use of the electric chair might violate the Eighth Amendment’s injunction against cruel and unusual punishment.
As for Jacobs, who grievously mourned Tafero’s death, her prospects were growing somewhat brighter. A childhood friend of hers, filmmaker Micki Dickoff, had taken an interest in her case. Scanning court transcripts, affidavits, and old newspaper clippings, Dickoff found errors in the state’s case. It was learned that Rhodes had failed the polygraph test, and withholding the results from the defense was a violation of the defendants’ constitutional rights. A federal appeals court determined that only Rhodes could have fired the gun. The testimony of the state’s witnesses was found to be false. The prosecution had suppressed the statement of a prison guard that corroborated Rhodes’s recantation of his initial testimony. Dickoff assembled a color-coded brief and presented it to the Eleventh Circuit Court of Appeals. The court overturned Jacobs’s conviction on a writ of habeas corpus.
Rather than risk the likelihood of an acquittal on retrial, the Broward State Attorney’s Office offered Jacobs a deal. If she would enter a plea in which she did not admit guilt but agreed not to bring a civil suit, she would be released immediately. Jacobs, twenty-nine years old when she was sent to prison, now forty-five and the mother of two grown children, accepted the offer. She walked free on October 9, 1992. Since the tainted evidence that resulted in Jacobs’s release was virtually identical to that which sent Tafero to his death, it is a near-certainty that he too would have been freed and that an innocent man had been executed.
Joseph Amrine
Missouri
The question of executing an innocent person on the basis of a legal technicality was at the heart of the case against Joseph Amrine. His was also a classic study of the danger inherent in the use of snitch testimony.
Amrine was sentenced to death for the murder of Gary “Fox” Barber, a fellow inmate at the Potosi Correctional Center in Cole County, Missouri, where Amrine was serving a prison term for robbery, burglary, and forgery. Barber was stabbed to death with an ice pick on October 18, 1985, in the prison’s recreation room. There were about fifty inmates and two correctional officers in the room at the time, but there was no consensus on what actually occurred.
The suspect of first choice was Terry Russell, another inmate. John Noble, a corrections officer who was there at the time, said he saw Russell and Barber engaging in “horseplay” and Barber chasing Russell until he collapsed. He did not, however, witness the fatal confrontation. Another inmate said Russell and Barber had been in a fight the previous week.
When Russell was brought in for questioning, he said Amrine had admitted to him that he killed Barber as revenge for a story making the rounds that Barber had taken advantage of him sexually. Russell said he did not see the murder because he had left the room to get an aspirin for a headache. When he returned, he said, the room was sealed but he saw officers loading Barber onto a stretcher. In exchange for his testimony, Russell received protective custody and a commendation to the parole board.
Amrine insisted he knew nothing of the murder. He said he was playing cards at the time and six other inmates supported his claim. The state was unable to muster any physical evidence that would link Amrine to the scene of the crime. Only Russell’s questionable testimony implicated Amrine—until two additional witnesses were summoned forth. To all appearances, the authorities persuaded two other inmates to join Russell in pointing the finger at Amrine. One of them was questioned as many as thirty times by investigators to make sure he got his story straight. Both were granted reduced criminal charges and protective custody in exchange for their testimony.
Amrine’s public defender did little to counter the state’s charges. He met with Amrine and other witnesses for no more than forty-five minutes prior to going to trial. He failed to interview two witnesses who later said they were playing cards with Amrine at the time of the crime, one of whom claimed to have seen Russell stab Barber. He never told the jury that Russell had been the initial suspect in the case. He did not make it clear that Officer Noble, the only non-inmate present at the time of the crime, offered an account that substantially differed from Russell’s and who was the only witness who would not profit from his testimony. Defense counsel did no better when it came to physical evidence. He offered no objection when the prosecution submitted as evidence dried blood found on Amrine’s shirt that a state serologist had said was not fresh enough to determine the age or type of the blood. On October 30, 1986, Amrine, who is black, was convicted by an all-white jury and sentenced to death.
At a post-conviction hearing a year later, Russell and Randall Ferguson, another of Amrine’s three accusers, recanted their testimony and admitted to lying on the witness stand. With recantations from two of his three accusers, Amrine filed a petition for habeas corpus in the US District Court of the Western District of Missouri. Judge Fernando Gaitan Jr. denied the appeal, insisting that the testimony of the third eyewitness, Jerry Poe, still implicated Amrine. Some ten years later, in 1997, Poe did recant and the US Court of Appeals for the Eighth Circuit remanded the case to Judge Gaitan. Now, the good judge found that Poe’s recantation was unreliable and since that was the only “new” evidence submitted, he denied Amrine’s appeal, never considering the question of guilt or innocence. Not long after, all three accusers admitted in letters, videotaped depositions, and signed affidavits that the authorities had induced them to lie with threats of violence from other inmates and promises of favored treatment in exchange for their cooperation. The overall result was that over the course of more than a decade, Amrine’s four appeals and an application for pardon to Missouri Governor Bob Holden were all denied.
In November 2001, the Missouri attorney general asked the State Supreme Court to set an execution date. However, a documentary about Amrine’s case had attracted a good deal of public attention, and the justices decided to hold off on setting a date, pending further investigation. The gift of time served Amrine well. With his appellate counsel, Sean O’Brien and Kent Gipson, working on his behalf, Amrine appealed to the Supreme Court of Missouri. Assistant Attorney General Frank Jung argued that the Supreme Court had no jurisdiction in the case because there was no constitutional violation during his first trial. Jung chose to ignore all evidence pointing to Amrine’s innocence. In fact, he went so far as to urge the court to execute Amrine even if it found him to be innocent.
It was a narrow, perhaps narrow-minded, view of justice which held that the law must be applied in its most literal terms regardless of consequence. If a convicted man could not show that he was a victim of judicial or prosecutorial error during the course of his trial, proof of his actual innocence was irrelevant. It was a theory that made a mockery of the concept of justice, in fact nullifying the purpose for which it was intended. The law, in effect, came to depend on a robotic calculus that rendered thought and reason little more than abstractions.
Four of the seven justices disagreed with the attorney general’s judicial theory. They overturned Amrine’s conviction. In their decision, they established “actual innocence” as a Missouri standard which allows the court to overturn sentences upon its “loss of confidence” in a capital case even if there are no technical errors. Writing for the majority, Judge Richard B. Teitelman stated that Amrine had proven that a “manifest injustice” would occur without habeas relief even though the conviction was the product of an otherwise fair trial. “It is difficult to imagine,” he said, “a more manifestly unjust and unconstitutional result than permitting the execution of an innocent person.”
The court ordered the state to either release Amrine or give him a new trial. Bill Tacket, the local prosecutor, filed new murder charges against Amrine, but withdrew them a month later, saying that there was absolutely no evidence to implicate him in the crime. On July 28, 2003, Amrine was released after spending twenty-six years in prison, seventeen of them on death row.
Laurence Adams
Massachusetts
Laurence Adams spent thirty years in a Boston prison, convicted solely on the testimony of three members of the same family, two of whom were facing criminal charges at the time. Adams and Harry Ambers, a co-defendant, were arrested in 1972 for robbing and bludgeoning to death a transit worker on a Massachusetts subway platform.
Wyatt Moore and his sister Susie both testified that while they were all together one evening in their mother’s home, Adams confessed to having committed the crime. There was no forensic evidence or any eyewitnesses to support the charges made by the Moore family. Adams’s entire family testified that he was at home with them at the time of the crime. Nonetheless, Adams, nineteen years old and an African American, was pronounced guilty of first-degree murder by an all-white, all-male jury in 1974. Both he and Ambers were sentenced to death, but they served only a year on death row. Their sentences were commuted to life in prison in 1975 when the Massachusetts Supreme Judicial Court ruled that the state’s death penalty statute was unconstitutional and capital punishment was abolished in the Commonwealth of Massachusetts.
Adams lost an appeal based on ineffective representation by his defense counsel, but in 1993 a court ruling afforded access to state records that previously had been unavailable. An attorney appointed to investigate Adams’s case found evidence of gross police and prosecutorial misconduct as well as ineffective legal defense. According to previously suppressed records, the state’s star witness, Wyatt Moore, and his sister Susie both had criminal charges against them dropped or reduced in exchange for their testimony against Adams. Wyatt, in fact, was in prison on the date he claimed to have been in his mother’s home hearing Adams confess to the crime. To compound the shallowness of his testimony, his cellmate at the time was Warren Ambers, who had been a suspect in the murder, along with his brother, Harry. Adams’s attorney also uncovered police records in which Harry Ambers admitted to committing the crime in concert with his brother, Warren. As for Adams’s defense, it was discovered that at the time of his trial his counsel also represented Warren Ambers on unrelated charges. The dual representation created a conflict of interest, as he was unable to identify one of his clients, Warren Ambers, as a suspect in the case of another, Laurence Adams. Shortly after the new evidence was discovered, and shortly before her death, Susie Moore recanted her testimony against Adams.
In April 2004, Chief Suffolk Superior Court Judge Robert A. Mulligan overturned the 1974 murder conviction, citing a series of violations of Adams’s rights, including the withholding of evidence. Adams, who earned a bachelor’s degree in sociology while in prison, was released on May 20, 2004, precisely thirty years after his conviction. “He’s had remarkable patience,” said his attorney, John J. Barter, who spent nine months trying to prove his client’s innocence. “It’s not a matter of him being there but not being culpable,” he said. “He wasn’t there.”
Dan L. Bright
Louisiana
It took the testimony of only one eyewitness—a felon on parole—to convict Dan L. Bright of felony murder and get him sentenced to death. It took a redacted FBI file, obtained through the Freedom of Information Act, to get him exonerated eight years later.
The events that triggered his unlikely odyssey through the criminal justice system began, entirely in his absence, on Super Sunday 1995. It had been a good day for a fellow named Murray Barnes. He had won $1,000 in a Super Bowl betting pool in a New Orleans bar. He had watched the game with his cousin and a friend, and all three had done a good bit of drinking well into the night. They left after midnight. As Barnes walked to his truck, two men approached, shot him three times, and then fled. Barnes ran back into the bar but it was too late. He died of internal bleeding shortly afterwards.
When police arrived at the scene, Barnes’s cousin, Freddie Thompson, described the shooter as a light-skinned African American wearing a hooded sweatshirt. Several weeks later, an anonymous caller told police that Dan L. Bright had been involved in the shooting and a warrant was issued for his arrest. Bright was not entirely unknown to the police. He had a record of small-time criminal activity, and he appeared to be a viable suspect. His mother did not know her son was in trouble until she saw him featured on television as one of America’s Most Wanted. Although Bright insisted he had nothing to do with the crime, he followed his mother’s urging and turned himself in.
Bright was charged with felony murder. The prosecution maintained that he had attempted to rob Barnes of his Super Bowl winnings before shooting him, thus providing the aggravating factor that warranted a charge of capital murder. There was no forensic evidence connecting Bright to the crime, and Thompson, the only eyewitness, testified that he had been drinking heavily that day. By contrast, two defense witnesses testified that Bright was with them in another location at the time of the crime. That testimony was the best of what Bright received by way of a defense. His attorney, later described by the jury foreperson as “bumbling, unprepared, and perhaps drunk,” failed to counter the state’s case at every turn. He did not, for example, point out that Bright, who is left-handed, had a cast on his left arm, which would have made it difficult for him to handle a gun. The attorney met with Bright only once before the trial. In later hearings, it was learned that he said his only aim was to “earn his fee” by getting a life sentence rather than the death penalty. By his own standard, he did not earn his fee. Following a one-hour trial and less than two hours of deliberation, the jury found Bright guilty and sentenced him to death.
The death sentence was soon after reduced to life without parole when his new attorney pointed out that the prosecution could not establish any attempt to rob the victim, nullifying the capital murder charge. While the court agreed to drop the charge to second-degree murder, it rejected defense claims that the testimony of the eyewitness was unreliable and that Bright’s original defense was inadequate. During the course of the appeals process, the defense became convinced of Bright’s innocence and determined that it would seek post-conviction relief.
The move that turned the case in Bright’s favor was the inspiration to look into any files the FBI had kept on Bright. His attorneys found there indeed was such a file and that the document had been heavily redacted. Of critical significance was a line that read: “The source further advised that Daniel Bright, AKA ‘Poonie’ is in jail for a murder committed by [name redacted].” Invoking the Freedom of Information Act, they got a federal district court to force the FBI to release the un-redacted version of the document. The name that was withheld turned out to be Tracey Davis. The defense attorneys also uncovered information the prosecution had suppressed concerning the criminal history of Freddie Thompson, including the fact that he was a convicted felon in violation of parole when he testified against Bright.
Despite the new evidence, the Orleans Parish Criminal District Court denied Bright’s petition for post-conviction relief on June 10, 2003. A year later, however, the Louisiana Supreme Court vacated Bright’s conviction and sentence and remanded the case for a new trial because the prosecution had suppressed exculpatory evidence. The court held that the specific facts of Thompson’s criminal record and the fact that he was still on parole when he testified against Bright raised questions about the veracity of his trial testimony. It said: “This conviction, based on the facts of this case which include a failure to disclose what the state now says is significant impeachment evidence, is not worthy of confidence and thus must be reversed.” On June 14, 2004, the district attorney dropped all charges and Bright was released.
Bright settled a federal wrongful conviction lawsuit for $77,000. He received $208,000 in compensation from the state of Louisiana.
Derrick Jamison
Ohio
“There is a double standard when it comes to justice in our judicial system, especially with wrongful conviction,” says Derrick Jamison. “If you are a minority or a low-income citizen, the pursuit of justice can be elusive. But if you are rich, it happens overnight.” Jamison was speaking from first-hand experience. An African American, he spent nearly twenty years on Ohio’s death row for a murder and robbery of which he was innocent.
The police had little to go on when bartender Gary Mitchell was robbed and beaten to death in the Central Bar in downtown Cincinnati. Several witnesses said they saw two men fleeing the scene on that night in August 1984, but their description of the perpetrators was vague. When Derrick Jamison was arrested for robbing a Cincinnati restaurant on October 12, he seemed to bear a resemblance to the description of one of the men but not close enough for police to charge him with murdering the bartender.
Three months later, a man named Charles Howell was arrested on a charge of sexual assault. While in custody, Howell confessed to being an accomplice in the Central Bar robbery and murder, and he named Jamison as the primary killer. He offered to testify against Jamison in exchange for a lighter sentence in the sexual assault case. He was convicted of aggravated robbery and sentenced to ten years in prison.
Jamison was indicted for murder in March. In addition to Howell’s questionable testimony, the state produced a shoe print from the scene of the crime that was similar the shoes Jamison was wearing when he was arrested for the restaurant holdup. In October, the jury found him guilty and he was sentenced to death. Jamison filed appeals with the Ohio Court of Appeals, First Appellate Circuit, in 1988 and 1992, but both were denied.
A few years later, a new attorney found exculpatory evidence that had been withheld from the defense. In police interviews, several witnesses offered descriptions of the two men fleeing the crime scene that differed vastly from those that originally had raised the suspicions of the police. Describing the two men running from the scene, one was said to be about five-foot-six and carrying a brass pipe, presumably the murder weapon, the other about six feet tall. Howell was about an even six-feet and Jamison six-foot-four. Thus, Howell’s claim that Jamison had acted as his accomplice now appeared shaky. By way of further contradiction, Howell never mentioned a brass pipe being used in the attack. He had said Jamison had punched Mitchell and kicked him repeatedly in the head.
On May 20, 2000, fifteen years after his conviction, Jamison’s attorney filed a habeas corpus petition with the US District Court for the Southern District of Ohio. The Court granted the writ on the grounds that the suppression of exculpatory evidence had denied Jamison a fair trial. The district attorney chose not to retry the case, and on February 28, 2005, the Ohio Court of Common Pleas dismissed the charges against Jamison. He was removed from death row and released from prison on October 25, 2005.
Recalling the day of his release, Jamison said: “In the twenty years I experienced ‘dead man walking’ I never had anything to smile about. But on that day, I felt the smile come from within my heart. The sun shone down on me that day.”
Michael Toney
Texas
It was what police call a cold case, all but forgotten. More than a decade had passed since a bomb detonated in a Lake Worth, Texas, home in 1985, killing three people. There appeared to be no suspects and the case lay fallow until 1995 when, in the wake of the Oklahoma City bombing, the Department of Alcohol, Tobacco and Firearms reopened the case as part of a program to investigate all unsolved domestic bombings.
The incident took place on November 28, 1985. A family returning home to their trailer found a briefcase at the front door. They brought it inside, and when fifteen-year-old Angela Blount opened it, a bomb exploded. The girl was killed, along with her father, Joe Blount, and a cousin, Michael Columbus. There seemed to be no reason for anyone to plant the bomb at the Blount residence. A man who lived across the street and was believed to be involved in the sale of illegal weapons, said he thought the bomb might have been meant for him.
When the case was revived, initial queries led nowhere. But in 1997, an inmate in the Parker County jail told police that a fellow inmate, Michael Toney, told him he had planted the bomb. Toney, who was in prison on a burglary charge, proclaimed his innocence, but, apparently in their haste to solve a case of domestic bombing, police charged him with capital murder. Shortly before the trial began, the jailhouse informant recanted his story. He said he had concocted the story with Toney, thinking that his volunteering to aid the authorities in their search might gain him favor, possibly even an early release from his sentence. They did not think Toney would be charged and tried simply on the basis of his testimony.
There was no physical evidence connecting Toney to the crime, but prosecutors managed to find two new witnesses to testify against him at trial: his ex-wife, Kim; and a former friend, Chris Meeks. When first questioned by police, Kim said she knew nothing about the bombing, but she later recalled that she, Toney, and Meeks had been near the Blounts’ trailer park on the evening of the murders. Furthermore, she said Toney had entered the trailer park carrying a briefcase she had seen was packed with bombs a few days earlier. When he left the trailer, she said, he no longer had the briefcase. Meeks, who also had originally denied any knowledge of the case, now told police a similar story. Toney was convicted on May 20, 1999 and sentenced to death.
Toney’s appeal and petition for habeas corpus were both denied. However, on a second petition, the defense produced evidence that the prosecution had withheld fourteen documents that contradicted the testimony of the witnesses against Toney and suggested that police had fed them the incriminating information. The Texas Court of Criminal Appeals overturned the conviction on December 17, 2008 because the prosecution had withheld exculpatory evidence. The Tarrant County district attorney’s office then withdrew from the case. The attorney general’s office, which was specially appointed to assume control, dismissed the indictment against Toney and he was released from prison on September 2, 2009.
However, Toney had little time to enjoy his freedom. A month later, on October 3, he was killed when the truck he was driving veered off the road and overturned, throwing him from the vehicle.
Reginald Griffin
Missouri
The time-worn adage that there is no honor among thieves requires little more in the way of evidence than the case of Reginald Griffin who was sentenced to death for the 1983 murder of a fellow inmate at the Missouri Training Center for Men in Moberly. A bevy of inmates implicated Griffin, recanted their testimony, pointed their fingers elsewhere, and made deals with prison authorities, offering their testimony in exchange for favors, either real or hoped for.
The crime in question took place on July 12, 1983, following a prison-yard quarrel among inmates over a television set. James Bausley, the owner of the set, was stabbed to death and a sharpened screwdriver was confiscated from an inmate named Jeffrey Smith as he was leaving the area where Bausley was stabbed. Smith was placed in administrative segregation and convicted of unlawful possession of a weapon. A homemade knife was found about twenty feet from Bausley’s body.
During the investigation of the murder, two inmates, Paul Curtis and Wyvonne Mozee, told authorities they saw Griffin, who was serving a twenty-year sentence for armed assault in 1981, stab Bausley. They also said that two other inmates, Doyle Franks and Arbary Jackson, aided Griffin. Griffin, Franks, and Jackson were all charged with capital murder in 1987 and tried separately.
Griffin went on trial in Randolph County Circuit Court in January 1988. The prosecution’s case rested almost entirely on the testimony of Curtis and Mozee. Curtis testified that he saw Griffin, together with Franks and Jackson, arguing with Bausley over the television set and that Griffin hit Bausley in the back and stabbed him in the chest with a twelve-inch homemade knife whose handle was fashioned from a yellow rag. He said Griffin threw the knife onto the roof of the prison gymnasium and fled the scene. Mozee died before the trial began, but the transcript of his preliminary hearing was read to the jury. His statements were much the same as Curtis’s. Curtis admitted that his testimony was given in exchange for the prosecution’s promise to help him on unrelated theft charges and to notify the parole board of his cooperation. Curtis’s story was confirmed by subsequent events. By the time the trial started, he had been paroled and the state had paid his rent for one month after his release.
As for forensic evidence, the prosecution offered a thirteen-inch knife with a yellow cloth wrapped around the handle that had been found near the site of the stabbing. A medical examiner testified that the knife could have caused Bausley’s wounds. Although preliminary tests for the presence of human blood were positive, subsequent testing found there was no human blood on the knife.
For the defense, two inmates—David Steele and Eddie Johnson—testified that Mozee had told them he had made a deal with prison authorities to testify against Griffin in return for an early release and he had agreed to say “whatever they wanted just as part of the deal.” Johnson said Mozee told him that he had not seen the stabbing. Another defense witness, Leonard Rogers, testified that he had seen someone running from Bausley’s body, and it was not Griffin.
Griffin was convicted of capital murder in January 1988 and sentenced to death. Franks was convicted of second-degree murder and sentenced to life in prison, to be served consecutively to a life sentence he was already serving. Jackson was acquitted.
After spending five years on death row, Griffin’s death sentence was vacated in 1993 because it was found that, at the sentencing phase of his trial, the criminal record of another man named Reginald Griffin had been submitted to the jury in error. Griffin was re-sentenced to life without the possibility of parole.
Across the next decade, Griffin lost a number of direct appeals, but Franks eventually came forth and stated that Griffin had nothing to do with Bausley’s murder. In fact, as early as 1989, one year after Griffin’s conviction, Franks had said that Jeffrey Smith was the one who stabbed Bausley and that a guard caught Smith with a knife or a screwdriver shortly afterward.
In 2005, Griffin filed a state petition for a writ of habeas corpus, invoking the 1963 Brady Rule, which requires the prosecution to disclose evidence favorable to the defense. An evidentiary hearing was held in 2007 which ultimately cleared Griffin and resulted in his release. At the hearing, Curtis admitted that he did not see the stabbing; he was in a vocational auto mechanics class at the time in a different part of the prison. He said he learned about the killing from Franks while in administrative segregation for an unrelated fighting incident. Franks, who was in an adjoining cell, boasted about committing the murder, Curtis said. He explained that he lied because he was facing transfer to Jefferson City, the highest security state prison at the time, and he feared for his safety in a tougher environment. He made a deal with the authorities to implicate Griffin in exchange for parole.
For his part, Jackson, who had already been acquitted, testified that Griffin was not in the prison yard at the time of the murder. He said he saw Bausley, Franks, and Smith arguing about who owned the television set and that the dispute seemed about to turn violent. He said that he tried to break it up but that he left when Franks and Smith produced sharp-edged weapons.
The defense staked its claim on the grounds that the prosecution had failed to disclose that a knife had been confiscated from Smith immediately after Bausley was stabbed.
Despite all the new exculpatory evidence, Griffin’s motion for a new trial was denied. However, in August 2011, the Missouri Supreme Court, en banc (before a full court rather than just a quorum), granted the writ of habeas corpus and vacated the conviction. In an unusually detailed, often caustic, description of how the state violated Griffin’s rights, the Court wrote:
“The State suppressed the fact that prison guards confiscated a sharpened screwdriver from inmate Smith just minutes after Bausley was stabbed… Smith was placed in administrative segregation for possessing the sharpened screwdriver, and the State successfully prosecuted Smith for possessing the screwdriver. The State was obviously aware of the evidence yet did not disclose it to Griffin.
“Griffin has established prejudice. The present state of the evidence in this case shows that there are at least five substantial post-trial developments that raise serious doubts regarding the factual accuracy of Griffin’s conviction.
“There is no physical evidence connecting Griffin to the weapon found in the gymnasium. There is no physical evidence demonstrating any contact between Griffin and Bausley. Instead, Griffin’s continued incarceration for Bausley’s murder is premised on the recanted testimony of inmate Curtis and the impeached testimony of deceased inmate Mozee. Overlaying the entire case is the revelation that the State failed to disclose evidence that tended to implicate Smith, impeach Curtis and Mozee, and bolster the trial testimony of inmate Rogers, who maintained that the inmate fleeing the crime scene was not Griffin.
“In light of these circumstances, Griffin’s conviction is no longer ‘worthy of confidence.’ Because Griffin has shown that the nondisclosure of the Smith evidence was prejudicial to Brady purposes, he has established the ‘prejudice’ necessary to overcome the procedural bar to granting him habeas corpus relief. Accordingly, Griffin’s conviction for the murder of James Bausley is vacated.”
The Court ordered the fifty-year-old Griffin’s release within sixty days unless the state decided to retry him. However, with one of the prosecution’s eyewitnesses now on record that he did not witness the murder, the credibility of the other eyewitness impeached by new evidence that he did not witness the crime, and a confession by Franks that he did commit the murder, the state had no evidence on which to proceed. In December 2012, Griffin was released on bond pending a retrial. On October 25, 2013, the prosecution dismissed the charges.
Nicholas Yarris
Pennsylvania
Nicholas Yarris was convicted of rape and murder largely on the testimony of a jailhouse informant, but in a sense he inadvertently implicated himself. His unlikely escapade began in late December 1981 with a routine stop by police for a traffic violation on a Pennsylvania roadway. A violent confrontation ensued in which Yarris was said to have attacked the officer. He finally was subdued and charged with attempted murder of a police officer. While in custody and being questioned, Yarris played a long shot in an effort to win favor with the police. He named an acquaintance of his as the man who raped and murdered a young woman just four days earlier in a brutal attack that had the police scurrying for leads to the perpetrator.
On December 16, a young sales associate from the Tri-State mall in Pennsylvania was abducted in her car when she completed her day’s work. When she was late returning home, her husband notified the police. Her yellow Chrysler Cordoba was soon found abandoned on a roadway in Chichester, Pennsylvania. Her body, covered with newly fallen snow, was found the following day in a church parking lot about half a mile from her car. She was still clothed, but her thick winter clothing had been cut open to give her attacker access. She had been beaten, stabbed, and raped, and it was later determined that she had bled to death from multiple stab wounds in her chest. Biological materials, including sperm samples and fingernail scrapings, were collected from the victim’s body. A pair of gloves, presumably belonging to the killer, was also found in the victim’s car.
The problem for Yarris was that when the man he identified as the woman’s assailant was ruled out by police, Yarris himself became the prime suspect. Conventional serological tests (as opposed to DNA) indicated that he could not be excluded as the source. To make matters worse, a jailhouse informant came forth to tell police that Yarris was their man. In addition, several of the victim’s co-workers volunteered that they had seen him harassing the victim before she entered her car. It was enough. Yarris was convicted in 1982 and sentenced to death.
A long struggle followed during which Yarris, insisting he was innocent, pressed for DNA testing of the evidence found at the crime scene. In 1989, he became one of Pennsylvania’s first death row inmates to demand post-conviction DNA testing to establish his innocence. At the time, DNA testing involved a prolonged procedure, and Yarris waited on death row as the testing of the various pieces of evidence continued through the 1990s. None of the tests were conclusive. Yarris’s luck finally turned in 2003 when a medical examiner, Dr. Edward Blake, conducted a final round of testing. It showed that the gloves found in the car and the spermatozoa taken from the victim’s underpants belonged to the same person, and it was not Nicholas Yarris.
Based on the new findings, the court vacated Yarris’s conviction, and he became the 140th person in the United States to be exonerated by post-conviction DNA testing, the 13th from death row where he had spent twenty-one years.
James Richardson
Florida
Had it all started just a few years later, events might have played out differently for James Richardson. But it was 1968, the whole country seemed to be on fire, the South was seething with a century’s worth of racial hostility, and small backwater towns like Arcadia, Florida, were still dishing out their own version of southern justice. A black, poverty-ridden fruit-picker like James Richardson was easy prey when a quick arrest was needed for a horrendous crime. And the crime of which Richardson was accused was as horrendous as one could imagine. He was charged, convicted, and sentenced to death for murdering all of his seven children.
Arcadia, the seat of DeSoto County, is located in a remote pocket of Southwest Florida between Sarasota and Fort Myers, about thirty-five miles inland from the Gulf of Mexico. The lush citrus groves fueled a large part of the local economy. James and his wife, Annie Mae, worked in those fields, picking oranges, earning twenty-five cents for each box they filled. Both were illiterate; James had an IQ of about seventy-five—not quite mentally retarded but low enough to be classified a “slow learner.” All the same, he was well liked in the community and reputed to be a devoted father. It was all the more shocking, therefore, when he was arrested on October 31, 1967, and charged with murdering his children.
The Richardson children, aged one to seven, had been poisoned five days earlier, their food laced with parathion, a highly toxic agricultural pesticide. Arcadia’s police chief, Richard Barnard, and DeSoto County Sheriff Frank Cline shared responsibility for the investigation. They searched the house and a small shed in the backyard and found nothing suspicious. Cline noticed a metallic scent which he knew to be parathion, but none was found on the premises. However, the following day, police received an anonymous phone call saying that a sack of parathion had been found in the shed behind the house. Cline knew his search had been thorough. “It wasn’t there yesterday,” he told the press. But it was there now, casting the first shadow of suspicion on Richardson. At the same time, word began drifting through town that Richardson had recently purchased a $14,000 life insurance policy for the children. The police now had what they believed to be motive, means, and opportunity. Richardson was promptly charged with murder. Annie Mae also was arrested and charged with child neglect.
The prosecution should have sensed that something was wrong with its case at the coroner’s inquest. One of those testifying was Bessie Reese, the Richardson’s next-door neighbor who had been watching the children the day they were poisoned. It was Reese who served the children lunch that day and, according to another neighbor, Charlie Smith, it was Reese who suggested they search the shed for the poison. Another witness, Gerald Purvis, an insurance salesman, testified he tried to sell Richardson life insurance for his children, but Richardson said he couldn’t afford it and no sale was made. The assistant prosecutor, John “Red” Treadwell nonetheless persuaded the coroner’s jury that Richardson might have believed that a policy had been purchased. The jury returned with an indictment: the Richardson children had been murdered with premeditation.
John Spencer Robinson, a thirty-year-old civil rights activist from Daytona Beach, became interested in the case as he watched it unfold on local television. Richardson said he liked the similarity in the sound of their names and chose Robinson to represent him from a list of names offered to him by the head of the Arcadia NAACP. It was, in some respects, an unfortunate decision. Although Robinson was convinced of Richardson’s innocence and totally committed to his cause, he was principally a family law attorney and had never tried a murder case. He and his partner, Richard Whitson, took the case at no charge.
At the outset, circumstances looked promising to Robinson. Bail was set at $7,500, incredibly low for a case involving seven murders. A few days later, an anonymous benefactor posted the bail, and Richardson was released. In addition, the child-neglect charges against Annie Mae were dropped. It appeared to the defense that the prosecution knew it had no case. They expected all charges would be vacated at a hearing to be held on March 25, 1968. However, they soon discovered the prosecutors had a new card to play; in fact they had two cards. Their names were Ernell Washington and James Weaver, and they were ready to tell a jury that Richardson had confessed to them when they were together in the Arcadia jail. It was the first hard evidence the state had, and the judge found it to be convincing. Bail was revoked and Richardson was returned to jail. The trial was set for the end of May.
The entire legal proceeding moved quickly. The jury, all white, was selected on the first day. The following day, Weaver took the stand and told his “confession” story. Washington was not able to appear in court. After testifying at the March hearing, he was released from prison and a few weeks later was shot to death in a local bar. But the state sent in a replacement from its bench. James Cunningham, a former inmate, testified that he too had heard Richardson confess. On the third day, the state rested. The defense tried to impeach Washington’s testimony, showing that he had been given probation on his attempted-murder charge in exchange for his testimony. A few other character witnesses were called, but it meant little. It took the jury just ninety minutes to return a verdict of first-degree murder. Since there was no recommendation of mercy, the judge imposed the mandatory sentence—death in the electric chair.
Not long after Richardson was sent away, Mark Lane, a New York attorney, came to Arcadia. Lane had achieved national renown in the sixties as the author of a book advancing a conspiracy theory for the assassination of President Kennedy. He was intrigued by the case and had begun doing research for a book entitled Arcadia, which would be published two years later. As he interviewed some of the central characters, he became increasingly convinced of Richardson’s innocence. He also began to have doubts about the role played by Bessie Reese. He learned, for example, that Reese had been convicted of killing her second husband in 1955 and had served four years of a twenty-year sentence before being paroled. He also discovered that her first husband had died under curious circumstances and that some suspected the cause of death was food poisoning. Charlie Smith told Lane it was Reese who had found the bag of parathion in the shed, as he had testified at Richardson’s trial. Finally, Lane learned that Reese had a grudge against Richardson. Her third husband had left her for Richardson’s cousin, and she blamed Richardson and threatened to “get” him.
On April 21, 1971, a year after Lane’s book was published, the appeals court unanimously affirmed Richardson’s conviction and sentence. But the specter of execution would soon be lifted. On June 30, 1972, the US Supreme Court handed down its decision in Furman v. Georgia, nullifying more than six hundred death sentences throughout the country. As the seventies passed, Robinson withdrew as Richardson’s attorney and was replaced by Lane and Florida co-counsel Ellis Rubin. In 1988, Lane returned to Arcadia for a public rally in support of Richardson and obtained possession of the state’s nearly 1,000-page file of the Richardson case, which apparently had been pilfered years earlier from the office of ADA Treadwell. The file contained numerous bits of information Lane thought was suppressed evidence. Encouraged by his findings, Lane visited Bessie Reese at a nursing home where she was spending her last years, suffering from Alzheimer’s disease. Two aides at the home told Lane that Reese had confessed many times that she had poisoned the children.
The case was beginning to break open now. Lane turned the mildewed Richardson file over to Governor Bob Martinez and petitioned the governor for his immediate release. He also petitioned the state supreme court for a new trial. Unexpected help came from a young woman, Virginia Dennis, who was an eight-year-old friend of the Richardson children at the time of the crime. Virginia said she had eaten breakfast with them on the day they died, but neither she nor they had gotten ill. That meant the poison had to be added to their food at lunch, after both James and Annie Mae had left for work.
Martinez ordered a new investigation and turned the case over to one of the state’s top prosecutors, Dade County District Attorney Janet Reno, who later served as US attorney general in the Clinton administration. Two months later, on April 11, 1989, Reno filed her report. It contained a litany of prosecutorial misconduct and perjured testimony—information withheld from the defense; witnesses, including Sheriff Frank Cline, who had lied under oath; a jailhouse snitch who had recanted. At a hearing on April 25, retired Circuit Court Judge Clifton Kelly, who had been recalled to service to hear the case, said he did not believe Richardson had been given a fair trial. “The enormity of the crime,” he said, “is matched only by the enormity of the injustice [done] to this man.” The judge set aside the conviction and ordered Richardson released.
Richardson, who learned to read and write in prison, filed suit against DeSoto County for wrongful conviction. He was awarded a settlement of $150,000, most of which went to his lawyers. Having spent nearly twenty-two years of his life in prison, he was ineligible for Social Security benefits. Under Florida’s compensation statute, he would be entitled to a payment of $50,000 for each year he spent behind bars. But the statute requires DNA evidence and none was available. As of 2014, at age seventy-nine, Richardson was still pursuing legal remedies that would make him eligible for compensation.
He and his wife, who had stuck with him during his years of imprisonment, were later divorced. Richardson, who had suffered two severe heart attacks, remarried and he and his wife, Theresa, took residence on the ranch of his cardiologist in Wichita, Kansas. Bessie Reese died of Alzheimer’s disease at the nursing home in 1992.
Commentary: Shades of Kafka
In a criminal justice system fraught with corruption and riddled with invitations to error, there is no testimony as toxic as that of a jailhouse snitch. According to the Midwest Innocence Project, an informant or jailhouse snitch testified against the defendant in more than 15 percent of wrongful conviction cases overturned by DNA testing. Statements by people with incentives to testify, whether members of the law enforcement community or convicts already serving time, are invariably suspect. Yet, such statements are often the central evidence in convicting innocent people. The situation is aggravated by the fact that the jury is generally unaware that the witness is being rewarded for his testimony. Defendants have been wrongfully convicted in cases in which snitches have been paid to testify; have offered testimony in exchange for early release from prison; or where they claim to have heard the defendant confessing to the crime. Unfortunately, perjured testimony is not confined to convicts and fellow inmates. Law enforcement officials also have an incentive, on occasion, to seek a conviction on manufactured evidence. Police officers and prosecuting attorneys, after all, have staked their careers on arresting and convicting criminals, and all too often, they are ready to cut a deal here or there in order to obtain a conviction in a case where the forensic evidence is none too convincing. In many instances, law officers do not testify themselves, but seek out potential informants and feed them the information needed to provide false testimony.
Soliciting snitch testimony is all too easy, for the snitch has nothing to lose. At worst, he will fail to get what the state has promised him; at best, he might receive a reduced sentence, lesser charges, better accommodation while serving the rest of his sentence, or possibly an early release. Added to the mix is that jailhouse prisoners are not likely to be overly devoted to the truth. High-security prisons would not be the place of choice for one who, like Diogenes, was searching for an honest man.
A 2005 report by the Center on Wrongful Conviction at Northwestern University in Chicago profiles thirty-eight death-row defendants convicted on the false testimony of snitches whose convictions were later overturned. According to the report, snitch testimony is the leading cause of wrongful conviction in capital cases, where the stakes are highest. Judges in two such cases—one in Georgia, the other in Pennsylvania—have described such proceedings as Kafkaesque.
James Creamer
Georgia
James Creamer and six co-defendants were convicted of murdering two physicians in Marietta, Georgia, in a 1973 trial that a US district court judge said “bordered on the Kafkaesque.” He was not exaggerating. The judicial proceeding was tainted from the start and included perjured testimony from an accomplice, prosecutorial misconduct, and junk science, including the introduction of evidence secured during sessions of hypnosis.
Drs. Warren and Rosina Matthews were found shot to death in their home in May 1971 in what looked like an attempted robbery gone awry. Creamer and six other suspects were taken into custody and prosecuted almost entirely on the word of Deborah Ann Kidd, who said she had accompanied the men to the Matthews’ home. Testifying under a grant of immunity, Kidd named Creamer as the shooter. The seven suspects were found guilty by a Cobb County jury. Six were given life sentences. Creamer, the presumed shooter, was sentenced to death. In 1974, the Georgia Supreme Court unanimously upheld all the convictions and sentences.
The case began to unravel a year later following an investigation by the Atlanta Constitution. The newspaper’s probe revealed that Kidd initially had claimed that she had been high on drugs the day of the crime and was unable to recall any of the events that took place. Later, in a hypnotic state induced by a police-appointed hypnotist, she said she remembered that Creamer had committed the murders, with the other six defendants serving as accomplices. The prosecution had intentionally withheld from the defense the transcripts of the statements Kidd had made prior to testifying. The transcripts revealed she had offered a number of conflicting descriptions of what had transpired at the crime scene. The identity of the shooter changed from one version to another and so did her identification of those who were present. At one point, she confessed to having shot the victims herself. The Constitution also discovered that Kidd was romantically involved with one of the detectives assigned to the case.
Charging the prosecution with willful destruction of the taped testimony, District Court Judge Charles A. Moye ordered all the convictions to be reversed. The state appealed, but its case was dissolving rapidly. Kidd admitted she had lied in her trial testimony. To clinch matters, Billy Birt, a prisoner already on death row for another crime, confessed that he and two other men—one who was in federal prison and another who was then a fugitive—had murdered the two doctors. Charges against all seven men were dropped and they were released in 1975. The district attorney, however, said he was not convinced of their innocence and he declined to prosecute Deborah Kidd for perjury.
Neil Ferber
Pennsylvania
A jailhouse snitch was instrumental in getting Neil Ferber, a thirty-nine-year-old furniture salesman, convicted of carrying out a gangland-style hit on a Philadelphia mobster in 1981, but not without some help. There was the mistaken testimony of two eyewitnesses and a police conspiracy that a judge called a “Kafkaesque nightmare” and a “malevolent charade.”
On the evening of May 27, 1981, Chelsais “Steve” Bouras, a well-known underworld figure, was gunned down by two men while dining in the Meletis Restaurant in South Philadelphia. His dinner companion, Jeanette Curro, also was slain. A month later, Ferber was arrested after being identified by two eyewitnesses—a man and his wife—who said they saw the killer run out of the restaurant, remove a ski mask, and flee down the street. The woman identified Ferber in a police photo spread, only to change her mind after seeing him in person in a police lineup. Her husband, however, maintained that Ferber was the man he saw that night.
At the trial, the most incriminating testimony was provided by Gerald Jordan, a former cellmate of Ferber’s at the Philadelphia Detention Center. Jordan, who had spent much of his adult life serving time for petty crimes, told the jury that Ferber had admitted being one of two gunmen who had shot Bouras and Curro. No further evidence was presented and none was needed. Ferber was convicted and sentenced to death.
The district attorney’s office, as well as some Philadelphia homicide detectives, appeared to have lingering doubts regarding the case that was presented. About two years after Ferber was convicted—years he spent on death row—the DA’s office told the court that Jordan had failed a lie-detector test concerning Ferber’s guilt, a bit of information that had not been shared with the defense. At around the same time, Jordan recanted his testimony and said he never believed Ferber had had anything to do with the murder. On January 3, 1986, his last day in office, District Attorney Edward G. Rendell asked Common Pleas Judge Robert A. Latrone to grant Ferber a new trial. Latrone immediately threw out Ferber’s conviction, and Rendell’s successor, Ronald D. Castille, declined to retry him. He was freed the following day.
Ferber did not lose much time in filing suit against the city, contending he had suffered bleeding ulcers and a nervous breakdown as a result of his unjust imprisonment. In 1993, a Common Pleas Court jury awarded him $4.5 million. As reported in the Philadelphia Inquirer, the jury found that Ferber had been framed by homicide detective Daniel Rosenstein and a police sketch artist, Dominic Frontino. The award was overturned by Common Pleas Judge John Herron because of technical changes in the liability laws. But the judge made it clear that he believed Ferber had been railroaded by corrupt officials and noted that the wronged man could seek further recourse in federal court. Herron described Ferber’s trip through the criminal justice system as a “Kafkaesque nightmare of the sort which we normally characterize as being representative of the so-called justice system of a totalitarian state.” He found that police had manipulated witnesses, “withheld important information, tampered with identification evidence, and misled judicial officers.”
Ferber declared his intention to press his case for damages, but in 1996 the city agreed to a settlement. Ferber was granted $1.9 million, a sum Rendell called “fair and appropriate, and a fraction of what a jury would have awarded.” In settling the civil suit, the city did not acknowledge any impropriety in its handling of the case.
Willie Brown and Larry Troy
Florida
Willie Brown and Larry Troy were already in prison when they were convicted in 1981 of stabbing to death Earl Owens, a fellow inmate, at Florida’s Union Correctional Institution. The two men were held as suspects in solitary confinement for seventeen months before they were formally charged with the crime. Then, three inmates came forth and identified Brown and Troy as the murderers. Since two of the inmates were known to have mental problems, the word of the third man, Frank Wise, became the pivot of the state’s case. Wise was not a prosecutor’s ideal witness. He was doing time for murdering Troy’s cousin and was quoted before the trial as saying that he hated Brown and Troy so much that he would like to see them executed whether they were guilty or not. He now had the opportunity to fulfill his wish. Wise testified at the trial that he saw both men leaving the victim’s cell shortly before the body was discovered. His testimony resulted in Brown and Troy being convicted and moved from the prison’s general population to death row.
Salvation, at least for the time, came to the pair in the form of a German anti-death-penalty activist, Esther Lichtenfels. In the course of her work, Lichtenfels visited Florida’s death row on several occasions, and she and Brown fell in love. She was determined to help free him, and over the next several years invested $70,000 in her own investigation of the case. Her efforts were given impetus in 1987 when the state supreme court reversed the convictions because the prosecutors did not share with the defense statements they received during prison interviews.
While awaiting a new trial, Lichtenfels managed to set up a sting operation that freed both men from death row. Wearing a legally authorized tape recorder and fitted with a hidden microphone, she recorded Wise saying that he had lied in his testimony and offering to recant and tell the truth in exchange for $2,000. On the basis of the recorded admission, all charges against Brown and Troy were dropped, and Wise was charged with committing perjury.
Brown, who was also serving twenty years on a robbery charge, left prison in 1988 and had hardly tasted freedom when he and Lichtenfels were married. Neither they nor Troy lived happily ever after. Troy, who had been serving a twenty-five-year sentence for another murder, was released in 1990, but he was not free for long. Seven months after leaving prison, he was arrested for selling cocaine and was sent to the Charlotte Correctional Institution in North Carolina. Brown’s life continued to be driven by drug use and robberies. He was returned to prison for robbing a bank in Springfield, Massachusetts, and later arrested for holding up a bank in Dunedin, Florida, brandishing the handle of a broomstick, then leading police on a high-speed chase in a stolen car.
Brown insisted that the authorities had unfairly made him a target. “In their eyes, I was never exonerated,” he said from jail. “There’s enough pain in this stuff to last a lifetime.”
Walter McMillian
Alabama
Walter “Johnny D” McMillian came close to becoming a victim of Southern justice in 1988 when he was sentenced to death for killing a white eighteen-year-old store clerk in Monroe County, Alabama. McMillian, a black logger, was railroaded in a trial that took less than two days and convicted on the testimony of three criminal suspects. The death sentence was imposed by the judge, who overrode the jury’s recommendation that McMillian be given a life term in prison. Fittingly enough, the judge was named Robert E. Lee Key Jr. It took the efforts of a zealously committed defense attorney, Bryan Stevenson, under the bright light of publicity provided by the television show 60 Minutes, to save McMillian’s life.
McMillian was convicted of killing Ronda Morrison while robbing the shop in which she worked. Arrested with him was Ralph Myers, who agreed to testify against McMillian in return for consideration from the state. The prospect of just treatment looked dim for McMillian from the outset. The fact that he had a white girlfriend and his son had married a white woman did not sit well in that part of the country. Shortly after his arrest, the Monroe County sheriff told him, “I ought to take you off and hang you like we done that nigger in Mobile, but we can’t.” Nonetheless, what followed was in every sense the equivalent of a judicial lynching.
Two weeks after his arrest, McMillian was placed on death row, although he had no prior criminal record. Amnesty International believed that no other defendant in the United States had ever been placed in a death row cell while still awaiting trial. On a change of venue, the trial was moved from Monroe County to Baldwin County, the locale of To Kill a Mockingbird, Harper Lee’s well-known novel about Southern racism.
The trial, a caricature of criminal justice, was, in Thomas Hobbes’s phrase, nasty, brutish, and short. The core of the state’s case was the perjured testimony of three witnesses, including a convicted murderer, who placed McMillian at the scene of the crime. The defense, by contrast, produced twelve black witnesses who testified that McMillian was at a church fund-raising fish fry when the murder occurred. The jury returned a verdict of guilty and voted seven-to-five against the death penalty. However, Judge Robert E. Lee Key Jr. thought the jury too forgiving. He imposed the death penalty, and McMillian officially took his place as a denizen of death row. The case attracted the attention of the ubiquitous Bryan Stevenson, a Montgomery, Alabama, attorney and director of the Equal Justice Initiative of Alabama. Stevenson had been representing condemned inmates in the South for thirteen years, and as he began to look into McMillian’s case he discovered much that was amiss. The prosecution, he learned, had hidden exculpatory evidence, including the existence of a witness who had seen the victim alive after the time she was presumed to have been murdered by McMillian. There also was an unedited police tape which differed markedly from the one given to the defense and appeals teams. It contained a statement by a prosecution witness complaining that the police wanted him to frame an “innocent Johnny D.” For added measure, all three prosecution witnesses recanted their testimony and admitted they had lied.
Despite the mounting evidence of official misconduct, state courts denied appeals on four occasions. At that point, Stevenson decided to go public. He took McMillian’s story to CBS-TV and was interviewed by Ed Bradley on 60 Minutes. With the story now in the open, the Alabama Court of Criminal Appeals reversed the conviction. The county district attorney acknowledged that the case had been bungled and joined the defense in getting the charges dropped. McMillian finally was freed in 1993 after serving nearly six years on death row. “Often times,” Stevenson said, “obtaining evidence suppressed by prosecutors or police can take many years of litigation.”
In 1997, Stevenson argued before the US Supreme Court that McMillian should be permitted to sue the county sheriff who suppressed evidence that would have benefited his defense. The court ruled against him, but McMillian settled with other parties involved in the case for an undisclosed sum. In 2001, Alabama passed a statute granting compensation to prisoners who have been exonerated.
“No man who has had to withstand the psychic trauma of sitting on death row should have to go through such rigmarole to get reimbursed,” Stevenson said. “The presumption should be, if you were exonerated, the state should compensate you for the time you were in prison and to help make your transition easier into the real world. I think that’s something society owes someone who has been deprived of the liberties we take for granted.”
Curtis Kyles
Louisiana
Curtis Kyles became something of a career defendant, having been tried five times for the same crime and imprisoned for fourteen years before being freed on a federal writ of habeas corpus. At one point he had come within thirty hours of execution.
Kyles was arrested in 1984 for the murder of Dolores Dye during a car theft in a store parking lot in Gretna Parish, Louisiana. The case against him hinged on the testimony of four eyewitnesses and some strong physical evidence: the murder weapon, a spent cartridge, and the victim’s purse were found in his apartment. Nevertheless, his first trial, in November 1984, ended in a hung jury. A month later, he was retried, convicted, and sentenced to death. His appeals to state courts won him a remand for an evidentiary hearing, which would determine whether the existing evidence was sufficient to sustain the verdict, but the state trial court denied relief. He then took his appeal to the State Supreme Court which rejected his application for discretionary review.
During the appeals process, one of the eyewitnesses recanted, stating in an affidavit that she had not seen the killer’s face but had identified him under pressure from police and prosecutors. One prosecutor, she said, told her that “all the other evidence pointed to [Kyles] as the killer.” To assure that she would be able to pick out the defendant in the courtroom, she was told that “the murderer would be the guy seated at the table with the attorney and that [he] was the one I should identify,” the affidavit said. It was also discovered that the state had withheld critical information about another witness—a paid informant who might have been the actual killer. While the informant had given detailed testimony implicating Kyles, there was undisclosed evidence indicating that the snitch himself had had possession of the victim’s belongings and might well have planted the incriminating items in Kyles’s apartment. In addition to deflecting suspicion from himself, the informant, who fit another eyewitness’s description of the murderer, might also have been motivated by a reward offered in the case.
Having lost all his appeals in the state courts as well as the US Court of Appeals for the Fifth Circuit, Kyles found relief from the US Supreme Court on a habeas corpus petition in April 1995. In a decision rendered just a few days before he was to be executed, the high court remanded the case based on failure of police and prosecutors to turn over exculpatory evidence to the defense before the trial and denounced the “uncritical readiness” of the prosecution to accept the informant’s questionable story. The court ruled that Kyles was entitled to a new trial because there was “reasonable probability” that the disclosure of the concealed evidence would have produced a different result.
But Kyles’s long journey into the night of the criminal justice system was far from over. His third trial, in October 1996, ended in a deadlocked jury, and subsequent trials in the next two years had the same result. After the fifth trial and fourth mistrial, prosecutors decided to drop the charges and Kyles was released.
Though Kyles suffered the oppressive indignities of wrongful conviction, he might count himself fortunate that his petition for habeas corpus came as early as it did. A few years later, the bar for habeas petitions was raised in deference to the jurisdiction of state courts. Had the strict time lines and standards of the Anti-Terrorism and Effective Death Penalty Act, passed in response to the 9/11 attack, been in effect in 1995, Kyles might well have been returned to Louisiana’s death row to await execution.