STATE SUPREME COURTS AUTOMATICALLY review death penalty convictions. If the court denies that automatic appeal, the conviction is considered final, which means the next round of appeals, the postconviction appeals, can begin. This round isn’t about the defendant’s guilt or innocence but only about whether he or she got a fair trial. This is why convictions are so hard to overturn: the defendant is now presumed guilty and can only get a new trial by convincing the appeals judge that his trial was somehow unfair.
There are two main ways for this to happen. The first is for a defendant to claim ineffective assistance of counsel (IAC)—that your lawyer was so bad his work denied you a fair trial. The problem here, as mentioned before, is that nothing a lawyer did as a conscious strategy can be considered “ineffective,” and Greenberg had made a point of enshrining many of his questionable moves as rational strategic decisions.
The other most common violation that can get a defendant a new trial is called a Brady violation, which refers to a case in which the Supreme Court ruled that the state must turn over to a defendant any information that might help his case. What information exactly this applies to is left up to prosecutors, and if they withhold something crucial it can take years for a defendant to even find out about it—if he ever does.
Then, even if a defendant does prove that one or both of these violations occurred, a judge has to find that the bad lawyer or the withheld evidence could have made the jury vote differently—another very high bar to get over, since prosecutors will always argue that the bad lawyering or the withheld evidence wouldn’t have changed the outcome of the trial. And unless the DA has withheld something truly shocking—a videotape of someone else committing the murder, say—it’s all too easy and common for judges to agree with them.
As Lara Bazelon explained on Slate in 2015, “the Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other ‘technical’ violation to back up your argument.” Actual innocence claims, the court ruled, were too “disruptive and unfair to the state, which needed to have things settled once and for all.”
In 2009, Justice Antonin Scalia summed it up starkly: the Supreme Court has “never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a . . . court that he is ‘actually innocent.’”
In other words, innocence by itself is not a legal basis to overturn a conviction.1
A couple of examples of possible Brady material from Walter’s case: Was Mark Greenberg entitled to know about Devlin and Worrell’s interrogations of the Fahys in February 1992? Would the jury knowing about them have likely changed their verdict? What about the fact that Jay Wolchansky was schizophrenic and having trouble with his medication at the time he supposedly was talking to Walter? Greenberg deserved to know that—he even asked about it and was lied to. Would it have been enough to change the jury’s verdict?
And that’s how these appeals go: defendants raising these violations, prosecutors blindly dismissing them, an occasional judge agreeing there was a violation but saying it wouldn’t have mattered. The cases plod through the courts for years and years; the lucky defendants find a judge who is either willing to say that a particular action by a defense lawyer or a particular Brady violation by a prosecutor is enough for a new trial or is willing to look at how the whole case fits together and order the state to allow DNA testing of all the evidence.
When I first contacted Mark Greenberg a few years after Walter’s conviction, he said he’d talk to me, though I could tell he didn’t much want to. He gave me all the information about the case he could; he told me to get over my idea that trials are about seeking justice. He understood that for appeals purposes, Walter had to claim he’d been ineffective, but it was clear he didn’t like it. While I recognized he’d fought harder and longer for Walter than anyone else and had come within a second of getting him acquitted, I thought he’d been steamrolled by Judi Rubino and seemed at times to have given up objecting to some of the outrageous things she said. Also, his decision to not put Walter on the stand at the second trial was, according to every lawyer I’ve spoken with, a mistake.
“It’s a bad case. A bad, bad case,” he said, shaking his head as our interview ended.
I thought of him when I read this description of what it’s like to lose a case when your client is innocent from David Feige, a public defender in the Bronx:
“If you lose, the case haunts you, so that in the middle of the night and until sunrise you wonder what you did wrong, what you forgot, what you could have said or done—how such a thing could have happened. It is a searing, guilty pain that can last for years, if not forever.”2
Over the years, Greenberg always did what he could to help Walter; he took my calls to briefly answer questions or try to point me in the right direction. Once, in the summer of 2003, he called me from his car.
“Lightning might just have struck,” he said. Raymond Sheehan, one of the men David Schectman had positively identified in 1988 as the man carrying the TV box, had been a suspect in Barbara Jean’s murder because he was a suspect in the 1987 murder, not far from Rutland Street, of his young neighbor, Heather Coffin. Now, all these years later, DNA testing had finally connected Sheehan to the Coffin murder and he’d admitted to killing her.
Greenberg wrote to officials in the DA’s office to make sure they were aware of Sheehan’s connection to Barbara Jean’s case. To this day they’ve done nothing to follow up. On the contrary, they’ve been fighting DNA testing in Walter’s case on the grounds that it wouldn’t provide any useful information—though, of course, if the DNA from Barbara Jean’s fingernail scrapings matched Sheehan, Felice, Ward—or Walter, for that matter—the case would be solved.
I went to Philadelphia to watch Sheehan plead guilty to Heather’s murder. I expected something dramatic; certainly the solving of the case had been. But the event was mundane: Sheehan walked into court, a short and by then very fat man in an oversized, dirty T-shirt, quietly admitted to raping and killing a child, and was led away to spend the rest of his life in prison. Through his lawyer, he denied having anything to do with Barbara Jean’s murder.
I met Judi Rubino in the fall of 2003 at the courthouse in Philadelphia; she had a case going, so I got there an hour early to watch her work. She came in, a distinctive figure, wide and solid in a bright red jacket, hobbling slightly. She had silver-blonde hair, and when she sat at the prosecution table, she put on big, round, 1970s-style eyeglasses. A defense lawyer talked with her for a while, arguing while she arranged her papers. She told him, “There’s been a preliminary hearing; there’s nothing I can do,” and the lawyer said, “The description was of a guy 6ʹ, 190 pounds and my guy is 5ʹ, 110 pounds.”
The defense lawyer was getting frustrated, as was the young defendant sitting in front of me. I thought of the parallel with Walter’s case—a defendant who looked nothing like the person described by eyewitnesses.
When the hearing was over, Rubino got up to leave the courtroom and I introduced myself. She said, “Come with me.”
We sat in a small conference room just outside court with three other people, one a uniformed police officer and two I took for detectives. They were looking over crime scene photos, one of a car that looked like it had been in an accident, and barely glanced at me. The room was so small my chair was in the doorway.
Rubino was friendly. “So how’d you get on this one?” she asked, meaning Walter’s case.
“Completely at random,” I answered. She glanced at me and kept working, occasionally asking me a question.
When she finished her meeting we moved to a bench outside the courtroom. She was pleasant, which wasn’t surprising, and modest, which was, given what I knew of her courtroom demeanor. She smiled and maybe even reddened a bit when I mentioned her legendary status in Philadelphia legal circles, and when I asked about her background, she said, referring to her accomplished siblings, that she was the “dummy” in her family. I asked how long she’d been an ADA (thirty-three years, thirty-one in homicide) and if she’d really never lost a case. She smiled and said of course not, everyone lost some; she’d lost the Jogger case. I said I thought that was the first one she’d lost, and she shook her head.
Did she remember Barbara Jean’s murder, Walter’s arrest, the first trial?
“I do,” she said, “because it was a big case. I was [working] in the [DA’s homicide] office when it happened. I think I was in the courtroom [the day of the mistrial]. I can’t remember for sure because I visualize it so easily. It was a big case. We may have all gone over.”
At one point Rubino referred to Alfred Szewczak, the holdout juror from the first trial, as having “backbone.” I thought about backbone, specifically about the one I’d wished to insert in the back of many of the ADAs in New York who’d overseen the release of my father’s murderer.
We want prosecutors to be tough on murderers, we want murderers punished, and most people don’t mind if police or prosecutors push the rules to do it. But what, then, is too far?
I asked Rubino if they’d offered Walter life in prison in exchange for a guilty plea, something Walter had told me he’d rejected but Mark Greenberg didn’t remember.
“We would’ve offered life for a guilty plea,” she said. “It’s more or less the policy of the office that if they’ll plead for life we’ll do it unless it’s the killing of a police officer or fireman in the line of duty.”
Walter, then, had decided that risking death was better than pleading guilty to something he didn’t do. To this day he feels the same way; he doesn’t want a deal, he wants to be exonerated and freed. Sometimes when a DA realizes there’s a real possibility there’s going to be an exoneration, he or she will offer the inmate a hellish bargain: plead some version of guilty to the murder, get sentenced to time served, go home. This way the DAs never admit they got it wrong and the inmate is never officially exonerated—but he gets to go home.
This is what happened at the end of the very famous West Memphis Three case—three young men convicted on the basis of a false confession given by one of them, who was intellectually disabled, an outlandish story about satanic rituals without any other evidence to back it up. After almost twenty years, when DNA results undermined the case even more, the DA offered the three young men Alford pleas, the ultimate in half measures: the defendant acknowledges the prosecutor has enough evidence to convict him but maintains his innocence; the judge sentences him to time served, and he goes home.
Two of the West Memphis Three defendants wanted to take the deal; the third, Jason Baldwin, didn’t. But Jason’s friend and codefendant, Damien Echols, was on death row and could be executed, so Baldwin took the deal.
To that point in our conversation, nothing I’d asked Rubino seemed to give her much pause. But when I asked about John Hall and Jay Wolchansky, she seemed like someone jumping from rock to rock in a fast-moving river.
“We didn’t use John Hall,” she said, referring to the Ogrod case.
“Right. And why not?” I asked.
“He just had a lot of baggage.”
But she’d tried to use him in the Kimberly Ernest case.
“Well, I’m not sure what year that happened,” she said. “I—I’m not sure whether the jogger [Ernest] case had even occurred yet.”
I reminded her that the Jogger trial was in March 1997, five months after Walter’s, and that Hall told a defense investigator in August 1996 that he wasn’t being used in the Ogrod case because she was going to use him in the Ernest case.
“Yeah, but then I didn’t use him in the Jogger case,” Rubino said. “So I wasn’t going to use him. I just didn’t want to use John Hall, period, if I didn’t have to. And I didn’t use him in either case [Ogrod or Ernest]. John Hall had been involved in too many cases, and I just didn’t want to use John Hall. I didn’t use John Hall against his stepson, either, on the Jogger case.”
Was she saying she’d decided not to use Hall on the Jogger case before it became public that he’d had evidence fabricated?
“No,” she said, “I didn’t want to use him, but I probably would have used him just because of the relationship [with the defendant, his stepson], but then when I looked into things further, there was no way I was putting him on the stand.”
So she may not have wanted to use Hall if she didn’t have to, but she was going to until it became public knowledge that he’d had evidence created to frame his stepson. I believed Rubino hadn’t been thrilled to use Hall; they probably brought Wolchansky in because they both knew his credibility wasn’t good and having a second source would be helpful.
I asked Rubino if the differences between the snitch story and Walter’s statement to Devlin and Worrell had concerned her.
“I don’t remember now what the differences were,” she said. “But I don’t think that defendants necessarily tell it all when they’re talking to cellmates . . . they try to make it look good for themselves, they want to tell something to get it off their chests, but they don’t necessarily want to tell all the details. And Wolchansky may not have remembered all the details precisely. I think that . . . probably the statement [to detectives] was more accurate, but the substance [of Wolchansky’s letter] was that he had done it.”
This surprised me, since it was the opposite of the story she’d told at Walter’s retrial.
“What if I could prove that Hall had made up the Wolchansky story?” I asked.
“Well, he could’ve helped [Wolchansky] write it; I don’t believe that he fabricated the story,” she said. “John Hall’s going to admit that he made that up? I don’t know how you would document it, and I wouldn’t believe anything John Hall said, period.”
This amounted to two surprising concessions: first, that Hall might have helped Wolchansky with the Ogrod story, since Wolchansky had testified that no one helped him with it, and second, that John Hall was a chronic liar.
“Has Jay Wolchansky said that [Hall made up the Ogrod story]?” she asked. “Unless Jay says that he committed perjury on the stand, then I don’t know what proof there could be. If Jay wants to say he committed perjury, that’s something different.”
“So John Hall’s involvement in this case is peripheral?” I asked.
“Absolutely,” she said. “He wasn’t a witness. He wasn’t used as a witness. And he got nothing for it. And as far as I’m concerned, neither did Jay.”
“My understanding is that John did get a—”
“He didn’t get anything from me,” she said. “I don’t know what he could’ve gotten from anybody else. He didn’t get anything from us on any of the cases. I mean, Bucks County may have done stuff for him, but they kept locking him up. And we caught him in lies, and we did nothing with him.”
This was more like the courtroom Rubino, subtly overstating her case. She hadn’t been the one to catch Hall’s lie in the Jogger case, and even after it came out she had still wanted to use him. As for any deals Hall may have gotten, she was being very specific: Hall hadn’t gotten anything from her or her office but could have received help from other agencies. And it was true that the four Philadelphia homicide detectives who showed up at Hall’s hearing before Judge Biehn in the spring of 1996 to testify about Hall’s cooperation in the Ogrod case and several others were not from the DA’s office. But there had also been the letter from the former head of the DA’s homicide office.
“OK,” I said. “But, again, it’s [Hall’s] relationship with Jay [Wolchansky] that I find worrisome.”
“I don’t know what their relationship was,” Rubino said. “I don’t know when either spoke [to authorities about Ogrod]. You’re telling me [that Hall making up the Ogrod story and giving it to Wolchansky is] documented. I don’t know what documentation you have, and unless you have something from Jay saying none of that was told to him by Walter and that he made it all up and he’s willing to testify to the fact that he committed perjury, that’s something else. And that doesn’t eliminate the statement. That doesn’t make Walter innocent.”
I agreed that proving the snitches lied didn’t prove Walter innocent. But it would prove that his trial had been unfair.
“I mean, it might get [Walter] a new trial if it were [proven]—and then you’d have to believe that [Wolchansky] did commit perjury,” Rubino said. “I mean, we have people recanting all the time.”
In other words, she wouldn’t believe any of this unless Wolchansky told her he’d committed perjury, and even then she wouldn’t believe him, because people recant all the time. Recanting a bogus story apparently requires a level of proof that passing off the story initially did not.
I thought of what Rubino had said to Greenberg in one of their arguments in Judge Stout’s chambers: Once we get a conviction, I will worry about error.
I asked Rubino about Marc Frumer, the former ADA, with whom, I’d been told, she was friendly.
“Nice little guy,” she said. “I don’t know him real well.”
“Did you know at the time of the Ogrod trial that he and his father had both done work for Walter and his brother? That he represented Ogrod’s brother?” I asked.
“No,” she said. “No. Why would I? Frumer had actually no connection to me and the Ogrod case.”
“He was Wolchansky’s lawyer,” I said.
“I didn’t even remember that,” she said. “I don’t even remember dealing with him on this one.”
“Dealing with [Frumer] on this one at all?”
“Right.”
I started to ask her about some of Hall’s other snitch cases.
“I don’t even know what they are,” she said.
But she’d already said that she’d known about the Dickson case and that Hall had “too much baggage” to use him against Walter. So she’d known at least that some of her own colleagues had found Hall stories to be false.
I told her about Hall’s 1996 claim that he’d spoken to Walter at Joseph Casey’s suggestion.
“I don’t believe that either,” Rubino said. “He might’ve done it on his own because he wanted something. Because John always has an axe to grind. But I don’t think Joe Casey sent him in to talk to Walter Ogrod. Because that’s not something we do. We do not send inmates in, because then their testimony’s worthless.”
She said she’d never heard that Hall read a Bucks County inmate his Miranda rights in the fall of 1994 before taking his confession or of the August 1994 proffer of cooperation between Hall and Joseph Casey on the Martorano case.
“I just didn’t want to use John,” she said again. “He had been using drugs, he was involved in too much—phony scripts and, I mean, he just had too many credibility problems to suit me.”
Wolchansky, she said, she believed.
“Jay’s situation was totally different than John’s,” she said. She believed his letter; she talked to his daughter, talked to him, and found him credible in a way she didn’t find Hall.
“[It was] my own evaluation of his credibility,” she said. “I think he had been a witness in another case, but it didn’t involve me, and I didn’t know him from before,” she said, dismissing his botched testimony at Dickson’s first trial. “He was concerned about this case because of his daughter. And she came to the courtroom and she was just a sweetheart.”
She insisted that as far as she knew, Wolchansky got nothing for testifying against Walter, that any deal he got on his open cases was part of “whatever arrangement there was on that case itself.”3
“I mean, we didn’t do anything to get him a better sentence,” she said. “If that [Wolchansky’s 1995 plea deal] was not kept open, then it wasn’t part of this case. Anytime there’s testimony that’s a quid pro quo for a deal, we don’t sentence them until after they’ve testified.”
This sounded good but didn’t address the many ways the state can help a snitch. And the fact remains that Hall, Wolchansky, and their lawyer all believed they’d gotten deals.
For a moment during our back-and-forth Rubino seemed mildly annoyed, touching her forehead as if she felt a headache coming on.
“I thought you were just writing a book, not trying to get the guy a new trial,” she said.
I asked what the difference was. I’d set out to tell a story, found out the story was of an innocent man on death row, and thought he at least deserved a new trial, one without John Hall all over it.
Rubino was convincing but had contradicted herself or her previous positions on important issues several times. Could she be unaware of these contradictions? And if she did understand them, how could she be so certain of Walter’s guilt?
I’d talked about this with Mark Greenberg.
“Forget the requirement that the prosecutor seek justice and not just convictions,” he’d said. “I mean, that’s the goal, but from [Rubino’s] standpoint, she is invested with the belief that this guy is guilty.”
How could he be sure Rubino really believed that? I’d asked him.
“Because she told me,” he said. “She said to me, repeatedly, ‘You know he’s guilty. How can you fight so hard for a guy like that?’ She kept saying that to me.”4
That sounded to me like Rubino gaming him during the trial, trying to get in his head. But Greenberg believed her.
Sometimes I look at old newspaper clippings of Walter Ogrod in handcuffs being led down the hallway and read the old headlines—he confessed. It’s easy to see what John and Sharon Fahy see: a face for the hate, a man who killed their little girl, a psychopath.
But if you look at the picture and think he’s innocent, does he look evil or scared, a psychopath or a bewildered and terrified young man with ASD who knows he didn’t kill anyone but also knows everyone around him thinks he did and wants him dead?
Walter was arrested and tried based on a confession, but a jury didn’t believe it. So the Commonwealth of Pennsylvania took him back to trial using a story made up by one known liar and told by another, a story presented to the jury as the true facts of the case even though if it were true the original basis for Walter’s confession and arrest was false. Despite the many impossible details in it, Walter was convicted. And now Rubino had just told me that any problems there might be with the snitches fabricating that story didn’t really matter because, after all, Walter’s original statement to police was the truth.
And that wasn’t just Judi Rubino’s argument to me: it’s the position the Commonwealth of Pennsylvania has taken in defending Walter’s conviction against the six hundred–plus page appeal brief, overwhelming in its detail of the many problems with his case, put together by his private lawyers working with lawyers in the Philadelphia federal defender’s office and filed in 2011. The DA’s response denies that any of the problems with this case were problems but also argues that even if any of them were actual problems, none of them mattered enough that Walter deserves a new trial now because the Devlin/Worrell statement would have been enough to convict him anyway.
Only it wasn’t.