However much Americans may disagree about the morality of capital
punishment, no one wants to see an innocent person executed.
And yet, far too often, people end up on death row after being convicted of
horrific crimes they did not commit. The lucky ones are exonerated while they
are still alive — a macabre club that has grown to include 152 members since
1973.
The rest remain locked up for life in closet-size cells. Some die there of
natural causes; in at least two documented cases, inmates who were almost
certainly innocent were put to death.
How many more innocent people have met the same fate, or are awaiting it? That
may never be known. But over the past 42 years, someone on death row has been
exonerated, on average, every three months. According to one study, at least 4
percent of all death-row inmates in the United States have been wrongfully
convicted. That is far more than often enough to conclude that the death penalty
— besides being cruel, immoral, and ineffective at reducing crime — is so
riddled with error that no civilized nation should tolerate its use.
Innocent people get convicted for many reasons, including bad lawyering,
mistaken identifications and false confessions made under duress. But as
advances in DNA analysis have accelerated the pace of exonerations, it has also
become clear that prosecutorial misconduct is at the heart of an alarming number
of these cases.
In the past year alone, nine people who had been sentenced to death were
released — and in all but one case, prosecutors’ wrongdoing played a key role.
The latest was Anthony Ray Hinton, who on Apr. 3 walked out of the Alabama
prison where he had spent almost 30 years, half his life, on death row. Mr.
Hinton was convicted of two murders largely on faulty evidence that the bullets
had come from his gun. His prosecutor at the time said he knew Mr. Hinton was
guilty and “evil” just by looking at him. And later prosecutors continued to
insist on his guilt even when expert testimony clearly refuted the case against
him.
Why does this keep happening? In a remarkable letter to the editor published
last month in The Shreveport Times, A.M. Stroud III, a former prosecutor in
Louisiana’s Caddo Parish, offered a chillingly frank answer: “Winning became
everything.”
In 1984, Mr. Stroud convinced a jury to convict a man named Glenn Ford and
sentence him to death for murder. But Mr. Stroud now admits that because he was
so focused on winning rather than on seeking justice, he failed to identify and
turn over evidence that would have cleared Mr. Ford.
“How totally wrong was I,” Mr. Stroud wrote, apologizing to Mr. Ford — who spent
30 years in prison, 26 of those on death row — as well as his family, the judge,
the jury, and the family of the murder victim, a jeweler named Isadore Rozeman.
This is little consolation to Mr. Ford, who was released in 2014 but is now
dying from lung cancer that developed, and went untreated, while he wasted away
in prison. (Last month a Louisiana judge denied Mr. Ford any compensation beyond
the $20 debit card he received upon his release.) Still, Mr. Stroud’s powerful
message is a rare admission of prosecutorial hubris and the outrageously high
price many people pay for it.
Unfortunately, that message is unlikely to be heeded in places where it needs to
be heard most — in Caddo Parish itself, for example, which sentences more people
to death per capita than anywhere else in the country. Responding to the searing
honesty of Mr. Stroud’s letter, the parish’s current first assistant district
attorney, Dale Cox, offered up some candor of his own: “I’m a believer that the
death penalty serves society’s interest in revenge,” Mr. Cox told The Shreveport
Times. “I think we need to kill more people.”
The all-too-common mind-set to win at all costs has facilitated the executions
of people like Cameron Todd Willingham or Carlos DeLuna, whose convictions have
been convincingly debunked in recent years. And that mind-set led to the
wrongful conviction of people like Mr. Hinton, Mr. Ford and Henry Lee McCollum,
who was exonerated last year after spending three decades on North Carolina’s
death row.
If not for the extraordinary after-the-fact efforts of lawyers, investigators,
or just plain dumb luck, these men would be dead too, and neither Mr. Cox nor
anyone else would be the wiser.
TUCSON —
Prosecutors who seek a conviction on a charge of arson must first prove that a
fire was intentionally set, and then that the defendant was the one who set it.
Louis C. Taylor was facing arson charges 42 years ago, and he left court
convicted on multiple felony murder counts for sparking a hotel fire that
claimed 29 lives. He has always professed his innocence, and on Tuesday,
advances in the science of fire investigations finally set him free.
He was serving 28 life sentences for starting the deadliest fire in Arizona
history.
Mr. Taylor’s release offered him only a small measure of redemption. Under an
agreement with prosecutors in Pima County, he entered a no-contest plea during
an hourlong court hearing, which set aside his original conviction and gave him
credit for the time he had spent behind bars. The arrangement means that he did
not admit guilt, but because he did not contest the charges, he is effectively
barred from suing anyone who had a role in his conviction.
As the hearing came to a close, Judge Richard S. Fields of Pima County Superior
Court said, “Welcome back, Mr. Taylor.”
Four hours later, Mr. Taylor, wearing a light blue shirt, emerged from a state
prison here to cheers from his lawyers, who had been waiting to greet him.
“It’s two tragedies,” he said during a brief stop by the prison’s gates. “The
Pioneer Hotel fire, and me being convicted.”
Mr. Taylor, 58, who did not even know how to drive when he went to prison at the
age of 16, is facing a bleak future in an entirely unfamiliar world. His case is
among several in recent years to call into question some of the scientific
principles that once guided fire investigations — including the idea that
multiple and independent points of a fire’s origin were proof of arson, a
decisive element of Mr. Taylor’s prosecution.
Last year, a committee in Texas began a review of arson convictions after a
report revealed that a man executed in 2004 for setting a blaze that killed his
three children may not have been guilty. The committee concluded that evidence
that the fire was intentionally set had been based on faulty science.
Just last week, Texas’s highest criminal court ordered a new trial for another
man convicted of starting the fire that killed his stepsons, over similar
doubts.
“What we’re going after, more than anything else, is a pervasive prosecuting
practice, not some isolated mistake that happened in the past,” said Jeff
Blackburn, founder and chief counsel to the Innocence Project of Texas, the
legal advocacy organization that is helping forensic scientists and the Texas
fire marshal’s office carry out the review.
Debunking junk science in arson and other criminal convictions, Mr. Blackburn
said, “is really the next wave of innocence work.”
A few years ago, the National Academy of Sciences turned its attention to the
misuse of science in courtrooms, saying that pseudoscientific theories had been
used to convict people of crimes they may not have committed. By then, a small
group of fire engineers had already begun to discredit many of the assumptions
employed in fire investigations, like the practice of using the amount of heat
radiated by a fire to assess if an accelerant had been used.
Unlike DNA evidence, which can exonerate one person and sometimes incriminate
another, the evidence collected in some arson investigations does not yield
precise results. Often much of the evidence has been lost or destroyed. In the
case of the hotel fire here, all that is left are photographs, reports and
chemical analysis, all of them assembled to prove arson.
As a result, “we can’t definitely say what really caused the fire,” said John J.
Lentini, a veteran fire investigator who wrote a report on Mr. Taylor’s case.
“But what we can do is discredit the evidence” used to support the charge.
Race and questionable investigative practices may have also played a role in Mr.
Taylor’s conviction. He was a black man convicted by an all-white jury at a time
of racial strife in Tucson; four years later, a lawsuit would force the city to
confront segregation in the largest of its school districts.
After Mr. Taylor’s arrest, Cyrillis W. Holmes Jr., a fire investigator hired by
the state, offered a profile suggesting that the arsonist was a young black man.
(Mr. Holmes reaffirmed his theory during a deposition five months ago, saying
that “blacks, at that point, their background was the use of fire for beneficial
purposes.”)
During the trial, another investigator testified that an accelerant had been
used to ignite the flames, a finding not backed by laboratory tests on debris
from the hotel, which Mr. Taylor’s lawyers did not know existed.
The fire at the downtown hotel, the Pioneer International, broke out just after
midnight on Dec. 20, 1970, as an aircraft company was holding a holiday party
for 350 people. Rooms were full of guests, many of them Mexican tourists
visiting Tucson to do Christmas shopping.
By his admission, Mr. Taylor went to the Pioneer to try to get free drinks.
After the fire began, he was found knocking on doors, rousing guests, escorting
them outside and helping the injured onto stretchers.
On the upper floors, some people fashioned ropes out of bedsheets, while others
jumped out of windows in a desperate bid to escape. Firefighters’ ladders were
too short to reach them.
In court on Tuesday, Paul D’Hedouville II choked up as he described losing his
father in the fire when he was 4. Still, he told Mr. Taylor, “I harbor no
feeling of ill-will or vengeance for you.”
“Do as you choose, Mr. Taylor, but choose wisely,” Mr. D’Hedouville said. “Do
not waste your new beginning on life.”
Prosecutors, in filings and at Tuesday’s hearing, said they still believed Mr.
Taylor was guilty, but chose to accept the agreement because they would not have
been able to pursue a new trial. The evidence is too old and scarce, and there
are not enough living witnesses, they said.
Mr. Taylor was represented by the Arizona Justice Project, which helps inmates
believed to have been wrongfully accused. In court, Edward F. Novak, who led the
legal team, told Judge Fields, “Mr. Taylor does maintain his innocence, and the
no-contest plea allows him to do that.”
March 20,
2013
The New York Times
By MICHAEL POWELL
and SHARON OTTERMAN
In the
wintry darkness 23 years ago on a back street in Williamsburg, Brooklyn, a
jewelry thief fleeing a botched robbery panicked and shot a Hasidic rabbi in the
head.
Four days later, the rabbi, Chaskel Werzberger, an Auschwitz survivor, died of
his wounds. Even in the New York City of 1990, as homicides crested at 2,245,
the murder stirred grief and outrage. The “Slain Rabbi” was front-page tabloid
news. Mayor David N. Dinkins traveled to Williamsburg’s Satmar enclave to sit in
mourning and to offer a $10,000 reward.
The new Brooklyn district attorney, Charles J. Hynes, stood shoulder to shoulder
with fur-hat-wearing Satmars, watching as they rocked back and forth and wailed
as the pinewood coffin was carried out. He vowed to bring the killer to justice.
Forty detectives worked the case, soon led by the swaggering, cigar-chewing
Detective Louis Scarcella. Working closely with an influential Satmar rabbi,
Detective Scarcella arrested a drug-addicted, unemployed printer named David
Ranta. Hasidic Jews surrounded the car that carried the accused man to jail,
slapping the roof and chanting, “Death penalty!”
Mr. Ranta was convicted in May 1991 and sentenced to 37.5 years in
maximum-security prison, where he remains to this day.
He is almost certainly not guilty.
This week Mr. Hynes, after a long investigation by a unit that he created to
look into questionable convictions, plans to ask a state judge to release the
prisoner. Mr. Ranta’s lawyer, Pierre Sussman, who conducted his own inquiry,
said his client has been instructed to pack up his cell.
Mr. Ranta could walk free as early as Thursday. In the decades since a jury
convicted him of murder, nearly every piece of evidence in this case has fallen
away. A key witness told The New York Times that a detective instructed him to
select Mr. Ranta in the lineup. A convicted rapist told the district attorney
that he falsely implicated Mr. Ranta in hopes of cutting a deal for himself. A
woman has signed an affidavit saying she too lied about Mr. Ranta’s involvement.
Detective Scarcella and his partner, Stephen Chmil, according to investigators
and legal documents, broke rule after rule. They kept few written records,
coached a witness and took Mr. Ranta’s confession under what a judge described
as highly dubious circumstances. They allowed two dangerous criminals, an
investigator said, to leave jail, smoke crack cocaine and visit with prostitutes
in exchange for incriminating Mr. Ranta.
At trial, prosecutors acknowledged the detectives had misbehaved but depicted
them as likable scamps. Reached in retirement on Tuesday, Mr. Scarcella defended
his work. “I never framed anyone in my life,” he said.
No physical evidence ever connected Mr. Ranta to the murder.
He now sits in a cell at a maximum-security prison outside Buffalo. He is a
touch shy; his gray hair is fast thinning. His voice still carries the slantwise
intonations of working-class south Brooklyn. Asked how he survived, he said he
was not sure he had.
“I’d lie there in the cell at night and I think: I’m the only one in the world
who knows I’m innocent,” he said. “I came in here as a 30-something with kids, a
mother who was alive. This case killed my whole life.”
A Guilty
Verdict
It began with a fumbled robbery on Feb. 8, 1990.
Chaim Weinberger, a courier for Pan American Diamond Corporation, left his
apartment in a public housing tower in Williamsburg, pulling a 50-pound suitcase
filled with diamonds and precious gems. He had to catch a 7 a.m. flight to the
Dominican Republic, where his cargo would be cut into jewelry.
His trips were predictable and easily timed; he worried about robbery. In the
lobby, he saw a tall, blond, strikingly handsome guy, “like a lifeguard on the
beach,” Mr. Weinberger said. They stared at each other.
The blond man walked downstairs.
As Mr. Weinberger hurried beneath towering sycamores to the street, he saw the
man trailing him. He tossed the suitcase into the trunk and started his engine.
The blond man strode quickly now, covering his face with a handkerchief and
pulling out a silver gun.
Mr. Weinberger put the car into reverse and knocked the gunman into a trash
heap. He sped away, his door flapping open. He did not stop until he got to the
airport, he recalled in an interview.
Tragedy unfolded behind him. The robber, unnerved, spotted Rabbi Werzberger
warming up his blue 1985 Oldsmobile Cutlass Supreme before driving to a
synagogue. He ran over, fired a shot, pulled out the mortally wounded rabbi and
drove off in his car.
This murder tore at the heart of the then-25,000-strong Satmar community. Rabbi
Werzberger was their shamas and adviser to the grand rebbe. The Satmar, the
intensely devout, politically powerful ultra-Orthodox sect, demanded that the
police find his killer. Rabbi Leib Glantz became their point man.
Rabbi Glantz rounded up witnesses, brought them to the precinct and translated
from Yiddish as detectives conducted interviews.
Detectives worked furiously, calling in paroled felons and miscreants of many
varieties for questioning. An anonymous caller suggested that the police talk to
Joseph Astin, an experienced holdup man who was tall and blond, with rugged good
looks. But on April 2, Mr. Astin crashed his car in a police chase and died.
In late April, Detective Scarcella went to jail and visited Dmitry Drikman, a
mustachioed bull of a man with a perpetual glower. Mr. Drikman was being held
for several robberies, and had in the past been convicted of a horrific rape.
Mr. Drikman, in hopes of obtaining a shorter sentence, proved talkative. He gave
Detective Scarcella the name of his friend, Alan Bloom.
Mr. Bloom, a crack-cocaine addict, had been convicted of dozens of robberies and
faced a potential century in prison. He decided to start talking.
The detectives placed Mr. Bloom and Mr. Drikman in the same section of the jail,
so they could continue their conversation. Soon they had their story: Mr. Bloom
had had a hand in the robbery, but an acquaintance, David Ranta, a small-time
thief and drug user, was the gunman. And Mr. Drikman’s girlfriend told
detectives she had seen Mr. Ranta and Mr. Bloom planning to cover up the crime.
District Attorney Hynes shook hands with Mr. Bloom shortly before prosecutors
gave him immunity from prosecution in the murder case and greatly reduced his
sentence for other crimes.
On Aug. 13, Detectives Scarcella and Chmil found Mr. Ranta on 73rd Street in
Bensonhurst. They handcuffed him and drove to the 90th Precinct in Williamsburg.
Detective Scarcella testified at Mr. Ranta’s trial that, 26 hours later, he sat
on a bench in a crowded office and listened as Mr. Ranta, with little or no
sleep, gave a long, rambling confession.
The detective said he did not have to ask Mr. Ranta a single question. “He
flowed, and I took it all down, verbatim,” the detective testified.
Asked why he did not question the suspect, Detective Scarcella was nonchalant.
“That’s not my style,” he replied.
The case was laden with inconsistencies. Mr. Weinberger had stared the gunman in
the face and testified during the trial that Mr. Ranta was “100 percent not”
that person. In fact, four of the five witnesses in the first lineup did not
identify Mr. Ranta.
In the end, however, the jury pronounced Mr. Ranta guilty.
Before his sentencing, Mr. Ranta addressed the court. He spoke of corrupt police
officers and those who testified against him.
“Now you people do what you got to do because I feel this is all a total frame
setup,” he told the court. “When I come down on my appeal, I hope to God he
brings out the truth because a lot of people are going to be ashamed of
themselves.”
Behind the
Scenes
During the trial, Detective Scarcella proved to be an entertaining witness. A
son of Bensonhurst, a professed old-school detective, he talked about how to
make a suspect talk and where to buy the best pizza (New Haven, he advised). But
his description of his investigation angered the judge, Francis X. Egitto.
Asked why he took prisoners out of jail to eat at restaurants and visit
felonious friends, Detective Scarcella replied, “I do what I want to do with my
prisoners.”
“They’re not your prisoners,” Justice Egitto responded.
The detective testified that while interviewing Mr. Bloom and Mr. Drikman, he
never wrote a single note, as required by police procedure. Nor did he show
witnesses photographs of Mr. Drikman or Mr. Bloom, although they were murder
suspects.
The judge in particular questioned how Detective Scarcella obtained Mr. Ranta’s
confession, asking why a veteran detective did not take Mr. Ranta to an
interview room, where he could have tape-recorded it. Detective Scarcella said
he transcribed the 658-word confession by hand.
Mr. Ranta has insisted he confessed to nothing. He passed a polygraph test in
which he was asked if he shot the rabbi.
Midway through the trial, the judge spoke to the lawyers of his mistrust of
these detectives. They are playing games, he said. They have “taken it upon
themselves to be judge, jury and partial executioner.”
Yet, when he instructed the jury on what to consider during deliberation, he
mentioned none of his concerns.
Four years later, new doubts arose. In 1996, Theresa Astin testified that her
husband, Mr. Astin, who had died in that car wreck in April 1990, had murdered
the rabbi. She knew details of the killing that only someone close to it would.
Mr. Ranta’s defense lawyer, Michael Baum, filed a court motion.
Ms. Astin turned out to be a complicated witness.
In the early 1980s, she was the girlfriend of Joe Sullivan, a freelance hit-man
known as Mad Dog who killed at least 11 men.
Afterward, she married and settled down in the Gravesend neighborhood with Mr.
Astin, a mechanic with a cocaine problem and a tendency to pull armed robberies.
Snarled though her personal life was, Ms. Astin told a compelling tale: Her
husband had planned a robbery, and he came home shaking and nearly in tears on
the day the rabbi was shot. Later she found him in the bathroom, dismantling a
pistol.
“He said, ‘I hurt someone, something happened,’ ” Ms. Astin testified. “He was
crying, he was scared.”
“ ‘You’re in trouble, Joe. It’s like you killed a priest in our religion,’ ” she
warned him. Justice Egitto handled the court hearing. Again he wrote of
troubling facts — and refused to toss the verdict.
Mr. Ranta feared he had exhausted every option for appeal. “I figured I was
going to die in prison,” he recalled.
Case Falls
Apart
Every Christmas, Mr. Baum received a Christmas card from Mr. Ranta. “I never had
any doubt in my mind he was innocent,” Mr. Baum said in an interview. “I sleep
with it every night.”
Sixteen months ago, the district attorney, promoting his newly established
Conviction Integrity Unit, gave a talk to the public defenders. Does anyone, he
asked, know of cases that should be re-examined?
Mr. Baum raised his hand.
In the Bronx, Pierre Sussman, a defense lawyer hunting for evidence of police
misconduct, noticed that Detective Scarcella’s name showed up in several
troubled cases. He did a computer search, discovered Mr. Ranta’s name and
visited him in prison, where he agreed to take on his case.
Soon the last vestiges of evidence fell away. A man who was 13 at the time of
the murder, Menachem Lieberman, testified back then that he had seen Mr. Ranta
sitting in a car near the murder site.
Now, reached at his home in Montreal, Mr. Lieberman said the case had nagged at
him for years. “Before I entered the” lineup room, he told investigators, “a
police detective told me to ‘pick the guy with big nose.’ ”
He picked Mr. Ranta, he said, “because he had the biggest nose.”
And Mr. Drikman’s girlfriend, Elizabeth Cruz, also abandoned her story and
apologized. “I made up everything,” she said in an affidavit, in hopes of
gaining a deal for her boyfriend.
Mr. Drikman also stated that he fabricated his account, and that detectives and
Mr. Bloom “framed” Mr. Ranta.
The case against Mr. Ranta had come undone.
“What’s important to me is that this fellow should not be in prison one day
longer,” Mr. Hynes said in a telephone interview on Tuesday.
All that remains is for Mr. Ranta, now 58, to feel the shackles taken off his
hands and legs and stand before a State Supreme Court judge.
“I’ve lived years in a cage, stripped down, humiliated,” he said. “I’ll be able
to touch people again, to make decisions.”
He took a great gulp of air. “To be honest, what’s ahead scares me.”
Antron McCray climbed on stage in a Manhattan theater one
night last week and stepped into the kind of spotlight that, until now, has
almost always meant trouble for him.
Exiled from New York, his hometown, Mr. McCray was last seen in public two
decades ago as a skinny 16-year-old, practically drowning in a suit that he wore
to the Manhattan courthouse where he was tried on charges that he was part of a
mob that raped a jogger in Central Park and beat her nearly to death in April
1989. In the television news footage, he often held his mother’s hand as he
walked past screaming demonstrators.
With four other Harlem boys, all of whom refused plea bargains, he was convicted
of attacking the jogger and sent to prison. More than a decade later, the
convictions of all five were overturned. Another man — a serial rapist and
killer who was unknown to any of the five — had convincingly implicated himself
as the sole attacker of the jogger. DNA evidence backed his story.
This Friday, “The Central Park Five,” a documentary film on the case by Ken
Burns, Sarah Burns and David McMahon, opens in three Manhattan theaters.
Alone of the five, Mr. McCray declined to be interviewed on camera for the film,
unwilling to lift the veil. Instead, his recorded voice is heard. As soon as he
could after prison, Mr. McCray moved to the South. He works as a forklift
operator, is a father, pays his taxes.
He stepped back into the public eye last Thursday for a screening of the film at
the closing night of the Doc NYC festival.
The audience that had just seen him as a boy — in a baseball uniform, in a
police precinct station house being interrogated, in the too-big suit going to
court — and had listened to his voice throughout the film could now see him as a
man. At 39, his shoulders were broader, and his waist a bit thicker.
There was something he wanted to tell the audience about his anonymity.
“Here’s the reason why I escaped New York: I just had to get away,” Mr. McCray
said. “Start a new life.”
That logic took him to a shocking place.
“Actually, uh,” he said, “I don’t even go by Antron McCray no more.”
Saying that out loud seemed to take even Mr. McCray by surprise, a sudden
tolling of what he lost. Words thickened in his mouth. On either side of him,
two of the other men, Kevin Richardson and Yusef Salaam, squeezed his shoulders
and patted his back.
The film lays out the intricacies of the case, the sights and sounds of a
brittle era; it will be full of revelations for those who never knew about the
crime and how its life-bending effects were multiplied as the wrong people were
prosecuted while the right man continued to maim, murder and rape on the Upper
East Side.
The filmmakers follow the story far beyond the procedural failures identified by
journalists interviewed in the film, including me. Kharey Wise, by far the
scrawniest of the group, happened to be the only one old enough to spend all his
time in adult jail and prison. Raymond Santana said he cursed God and lost his
faith.
With Mr. McCray, they tunnel into Shakespearean territory.
“I thought he was like a superhero,” Mr. McCray said of his father, Bobby. “He
coached all of my Little League teams. He was a great teacher.”
By the time of the trial, though, the man Mr. McCray had idolized had abandoned
him and his mother.
“I couldn’t understand,” he said. “And I just, I hated him after that. Me and my
mother started going to court by ourself. Demonstrators, you know people just
shouting, you know, ‘Rapist!’ ‘You animal!’ ‘You don’t deserve to be alive.’ It
just felt like the whole world hated us.”
His parents reconciled, but when Mr. McCray came home from prison, he would not
accept his father’s apologies, even as his father grew ill and died.
“Seeing him laying there, it just hit me. You know, he used to be my best
friend.”
Offstage last week Mr. McCray said: “I wish I had forgiven him. Me being older,
and me being a father.”
He told the audience it had taken him a long time to decide to give the
filmmakers a chance.
“Like Ray said in the film, I lost my religion, I don’t believe in anything, I’m
by myself,” Mr. McCray said. “But tonight — I think that might change.”
He wiped his face, then smiled.
“I may be 39,” he said, “but I’m still kind of shy.”
August 2,
2012
The New York Times
By BENJAMIN WEISER
and WILLIAM K. RASHBAUM
Amid a rash
of murders of taxi drivers in New York City, the killing of Baithe Diop in 1995
still attracted attention. He was shot in his livery cab, left to die as his car
rolled down a street in the Bronx, not stopping until it struck a trash hauling
bin.
Six people were tried; five were ultimately convicted. An article in New York
magazine that focused on the investigation carried the headline, “How to Solve a
Murder.”
But now, 15 years after the criminal trials, federal authorities have concluded
that all five of those now imprisoned for the murder were innocent of the crime.
The United States attorney’s office in Manhattan, which conducted an exhaustive
review of the case, reported its findings in June to the Bronx district
attorney’s office, which had prosecuted the defendants over the course of two
trials and defended their convictions on appeal.
The new findings suggest that there was a colossal breakdown in the criminal
justice system. Robert T. Johnson, the Bronx district attorney since 1989, said
through a spokesman on Thursday that his office had been notified of the new
evidence discovered by federal prosecutors but had not yet been able “to resolve
all of the questions that have been raised by this evidence.”
Paul Casteleiro, a lawyer for one defendant, Cathy Watkins, would not discuss
the new findings but, like other lawyers in the case, said he would soon file
papers asking that his client’s conviction be vacated based on newly discovered
evidence and her actual innocence.
“It’s a mind-boggling case,” Mr. Casteleiro said. “She’s stone cold innocent.”
The murder of Mr. Diop, in January 1995, came at a time when cabdrivers were
being attacked regularly in the city, with nearly 70 drivers killed in 1993 and
1994. Mr. Diop, a 43-year-old Senegalese immigrant, was working for New Harlem
Car Service; on his last fare, he made a pickup at West 141st Street in Harlem
and headed to the Bronx, where he was robbed and killed.
All of those arrested in Mr. Diop’s murder pleaded not guilty, but jurors in two
separate trials returned convictions. In the first trial, four men were tried
for the Diop murder and a second killing, two days earlier, that was said to be
related: the execution-style shooting of Denise Raymond, a Federal Express
executive, in her apartment.
Three men — Devon Ayers, Michael Cosme and Carlos Perez — were convicted of the
Diop murder (a fourth, Israel Vasquez, was acquitted); all four men were
convicted in the Raymond killing. Jurors accepted the theory advanced by
prosecutors and the police that Mr. Diop’s murder was part of an elaborate plot
to distract the police from the intended crime: the theft of $50,000 worth of
cocaine from a passenger in Mr. Diop’s car.
In a second trial that focused only on the Diop murder, two more defendants —
Ms. Watkins and Eric Glisson — were convicted. The defendants all received long
prison sentences.
Then, in late May, federal prosecutors received a letter from Mr. Glisson at
Sing Sing prison in Ossining, N.Y. Mr. Glisson again professed his innocence,
saying he had been wrongfully imprisoned for the murder of a cabdriver in 1995
in the Soundview section of the Bronx.
He added that he had heard that the killing had been carried out by members of a
Bronx narcotics gang called Sex Money and Murder, or S.M.M. He cited the names
of several gang members.
The letter had been addressed to a prosecutor who was no longer in the office,
and was then redirected to John O’Malley, an investigator in the office’s
violent crimes unit who had once been a homicide detective in the Bronx.
Mr. O’Malley immediately recalled that Mr. Glisson’s description of the crime
matched a version of a confession that he had heard in 2003 — from two former
S.M.M. members, Jose Rodriguez and Gilbert Vega, who had agreed at the time to
cooperate with prosecutors against their former gang.
Mr. Rodriguez and Mr. Vega had independently told investigators, including Mr.
O’Malley, that they were involved in an armed robbery of a livery driver in the
Bronx in late 1994 or early 1995. They had said they believed they had killed
the driver but had left the scene quickly and were uncertain. They recalled that
they had just come from a woman’s apartment in Harlem and had gotten into a
livery cab with an African driver to return to Soundview.
At some point during the ride, Mr. Rodriguez and Mr. Vega said they decided to
rob the driver; when the driver argued and struggled, the men said they both
shot him. Each man separately recalled jumping out of the moving livery car.
Mr. O’Malley went to Bronx homicide detectives in 2003 to try to corroborate the
confession, but no records could be found of a homicide that matched. Because
there was no proof of death and no identified victim, Mr. Rodriguez and Mr. Vega
pleaded guilty to serious but lesser charges related to the taxi robbery.
Upon receiving the letter from Mr. Glisson in May, Mr. O’Malley phoned Mr. Vega
and Mr. Rodriguez, and both reaffirmed their accounts of how they shot Mr. Diop.
On June 15, Mr. O’Malley met with Mr. Glisson at Sing Sing.
He eventually prepared a detailed affidavit, which is dated Monday and has not
been made public, presenting his findings in support of a potential motion by
the defendants for a new trial.
“I believe the evidence is overwhelming that Vega and Rodriguez, acting alone,
robbed and shot Baithe Diop on Jan. 19, 1995, causing his death,” he wrote.
The defendants who seem likely to benefit most quickly from the new findings are
Ms. Watkins and Mr. Glisson, who were convicted solely in Mr. Diop’s murder. The
other imprisoned defendants — Mr. Ayers, Mr. Cosme and Mr. Perez — were also
convicted of the murder of Ms. Raymond, on which Mr. O’Malley’s investigation
does not focus.
But the findings by Mr. O’Malley, who worked closely with a senior prosecutor,
Margaret M. Garnett, would seem to raise serious questions about the convictions
in Ms. Raymond’s killing because the Bronx prosecutor’s office relied on the
same key witnesses and said the two murders were related.
“We certainly believe that a serious issue like this must be resolved as soon as
possible,” Mr. Johnson, the Bronx district attorney, said through a spokesman
about Mr. O’Malley’s findings. “Therefore, we are attempting to rapidly gather
further information from our own files and those of the United States attorney.”
The office of United States Attorney Preet Bharara declined to comment on
Thursday.
Claudia Trupp, a lawyer for Mr. Perez, said he “has been consistent throughout
our representation that he’s innocent of these crimes.”
Mr. Vasquez, the defendant acquitted of the Diop killing but convicted in the
Raymond murder, had his conviction overturned by a state appeals court that said
the theory of the case against him was “based on speculation unsupported by any
credible evidence.”
Earl S. Ward and Julia Kuan, lawyers who are representing him in a civil-rights
lawsuit, said in a joint statement, “It was in pursuing Israel Vasquez’s civil
rights claims that it became obvious to us that everyone who was convicted in
both of these crimes was innocent.”
As for Mr. Glisson, the inmate whose letter to federal prosecutors prompted the
new review, he was “overjoyed” when Mr. O’Malley visited him at Sing Sing and
told him of his findings, his lawyer Peter A. Cross said.
Mr. Cross said Mr. Glisson, describing the meeting, said Mr. O’Malley had
“outright apologized,” and said, “We know you’re innocent and we’re going to do
everything we can to get you out of jail.”
March 2,
2012
The New York Times
By RAYMOND BONNER
EDWARD LEE
ELMORE turned 53 in January. For more than half his life, the soft-spoken
African-American who doesn’t understand the concept of north, south, east and
west, or of summer, fall, winter and spring, was in a South Carolina prison,
most of it on death row.
On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free
man, as part of an agreement with the state whereby he denied any involvement in
the crime but pleaded guilty in exchange for his freedom. This was his 11,000th
day in jail.
Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly
white widow in Greenwood. His trial lasted only eight days, including two spent
picking the jury. The state concealed evidence that strongly pointed to Mr.
Elmore’s innocence and introduced damning evidence that appears to have been
planted by the police. For three decades lawyers for Mr. Elmore, who were
convinced of his innocence, sought to get him a fair trial.
Headlines and news stories about men being released from death row based on DNA
testing suggest that this happens often. But it doesn’t. Once a person has been
convicted, even on unimaginably shaky grounds, an almost inexorable process —
one that usually ends in execution — is set in motion. On appeal, gone is the
presumption of innocence; the presumption is that the defendant had a fair
trial. Not even overwhelming evidence that the defendant is innocent is
necessarily enough to get a new trial. “Due process does not require that every
conceivable step be taken, at whatever cost, to eliminate the possibility of
convicting an innocent person,” Justice Byron R. White wrote for the majority in
a 1977 case, Patterson v. New York.
In other words, innocence is not enough.
I came to the Elmore case indirectly during the 2000 presidential campaign. On
“Meet the Press,” George W. Bush, who as governor of Texas had presided over
more executions than anyone in history at the time (Rick Perry has surpassed
him), told Tim Russert that he was confident that every person who had been
executed or placed on death row in Texas under his watch was guilty and had had
a fair trial. This led to a reporting assignment in which a New York Times
colleague, Sara Rimer, and I wrote about capital punishment, starting in Texas
and then ranging from coast to coast.
It was an eye-opening experience. But no case grabbed me like Mr. Elmore’s. The
case stands out because it raises nearly all the issues that shape debate about
capital punishment: race, mental retardation, a jailhouse informant, DNA
testing, bad defense lawyers, prosecutorial misconduct and a strong claim of
innocence.
Few men on death row are without any connection to the crime for which they are
condemned to die. Their conviction might be reversed after an appellate court
finds they were denied due process or didn’t receive a fair trial. Other death
row inmates may not be guilty of murder, because they didn’t pull the trigger
though they were present during the crime. But in the case of Mr. Elmore, I am
convinced beyond a scintilla of a doubt that he had nothing to do with the
Greenwood woman’s death. His conviction resulted primarily from a rush to
judgment — and flagrant prosecutorial misconduct.
Mr. Elmore, who grew up in abject poverty as the 8th of 11 children born to a
tenant farmer’s daughter, was arrested 36 hours after the body of 76-year-old
Dorothy Ely Edwards was found in her bedroom closet. Mr. Elmore had occasionally
washed windows and cleaned gutters at the woman’s house, the last time two weeks
before the murder. Less than 90 days later, his trial began.
During his opening statement, the prosecutor, William Townes Jones III, a
courtroom legend, said that 53 hairs had been gathered from the victim’s bed,
where the sexual assault supposedly took place, and that most were the
defendant’s pubic hairs. It was the only physical evidence that put Mr. Elmore
inside the house at the time of the crime. “That’s what convicted him,” said a
juror.
But contradictions appeared at the outset. When Mr. Jones called an agent from
the South Carolina Law Enforcement Division, or SLED, as a witness, he handed
him a plastic bag marked State Exhibit 58 and asked him if it contained “53
hairs gathered from the bed of the deceased.”
“The total count on the hairs is 49,” answered the agent, Earl Wells, and he
added that there were only 42 in the bag, because he had taken seven out for
examination.
Mr. Elmore’s lawyers made nothing of this discrepancy during their
cross-examination of Mr. Wells, or in their closing argument.
The state’s own inability to agree on how many hairs were found wasn’t the only
suggestion of foul play. State Exhibit 58, the baggie with the hairs, wasn’t
sealed. Which means that the hairs could have been put in by anyone at any time,
and could have included those yanked from Mr. Elmore’s groin at the police
station after he was arrested.
Further, the bed barely featured in the police investigation. Investigators from
SLED took nearly a hundred pictures at the house. They took pictures in the
guest bedroom, where nothing had happened — even the small figurines on the
bureau had not been knocked over — and of the bed in the guest bedroom, which
looked as if it was ready for the next guest. But the investigators took no
photos of the bed where they claimed to have found hairs.
Nor did the investigators take the sheets from the bed. Why not? “There were no
obvious blood or other stains present,” one of the agents, Ira Parnell,
explained during Mr. Elmore’s post-conviction relief hearing in the case. The
hearing, which is much like a civil trial before a judge, is an opportunity for
the defendant’s lawyers to present new evidence and to examine and cross-examine
witnesses. He was categorical: “We did not see any stains of any kind.”
The state argued that while the police might have made some mistakes, none
served to deny Mr. Elmore any of his constitutional rights. The hearing judge
adopted the state’s arguments verbatim and declined to grant Mr. Elmore a new
trial.
Perhaps Mr. Elmore’s only good fortune was that on appeal he had on his side two
determined appellate lawyers, Diana Holt, who had first begun working on the
case as a law school intern, and J. Christopher Jensen, an accomplished New York
litigator who was representing Mr. Elmore pro bono. Two years later, they turned
up new evidence that the state had sought to hide and that pointed to Mr.
Elmore’s innocence.
At Mr. Elmore’s trial, the prosecutor, Mr. Jones, said he had authorized the
arrest after being told that during the autopsy, the doctor had found a
“Negroid” hair on the victim’s abdomen. The doctor sent the hairs and fibers
found on the body to SLED, where the agent, Mr. Wells, examined them under a
microscope, then put the slides in a padded envelope and labeled it “Item T.”
In the 1963 landmark case Brady v. Maryland, the Supreme Court ruled that the
state must turn over all potentially exonerating evidence to the defendant. But
Mr. Jones did not give Item T to Mr. Elmore’s trial lawyers. More shocking
still, Item T disappeared.
When Mr. Elmore’s lawyers began searching for it, state officials repeatedly
said they couldn’t find it. The lawyers persisted and, 16 years after the trial,
found Item T — in Earl Wells’s filing cabinet, where the state attorney
general’s office conceded it had been all along. (Mr. Wells said he found it
while moving offices.)
The retired F.B.I. agent retained to examine the hair said it was not “Negroid,”
but Caucasian. Mr. Elmore’s lawyers had the hair DNA-tested. It wasn’t Mrs.
Edwards’s, which suggested it was from an unknown man, likely the killer. Armed
with this development, Mr. Elmore’s lawyers went back to court. There was a
hearing, a few days before Christmas 2000, in the same courtroom where Mr.
Elmore had been convicted 18 years earlier. It was widely expected that he would
get a new trial.
The judge ruled against him. “One hair is not enough,” he said. Spectators
gasped. But the South Carolina Supreme Court agreed.
Mr. Elmore’s lawyers did not give up. Remarkably, in November, the Fourth
Circuit Court of Appeals — historically one of the most conservative — ordered a
new trial. In a 163-page opinion, the majority was searing in its criticism of
the SLED agents and the police.
There was “persuasive evidence that the agents were outright dishonest,” and
there was “further evidence of police ineptitude and deceit,” Judge Robert Bruce
King wrote.
Even though he walked out of court on Friday, none can call it justice.
A man has served 30 years for a crime he did not commit, many of those under the
threat of imminent execution. Surely, there are grounds for a Justice Department
investigation into whether his civil rights were violated.
December
19, 2011
The New York Times
By JOHN SCHWARTZ
and BRANDI GRISSOM
AUSTIN,
Tex. — A Texas man wrongfully convicted in 1987 of murdering his wife is
scheduled to be officially exonerated on Monday.
That is no longer so unusual in Texas, where 45 inmates have been exonerated in
the last decade based on DNA evidence. What is unprecedented is the move planned
by lawyers for the man, Michael Morton: they are expected to file a request for
a special hearing to determine whether the prosecutor broke state laws or ethics
rules by withholding evidence that could have led to Mr. Morton’s acquittal 25
years ago.
“I haven’t seen anything like this, ever,” said Bennet L. Gershman, an expert on
prosecutorial misconduct at Pace University in New York. “It’s an extraordinary
legal event.”
The prosecutor, Ken Anderson, a noted expert on Texas criminal law, is now a
state district judge. Through a lawyer, he vigorously denied any wrongdoing in
Mr. Morton’s case.
Mr. Morton, who was a manager at an Austin supermarket and had no criminal
history, was charged with the beating death of his wife, Christine, in 1986. He
had contended that the killer must have entered their home after he left for
work early in the morning. But Mr. Anderson convinced the jury that Mr. Morton,
in a rage over his wife’s romantic rebuff the previous night — on Mr. Morton’s
32nd birthday — savagely beat her to death.
Mr. Morton was sentenced to life in prison. Beginning in 2005, he pleaded with
the court to test DNA on a blue bandanna found near his home shortly after the
murder, along with other evidence.
For six years, the Williamson County district attorney, John Bradley, fought the
request for DNA testing, based on advice from Judge Anderson, his predecessor
and friend. In 2010, however, a Texas court ordered the DNA testing, and the
results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA
of another man: Mark A. Norwood, a felon with a long criminal history who lived
about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton
had spent nearly 25 years in prison.
Mr. Norwood has been arrested and charged in Mrs. Morton’s death and is a
suspect in a similar murder from 1988.
The filing by Mr. Morton’s lawyer, John Raley, and attorneys from the Innocence
Project, a group based in New York that represents prisoners seeking exoneration
through DNA testing, is asking for what is known as a “court of inquiry.” The
lawyers did not share the document with reporters but answered questions about
it.
They will ask the court to determine that there is probable cause to believe
that Mr. Anderson withheld reports that the judge in the 1987 trial had ordered
him to turn over. The judge had demanded the documents to determine whether they
might help Mr. Morton’s case. Finding nothing exculpatory in the small number of
documents he was provided by the prosecutor, the judge ordered the record
sealed.
In August, however, a different judge ordered the record unsealed, and Mr.
Morton’s lawyers discovered that Mr. Anderson had provided only a fraction of
the available evidence. Missing from the file was the transcript of a telephone
conversation between a sheriff’s deputy and Mr. Morton’s mother-in-law in which
she reported that her 3-year-old grandson had seen a “monster” — who was not his
father — attack and kill his mother.
Also missing were police reports from Mr. Morton’s neighbors, who said they had
seen a man in a green van repeatedly park near their home and walk into the
woods behind their house. And there were even reports, also never turned over,
that Mrs. Morton’s credit card had been used and a check with her forged
signature cashed after her death.
In October, Judge Sid Harle of Bexar County District Court freed Mr. Morton
based on the DNA evidence and authorized an unusual process allowing his defense
lawyers to investigate the prosecutor’s conduct in the original trial. The
lawyers questioned the lead sheriff’s investigator, an assistant district
attorney who worked with Mr. Anderson and the former prosecutor himself.
In their accounts, the witnesses said Mr. Anderson had firmly controlled every
detail of the prosecution. In his own two-day deposition, however, Judge
Anderson said he recalled few details of the case and asserted that he had done
nothing wrong. He said that he had interpreted the judge’s order to disclose the
reports as a narrow demand for the initial documents from the investigation and
that he felt “sick” over Mr. Morton’s wrongful imprisonment.
If the court of inquiry ends with a finding that Mr. Anderson committed serious
acts of misconduct by concealing material evidence, it could lead to
disciplinary action by the state bar association and possibly even a criminal
prosecution.
Experts, however, are skeptical that Judge Anderson could face serious
punishment or disbarment, even if the court were to decide that he had committed
malfeasance. Susan R. Klein, a professor at the University of Texas Law School
who specializes in criminal issues and prosecutorial ethics, said that such
actions would be “incredibly unusual,” particularly after the Supreme Court’s
decision this year dismissing a $14 million civil jury award against a Louisiana
prosecutor, Harry Connick Sr., for his failure to turn over evidence that
ultimately led to an exoneration.
While withholding material evidence intentionally can get a lawyer disbarred,
Ms. Klein said, “It’s extremely unlikely.” In the court filing, Mr. Morton’s
lawyers argue that the amount of time that has passed since the trial may not be
a bar to criminal prosecution if Mr. Anderson is found to have violated a court
order; they argue that there may be no statute of limitations for contempt of
court under state law.
Mark Dietz, a lawyer for Judge Anderson, said that he had asked for, but had not
received, the report that Mr. Morton’s lawyers plan to file on Monday. He said
he worried that the report would inaccurately reflect what happened in 1987. Mr.
Dietz questioned whether Judge Harle had jurisdiction to order a court of
inquiry, and in a letter to Barry C. Scheck, the co-founder of the Innocence
Project, wrote that while his client welcomed “positive discussion about
criminal justice reforms,” “false and defamatory statements regarding Mr.
Anderson’s conduct as a prosecutor in the Morton case have no proper place in
that discussion.”
In an interview, Mr. Scheck said he hoped the court of inquiry proceeding would
result in changes in law and policy that could promote greater fairness in
criminal cases. Previous high-profile exonerations, he said, have led to new
laws that improved access to DNA testing after conviction and provided generous
compensation to those who were wrongfully convicted.
“This is one of those catalytic, iconic cases that leads to reform,” he said.
October 10, 2011
The New York Times
By PETER APPLEBOME
PHILADELPHIA — The television crew had him up at dawn doing the Rocky
fandango, dashing up the 72 stone steps of the Philadelphia Museum of Art and
dancing around in triumph like another over-the-hill, underdog pugilist who had
made it big.
Cliché or not, it is hard not to imagine the familiar trumpet score along with
the thwock, thwock, thwock of fists on punching bags as Dewey Bozella trains for
one of the least likely boxing matches in history.
After 26 years in New York State prisons, and two years after he was exonerated
of murder, Mr. Bozella will make his professional boxing debut on Saturday in
Los Angeles, at age 52, on the undercard of the light-heavyweight champion
Bernard Hopkins. (A mere 46 himself, Mr. Hopkins became the oldest fighter to
win a major world championship this May.)
Mr. Bozella’s other fight, in which he is seeking compensation for the half of
his life he spent behind bars, may be even more daunting than chasing victory in
the ring. But for now, Mr. Bozella is focused on what he says will be his one
and only professional bout.
“I want to go out there and give 100 percent and then move on with my life,” he
said. “This is not a career move. It’s a personal move and a way to let people
know to never give up on their dreams. My favorite quote is ‘Don’t let fear
determine who you are and never let where you come from determine where you’re
going.’ That’s what this is about.”
The product of a violent broken family and a hard life on the streets, Mr.
Bozella was a troubled 18-year-old in 1977 when Emma Crapser, 92, was murdered
in her Poughkeepsie, N.Y., home after returning from playing bingo. Six years
later, based almost entirely on the testimony of two criminals who repeatedly
changed their stories, he was convicted of the murder.
There was no physical evidence implicating Mr. Bozella. Instead, there was the
fingerprint of another man, Donald Wise, who was later convicted of committing a
nearly identical murder of another elderly woman in the same neighborhood. Mr.
Bozella was retried in 1990, and was offered a deal that would let him go free
in exchange for an admission that he committed the crime. He refused. A jury
convicted him again.
At Sing Sing, he earned a bachelor’s degree from Mercy College and a master’s
from the New York Theological Seminary. And he boxed in the prison’s “Death
House,” once the scene of electrocutions, then a boxing ring, where he became
Sing Sing’s light-heavyweight champion. At parole hearings, he repeatedly
refused to express remorse for the crime he did not commit. He would get out one
way, he said, either in a box or as an exonerated man. The box seemed more
likely.
In the end, he was saved by a miracle. The Innocence Project, a legal clinic
dedicated to overturning wrongful convictions, believing in his case but unable
to pursue it absent DNA evidence, referred it to the law firm WilmerHale.
Lawyers there eventually found the Poughkeepsie police lieutenant who had
investigated the case. He had retired, and Mr. Bozella’s was the only file he
had saved. It included numerous pieces of evidence favorable to Mr. Bozella that
had not been turned over to his lawyers. On Oct. 28, 2009, he walked out of the
courthouse in Poughkeepsie finally a free man.
He struggled to find work, eventually counseling former convicts while teaching
boxing at a Newburgh, N.Y., gym until ESPN became interested in his story. In
July, at its annual ESPY Awards, he was given its Arthur Ashe Courage Award,
whose past recipients have included Muhammad Ali, Pat Tillman and Nelson
Mandela. The offer to box professionally came as a result of that appearance.
But when he took the rigorous California State Athletic Commission test on Aug.
24 to get licensed to box in the state, he failed. After Labor Day, he began
working out in Philadelphia with the trainers for Mr. Hopkins. They were
skeptical.
“I’m thinking, ‘I’m going to kill this old guy,’ ” said Danny Davis, one of Mr.
Hopkins’s trainers. “There’s no way this guy can make it through my training.”
But Mr. Bozella got tougher, leaner and more nimble, dropping 10 pounds in
little more than a week. He sparred with, and took serious lumps from, a
world-class fighter: Lajuan Simon, a middleweight title contender. Mr. Bozella
took the test again on Sept. 29. This time he passed.
Officials said Mr. Bozella was believed to be the oldest fighter ever licensed
to box in California. Fighters that age are extremely rare but hardly unknown.
“The Ultimate Book of Boxing Lists,” by Bert Randolph Sugar and Teddy Atlas, has
a section on “Boxing’s Greatest Methuselahs” that includes Mr. Hopkins; Jem
Mace, the legendary 19th-century English boxer who fought at 59; and Saoul
Mamby, a former junior welterweight titleholder who fought in 2008 at the age of
60, making him the oldest fighter ever to appear in an officially sanctioned
bout.
Mr. Bozella, a cruiserweight — between light-heavyweights and heavyweights —
will not be fighting for a championship; he is taking on Larry Hopkins, 30, of
Houston, who is 0-3 as a professional (and is not related to Bernard Hopkins).
His purse in the pay-per-view bout will be in the very low four figures.
But even if hype and marketing are as much a part of boxing as quick feet and
sharp jabs, Mr. Bozella said the bout was anything but a stunt.
“You’ve seen the workout I went through, the pain, blood and bruises I’m
getting,” he said after four rounds sparring with Mr. Simon last week. “No one’s
giving me nothing for free. I can go out there and get knocked out, or I can
knock the other guy out. It’s that simple.”
Mr. Bozella hopes to open his own gym as a way to mentor youngsters, but beyond
its Hollywood touches, his feel-good story turns cloudier. The day after he
passed the boxing test, a federal judge threw out his lawsuit against Dutchess
County and the City of Poughkeepsie over the evidence that was not turned over
to his lawyers.
The decision was primarily based on a controversial Supreme Court ruling in the
case of Connick v. Thompson. By a 5-to-4 margin, the court, in a decision
written by Justice Clarence Thomas in March, threw out a $14 million jury award
to a former death row inmate freed after prosecutorial misconduct came to light.
The decision stated that only a pattern of misconduct in properly turning over
evidence could warrant financial compensation, no matter how egregious the
misconduct against a single defendant.
“I’m not going to disrespect the courts,” Mr. Bozella said. “I’d just like the
justice system to be fair. Same thing with boxing. If the judges are fair, then
the real winner wins. Just be fair. That’s it.”
Troy Davis is scheduled to be executed on Wednesday for the
1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole
board’s refusal to grant him clemency is appalling in light of developments
after his conviction: reports about police misconduct, the recantation of
testimony by a string of eyewitnesses and reports from other witnesses that
another person had confessed to the crime.
This case has attracted worldwide attention, but it is, in essence, no different
from other capital cases. Across the country, the legal process for the death
penalty has shown itself to be discriminatory, unjust and incapable of being
fixed. Just last week, the Supreme Court granted a stay of execution for Duane
Buck, an African-American, hours before he was to die in Texas because a
psychologist testified during his sentencing that Mr. Buck’s race increased the
chances of future dangerousness. Case after case adds to the many reasons why
the death penalty must be abolished.
The grievous errors in the Davis case were numerous, and many arose out of
eyewitness identification. The Savannah police contaminated the memories of four
witnesses by re-enacting the crime with them present so that their individual
perceptions were turned into a group one. The police showed some of the
witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was
set apart by a different background. The lineup was also administered by a
police officer involved in the investigation, increasing the potential for
influencing the witnesses.
In the decades since the Davis trial, science-based research has shown how
unreliable and easily manipulated witness identification can be. Studies of the
hundreds of felony cases overturned because of DNA evidence have found that
misidentifications accounted for between 75 percent and 85 percent of the
wrongful convictions. The Davis case offers egregious examples of this kind of
error.
Under proper practices, no one should know who the suspect is, including the
officer administering a lineup. Each witness should view the lineup separately,
and the witnesses should not confer about the crime. A new study has found that
even presenting photos sequentially (one by one) to witnesses reduced
misidentifications — from 18 percent to 12 percent of the time — compared with
lineups where photos were presented all at once, as in this case.
Seven of nine witnesses against Mr. Davis recanted after trial. Six said the
police threatened them if they did not identify Mr. Davis. The man who first
told the police that Mr. Davis was the shooter later confessed to the crime.
There are other reasons to doubt Mr. Davis’s guilt: There was no physical
evidence linking him to the crime introduced at trial, and new ballistics
evidence broke the link between him and a previous shooting that provided the
motive for his conviction.
More than 630,000 letters pleading for a stay of execution were delivered to the
Georgia board last week. Those asking for clemency included President Jimmy
Carter, 51 members of Congress and death penalty supporters, such as William
Sessions, a former F.B.I. director. The board’s failure to commute Mr. Davis’s
death sentence to life without parole was a tragic miscarriage of justice.
I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve
been free since 2003, exonerated after evidence covered up by prosecutors
surfaced just weeks before my execution date. Those prosecutors were never
punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won
against them and the district attorney who oversaw my case, ruling that they
were not liable for the failure to turn over that evidence — which included
proof that blood at the robbery scene wasn’t mine.
Because of that, prosecutors are free to do the same thing to someone else
today.
I was arrested in January 1985 in New Orleans. I remember the police coming to
my grandmother’s house — we all knew it was the cops because of how hard they
banged on the door before kicking it in. My grandmother and my mom were there,
along with my little brother and sister, my two sons — John Jr., 4, and Dedric,
6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess
they thought they were coming for a murderer. All the children were scared and
crying. I was 22.
They took me to the homicide division, and played a cassette tape on which a man
I knew named Kevin Freeman accused me of shooting a man. He had also been
arrested as a suspect in the murder. A few weeks earlier he had sold me a ring
and a gun; it turned out that the ring belonged to the victim and the gun was
the murder weapon.
My picture was on the news, and a man called in to report that I looked like
someone who had recently tried to rob his children. Suddenly I was accused of
that crime, too. I was tried for the robbery first. My lawyers never knew there
was blood evidence at the scene, and I was convicted based on the victims’
identification.
After that, my lawyers thought it was best if I didn’t testify at the murder
trial. So I never defended myself, or got to explain that I got the ring and the
gun from Kevin Freeman. And now that I officially had a history of violent crime
because of the robbery conviction, the prosecutors used it to get the death
penalty.
I remember the judge telling the courtroom the number of volts of electricity
they would put into my body. If the first attempt didn’t kill me, he said,
they’d put more volts in.
On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary —
the infamous Angola prison. I was put in a dead man’s cell. His things were
still there; he had been executed only a few days before. That past summer they
had executed eight men at Angola. I received my first execution date right
before I arrived. I would end up knowing 12 men who were executed there.
Over the years, I was given six execution dates, but all of them were delayed
until finally my appeals were exhausted. The seventh — and last — date was set
for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in
from Philadelphia to give me the news. They didn’t want me to hear it from the
prison officials. They said it would take a miracle to avoid this execution. I
told them it was fine — I was innocent, but it was time to give up.
But then I remembered something about May 20. I had just finished reading a
letter from my younger son about how he wanted to go on his senior class trip.
I’d been thinking about how I could find a way to pay for it by selling my
typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr.
is graduating from high school.” I begged them to get it delayed; I knew it
would hurt him.
To make things worse, the next day, when John Jr. was at school, his teacher
read the whole class an article from the newspaper about my execution. She
didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson
about making bad choices. So he learned that his father was going to be killed
from his teacher, reading the newspaper aloud. I panicked. I needed to talk to
him, reassure him.
Amazingly, I got a miracle. The same day that my lawyers visited, an
investigator they had hired to look through the evidence one last time found, on
some forgotten microfiche, a report sent to the prosecutors on the blood type of
the perpetrator of the armed robbery. It didn’t match mine; the report, hidden
for 15 years, had never been turned over to my lawyers. The investigator later
found the names of witnesses and police reports from the murder case that hadn’t
been turned over either.
As a result, the armed robbery conviction was thrown out in 1999, and I was
taken off death row. Then, in 2002, my murder conviction was thrown out. At a
retrial the following year, the jury took only 35 minutes to acquit me.
The prosecutors involved in my two cases, from the office of the Orleans Parish
district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of
evidence. And most of them are still able to practice law today.
Why weren’t they punished for what they did? When the hidden evidence first
surfaced, Mr. Connick announced that his office would hold a grand jury
investigation. But once it became clear how many people had been involved, he
called it off.
In 2005, I sued the prosecutors and the district attorney’s office for what they
did to me. The jurors heard testimony from the special prosecutor who had been
assigned by Mr. Connick’s office to the canceled investigation, who told them,
“We should have indicted these guys, but they didn’t and it was wrong.” The jury
awarded me $14 million in damages — $1 million for every year on death row —
which would have been paid by the district attorney’s office. That jury verdict
is what the Supreme Court has just overturned.
I don’t care about the money. I just want to know why the prosecutors who hid
evidence, sent me to prison for something I didn’t do and nearly had me killed
are not in jail themselves. There were no ethics charges against them, no
criminal charges, no one was fired and now, according to the Supreme Court, no
one can be sued.
Worst of all, I wasn’t the only person they played dirty with. Of the six men
one of my prosecutors got sentenced to death, five eventually had their
convictions reversed because of prosecutorial misconduct. Because we were
sentenced to death, the courts had to appoint us lawyers to fight our appeals. I
was lucky, and got lawyers who went to extraordinary lengths. But there are more
than 4,000 people serving life without parole in Louisiana, almost none of whom
have lawyers after their convictions are final. Someone needs to look at those
cases to see how many others might be innocent.
If a private investigator hired by a generous law firm hadn’t found the blood
evidence, I’d be dead today. No doubt about it.
A crime was definitely committed in this case, but not by me.
John Thompson
is the director of Resurrection After Exoneration,
September 16, 2010
The New York Times
By CAMPBELL ROBERTSON
HATTIESBURG, Miss. — A little after 10 o’clock on Thursday morning, it was
all up to Phillip Bivens. Just like that. The judge adjourned the hearing and
Mr. Bivens, standing in a red jumpsuit in the corner of the courtroom, could all
of a sudden do anything he wanted. After 30 years in prison, he was not sure
what that was.
“Take it easy, I guess,” he said. “Try to ease my mind.”
Mr. Bivens, 59, and Bobby Ray Dixon, 53, two men who were serving life
sentences, were exonerated by a judge on Thursday morning, their guilty pleas to
the charge of murder erased. The judge said it was likely that another man,
Larry Ruffin, would soon be cleared for the same murder.
There was no special hurry in his case. Mr. Ruffin died in prison eight years
ago.
The expected ruling would be one of only a handful of posthumous exonerations
nationwide, and taken with Thursday’s events, a rare triple exoneration.
Nonetheless, said Emily Maw, the director of the Innocence Project of New
Orleans, the law center that pressed for the men’s release, the case has been
nothing but a series of tragedies.
On a warm night in early May 1979, a man broke into the home of Eva Gail
Patterson, raped her and cut her throat in front of her 4-year-old son. Ms.
Patterson, whose 2-year-old was sleeping in the next room and whose husband was
working offshore on an oil platform, stumbled to her neighbor’s carport, where
she collapsed and died. The 4-year-old, Luke, told the police that a single man,
“a bad boy,” had killed his mother.
Larry Ruffin, 19 at the time, was picked up a few days later. The night of the
murder he had been on leave from a halfway house, where he was sent after
stealing some beer from a store. Over the next few weeks, he gave several
statements, contradictory on many points but all conforming to the same basic
storyline: He had raped and killed Ms. Patterson, and he had acted alone.
Mr. Ruffin soon recanted, however, saying that he had been physically coerced by
law enforcement officials into confessing, and maintained his innocence. Over a
year later, just before Mr. Ruffin’s trial was set to begin, the police
interviewed Mr. Dixon, who had been with Mr. Ruffin at the halfway house at the
same time. Mr. Dixon told them that Mr. Ruffin had killed Ms. Patterson, but
said that he had been with him that night. Mr. Dixon, who pleaded guilty to
murder, apparently said Mr. Bivens was with them as well, though no records
exist of that first interview.
Mr. Bivens, who had returned to his home in California several months earlier,
was arrested by police officers who showed up at his door one night.
“I’d never been on a airplane before,” he said on a car ride out of Mississippi
after the hearing. “I thought they were going to kill me. I thought they were
going to get me up there and push me out.”
Back in Hattiesburg, he was told he could be facing the death penalty unless he
pleaded guilty. Law enforcement officials showed him pictures of the crime scene
and asked what he remembered, he said. He had never met Mr. Dixon before, he
said, but, fearing for his life, he backed up Mr. Dixon’s account.
“All of these things, it’s hard to push them out of my mind,” he said on the car
ride, staring out the window. “I don’t like to think about it. I feel like I
should have been stronger than that.”
The trial, in the winter of 1980, was based almost exclusively on the three
statements.
On the stand, Mr. Dixon, who described himself as a “hard learner” who could
barely read, began to contradict his own testimony. Finally, he said that he had
not been with the other two that night and that he did not even know what Ms.
Patterson looked like. He said that he had been kicked in the head by a horse as
a child and ever since had suffered seizures.
“I don’t have the right mind,” he said on the witness stand. “My mind comes and
goes, and I don’t like to see nobody took away for nothing they ain’t done.”
Mr. Ruffin was convicted, though a hung jury prevented a death sentence. He was
sentenced to life in prison and died of a heart attack in 2002.
Mr. Dixon, whose seizures were so frequent in prison that guards gave him a
baseball batting helmet, developed lung cancer last year, which has since spread
to his brain.
A couple of years earlier, lawyers for the Innocence Project had received an
application for help from Mr. Dixon through a corrections officer. The lawyers,
pointing to studies that show the frequency of false confessions, requested a
DNA test of the evidence from the rape kit.
In July, the results came back. They implicated a man named Andrew Harris, who
had lived just up the road from Ms. Patterson. In 1982, he was convicted of a
rape outside Hattiesburg and is now serving a life sentence.
Law enforcement officials are now investigating his connection to the Patterson
case.
Mr. Dixon was granted medical parole after the test results came in and has been
out of prison since. Only Mr. Bivens remained.
The courtroom on Thursday was full of people who last came together 30 years
ago. Mr. Ruffin’s family members wore “Free at Last” T-shirts, maintaining that
freedom is a state that can be still achieved by the dead.
Mr. Dixon was there, smiling and leaning on a cane carved by his brother. The
Patterson family, including Luke, now in his 30s, was sitting the front row. The
district attorney, the same man who had been in the post in 1979, represented
the state.
After the hearing, Mr. Dixon was taken by his brother a few dozen miles out of
town to a sun-dappled clearing among pine trees, the site of Mr. Ruffin’s grave.
The Ruffin family prayed, sang hymns and released balloons, and Mr. Dixon broke
into sobs.
Earlier, Mr. Bivens stood across the street from the courthouse, in brand-new
clothes still bearing the creases of the display shelf. He carried his
belongings in a pillowcase: two Bibles, a pair of flip-flops, some shampoo, some
socks. The lawyers took him to lunch and then drove him to New Orleans.
He was planning to stay in housing there that was set up especially for
exonerated prisoners. Maybe, he said, he could find a job gardening. And he was
thinking about looking up his old girlfriend, the one he was about to marry
before the police arrived at his door that night.
It is important to have people around you, he said. They keep you from thinking
about things too much. And they serve as an alibi, just in case.
September 1, 2009
The New York Times
By BOB HERBERT
There is a long and remarkable article in the current New Yorker about a man
who was executed in Texas in 2004 for deliberately setting a fire that killed
his three small children. Rigorous scientific analysis has since shown that
there was no evidence that the fire in a one-story, wood frame house in
Corsicana was the result of arson, as the authorities had alleged.
In other words, it was an accident. No crime had occurred.
Cameron Todd Willingham, who refused to accept a guilty plea that would have
spared his life, and who insisted until his last painful breath that he was
innocent, had in fact been telling the truth all along.
It was inevitable that some case in which a clearly innocent person had been put
to death would come to light. It was far from inevitable that this case would be
the one. “I was extremely skeptical in the beginning,” said the New Yorker
reporter, David Grann, who began investigating the case last December.
The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by
the cries of his 2-year-old daughter, Amber. Also in the house were his year-old
twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife,
Stacy, had gone out to pick up a Christmas present for the children from the
Salvation Army.
Willingham said he tried to rescue the kids but was driven back by smoke and
flames. At one point his hair caught fire. As the heat intensified, the windows
of the children’s room exploded and flames leapt out. Willingham, who was 23 at
the time, had to be restrained and eventually handcuffed as he tried again to
get into the room.
There was no reason to believe at first that the fire was anything other than a
horrible accident. But fire investigators, moving slowly through the ruined
house, began seeing things (not unlike someone viewing a Rorschach pattern) that
they interpreted as evidence of arson.
They noticed deep charring at the base of some of the walls and patterns of soot
that made them suspicious. They noticed what they felt were ominous fracture
patterns in pieces of broken window glass. They had no motive, but they were
convinced the fire had been set. And if it had been set, who else but Willingham
would have set it?
With no real motive in sight, the local district attorney, Pat Batchelor, was
quoted as saying, “The children were interfering with his beer drinking and dart
throwing.”
Willingham was arrested and charged with capital murder.
When official suspicion fell on Willingham, eyewitness testimony began to
change. Whereas initially he was described by neighbors as screaming and
hysterical — “My babies are burning up!” — and desperate to have the children
saved, he now was described as behaving oddly, and not having made enough of an
effort to get to the girls.
And you could almost have guaranteed that a jailhouse snitch would emerge. They
almost always do. This time his name was Johnny Webb, a jumpy individual with a
lengthy arrest record who would later admit to being “mentally impaired” and on
medication, and who had started taking illegal drugs at the age of 9.
The jury took barely an hour to return a guilty verdict, and Willingham was
sentenced to death.
He remained on death row for 12 years, but it was only in the weeks leading up
to his execution that convincing scientific evidence of his innocence began to
emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at
Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in
the Willingham case and began systematically knocking down every indication of
arson.
The authorities were unmoved. Willingham was executed by lethal injection on
Feb. 17, 2004.
Now comes a report on the case from another noted scientist, Craig Beyler, who
was hired by a special commission, established by the state of Texas to
investigate errors and misconduct in the handling of forensic evidence.
The report is devastating, the kind of disclosure that should send a tremor
through one’s conscience. There was absolutely no scientific basis for
determining that the fire was arson, said Beyler. No basis at all. He added that
the state fire marshal who investigated the case and testified against
Willingham “seems to be wholly without any realistic understanding of fires.” He
said the marshal’s approach seemed to lack “rational reasoning” and he likened
it to the practices “of mystics or psychics.”
Grann told me on Monday that when he recently informed the jailhouse snitch,
Johnny Webb, that new scientific evidence would show that the fire wasn’t arson
and that an innocent man had been killed, Webb seemed taken aback. “Nothing can
save me now,” he said.
Barry George is not the first person
to be wrongly convicted of murder
and
then have their conviction quashed.
01 Aug 2008
Last Updated: 6:27PM BST
The Daily Telegraph
By Caroline Gammell
Stephen Downing spent 27 years in prison for the murder of Wendy Sewell, a
typist who was killed in a churchyard in Bakewell, Derbyshire, in 1973.
His conviction in the so-called "Bakewell Tart" case was hailed as one of
Britain's worst miscarriages of justice when he was freed in January 2002.
Mr Downing received an initial £250,000 payment on release from prison and
further £500,000 in 2006 because he was not told he was under arrest or that he
had the right to a solicitor.
He was 17 with a mental age of 11 when he was convicted of beating 32-year-old
Mrs Sewell to death with a pick-axe handle at a cemetery in Bakewell.
He was arrested and interviewed for about eight hours before admitting the
attack. Later he retracted his confession but was convicted the following year.
Stefan Kiszko was convicted of killing 11-year-old Lesley Molseed in 1976 and
served 16 years before being released in 1992.
The tax clerk, from Rochdale in Greater Manchester, was found guilty of
abducting the girl and then stabbing her on a moor in West Yorkshire.
Mr Kiszko, who was described as "odd and vulnerable", spent nearly two decades
in prison before the Court of Appeal acknowledged that his impotence meant he
could not possibly have killed her.
He died of a heart attack aged 44 just a year after being released.
His mother Charlotte died four months later and because he had no other
relatives, the Government did not have to pay him compensation of more than
£500,000.
Ronald Castree was finally convicted in November 2007, having committed the
crime as a 21-year-old.
Timothy Evans, 25, was hanged on March 9, 1950, for the murder of his wife and
daughter.
Deemed to be of low intelligence, the Welsh van driver with an IQ of 70
apparently "confessed" to killing his wife Beryl and their 14-month-old daughter
Geraldine in 1949.
Three years after his execution, former neighbour John Christie confessed to
strangling eight victims - including Mrs Evans and Geraldine.
Mr Evans received a post-humous official royal pardon in 1966, but his case
helped bring about the abolishment of capital punishment.
His family fought for compensation right up until 2004, arguing that the royal
pardon was "inadequate remedy".
Unemployed Colin Stagg was tried for the murder of 23-year-old Rachel Nickell,
who was killed while walking with her two-year-old son on Wimbledon Common in
1992.
He was charged with murder and spent a year in prison, but the judge presiding
over the case threw out the charges against him because they were based on a
honey trap operation.
Trial judge Mr Justice Ognall described it as "wholly reprehensible'' and
"deceptive conduct of the grossest kind" and threw the evidence out.
Mr Stagg is still trying to claim more than £1 million compensation from the
Metropolitan Police but the case is on hold while the police investigation
continues.
Robert Napper, 41, has been charged with Miss Nickell's murder and appeared in
court last November.
