Killing Justice: Government Misconduct and the Death Penalty

Twelve years ago, when Jimmy Carter was in the White House, Gary Nelson was convicted and sentenced to die for the 1978 rape and murder of a 6-year-old child in Chatham County, Georgia, the kind of high-visibility crime that exerts great pressure on police and prosecutors to solve quickly.

On November 6, 1991, after more than eleven years protesting his innocence—watching time forever slip away behind him while it moved him closer and closer to the electric chair—Nelson was released. A free man.

It had taken his appellate lawyers, working without pay, that many years to prove that the government’s capital case against their client rested on a foundation of official lies, the knowing use of false testimony, and the willful suppression of evidence in the state’s possession which not only tended to support Mr. Nelson’s claim of innocence, but which pointed to the guilt of another.

Although he spent more than a decade of his life on death row, Mr. Nelson might still be considered lucky. Others with equally compelling evidence of official government misconduct remain imprisoned in every state in the country and on every death row. Some, like Roger Coleman in Virginia and Barry Fairchild in Arkansas, face the possibility of imminent execution despite the misconduct.

For others, like Warren McCleskey and Bobby Francis, it is already too late. Both men were executed in 1991.

Misconduct by the government in the pursuit of a death sentence can take many forms. But whether it involves the use of threats and intimidation to obtain a “confession,” the use of jailhouse informants who secretly enter into deals with the prosecution for their testimony, or the government’s unrevealed promise of leniency for one co-defendant in exchange for his or her testimony against another, the resulting death sentence is fundamentally unfair, and cannot be tolerated in a society which honors the principle that no person is above the law.

Misconduct often begins with the police. It can be as subtle as an implied threat for failing to cooperate or as overt as the beating of Rodney King. Often, the police are under great pressure to act quickly, especially when the murder victim is white, prominent, a child or a police officer. As former head of Philadelphia’s organized-crime homicide squad Frank Friel says, “The supervisor wants your report in.

There’s pressure from the victim’s family. You’re working for 36 hours straight. It becomes a challenge to prevail—a good guy versus bad guy thing.”[1]

Often, the police develop a theory of the crime and then search out evidence—and suspects—that support that theory. Then, when they arrest someone, they proceed as if the suspect is already guilty. “The mentality and the pressure are to not let the guilty guy go free,” Friel, now chief of police in Bensalem, Pennsylvania, explains. “When you see shortcomings, you hedge. You block out anything that doesn’t fit… You feel you have no obligation to bring up evidence pointing to others. Why cloud the issue?” [2]

Sometimes, the scenario is not so benign. “Two men who claimed to have been the only witnesses to the 1978 San Bernardino murder of a police officer’s son now say they actually saw nothing, but were pressured by police into giving false testimony that has kept an innocent man in prison for 13 years,” begins a recent article in the Los Angeles Times. The fact that the victim was the son of a police officer greatly increases the likelihood of such misconduct. According to the article, one of the witnesses gave the police what they wanted only after being handcuffed to a motel room bed during 24 hours of questioning. Before trial he recanted, but the district attorney allegedly covered it up so the defense never learned of the recantation.[3]

In the case of Barry Fairchild detailed later in this report, the evidence is that the sheriff and his deputies engaged in overt brutality, both verbal and physical, against a succession of black suspects until one of them gave in to the intimidation and signed a confession. As is often the case, Fairchild was the least able to withstand the assault. Mentally retarded, he finally told the police what they wanted to hear.

Racism is often the motive for official misconduct. When the U. S. Court of Appeals for the Eleventh Circuit reversed the death sentence of Jimmy Lee Horton in September, 1991, they singled out District Attorney of the Ocmulgee Judicial Circuit Joe Briley for special censure. In a succession of death penalty cases, Briley has used his peremptory jury strikes to ensure that black defendants continue to be tried by all-white juries. In one case, Briley instructed the Putnam County clerk how to underrepresent blacks and women in the jury pool and not get caught. The court noted that since becoming D.A. in 1974, Briley has used 89.9% of his jury strikes against blacks in capital cases involving black defendants. Where the defendant is black and the victim white, that figure rises to 94.1%. In overturning Horton’s death sentence, the court reminded the prosecutor of his duty to do justice, and held that the prosecutor acted unconstitutionally to deny blacks the “right and opportunity to participate in the administration of justice.” [4]

In January, 1990, Clarence Brandley was released after spending nearly a decade on Texas’ death row for a crime he did not commit. The misconduct in that case involved every level of government, from the police who threatened witnesses to prevent them from testifying for Brandley, to the trial judge and the prosecutor who held secret meetings to rehearse objections and rulings, to the state attorney general who lied about the results of a lie detector test. What enabled Texas’ officials to pursue Mr. Brandley with such single-minded disregard for facts, fairness and basic justice was that the victim in the case was a white school girl who had been raped and murdered. The likely suspects were the school’s janitors, one of whom—Clarence Brandley—is black.

In 1987, U.S. District Court Judge Perry D. Pickett held that Brandley “did not receive a fair trial, was denied the most basic fundamental rights of due process of law, and did not commit the crime for which he now resides on death row… The court unequivocally concludes that the color of Clarence Brandley’s skin was a substantial factor which pervades all aspects of the State’s capital prosecution… In the 30 years this court has presided over matters in the judicial system, no case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation, an investigation the outcome of which was predetermined, and public officials who, for whatever motives, lost sight of what is right and just.” [5]

One of the most common features of death penalty cases involves the testimony of jailhouse informants or snitches—inmates who swear in court that the defendant confessed to them. For people in prison or jail, such testimony can be a powerful bargaining chip: in exchange for it, the state will often reduce the time they are serving or dismiss charges pending against them. Because the possibility of leniency is a strong inducement to lie, the prosecutor is required to tell the defense—who, in turn, will tell the jury—when such deals are made. With that knowledge the jury can weigh the credibility of the testimony. Misconduct occurs when such deals are kept secret.

Warren McCleskey was singled out from among four co-defendants by a cellmate who testified that McCleskey had admitted to him that he was the one who pulled the trigger. The prosecutor, when asked by McCleskey’s attorney, denied that anything had been offered in exchange for his testimony. That was a lie discovered inadvertently ten years after he had been sent to death row. When it was revealed, two jurors came forward to say they would never have sentenced Warren McCleskey to death if they had known of the deal.

His attorneys petitioned the federal court to remedy the clear misconduct of the prosecutor. Instead, the Supreme Court took the opportunity to announce a new rule: except under rare circumstances, prisoners can petition the federal courts for redress but once. If they fail to raise constitutional abuses the first time through—even if the failure is due to the government’s misconduct—the federal court is closed to them.

McCleskey had been through the federal court system once before, losing 5-4 on the issue of whether the death penalty is applied in a racially discriminatory way. [6] His attorneys did not raise the issue of the prosecutor’s illegal acts at that time, relying on official assurances that no deal had been offered. The Court’s new rule made clear that lawyers who trust the government to tell the truth do so at their own peril. Or, more precisely, at their clients’ peril. Warren McCleskey was executed September 25, 1991.

The unreliability of this kind of testimony was dramatically brought home when jailhouse informant Leslie White showed how a prisoner with intelligence and a telephone can learn enough details about a pending case to sound convincing even if he has never met the person he testifies against. His admission to reporters in Los Angeles that he had fabricated a dozen confessions of others in exchange for lenient treatment led the Los Angeles County Grand Jury to investigate. In 1990, the Grand Jury’s Special Counsel, Douglas Dalton, reported that, “Despite all the warnings of misconduct—by admissions of the informants, notice by the courts, and even an internal campaign within the district attorney’s office—the district attorney’s office deliberately rejected taking the necessary action which would have effectively ended these practices.” The Grand Jury concluded that the Los Angeles County District Attorney’s Office had “failed to fulfill the ethical responsibilities of a public prosecutor.” [7]

Despite this, in a subsequent capital case in which the condemned maintained that the informant’s testimony against him was perjured, the California Supreme Court held he had no right to see the D.A.’s files on “mere speculation.” In a stinging dissent, two justices called the ruling a “Catch-22”—prohibiting the accused from seeing the files without concrete facts while denying him the opportunity to get those facts. The dissenters described the majority opinion as “a miscarriage of justice which may return to haunt us.”[8]

Since prosecutors do not have to open their files for inspection, no one can be sure how widespread the practice is. After canvassing post-conviction cases in California, however, attorneys for the California Appellate Project estimate that “close to a third of those individuals suffering death judgments have had jailhouse informants involved in some capacity in their cases.” That translates to roughly 100 people under sentence of death in California and, extrapolating to the entire country, more than 800 condemned prisoners nationwide!

A deadly variation of the undisclosed deal involves the use of co-defendants. Here, instead of jailhouse informants providing the testimony essential for a conviction or a death sentence, it is provided by someone else implicated in the crime. It is a common practice for prosecutors to promise leniency to—or threaten more serious punishment for—one defendant in exchange for testimony against another.

On the eve of Thanksgiving, 1991, Texas’ officials were gearing up to execute Justin Lee May on the basis of just such testimony. At May’s trial, co-defendant Richard Miles testified that it was May who pulled the trigger. May was found guilty and sentenced to death. In exchange for his testimony, Miles was allowed to plead guilty to a non-capital offense. Just four days before the execution, overcome by a guilty conscience, Miles recanted his damning testimony.

In his affidavit, Miles stated: “While I was present, and was an eyewitness to the offense, Justin Lee May was not present, nor did he participate in the offense in any manner. All of my testimony concerning his involvement in this crime was untrue… (The police) told me that I could be executed if I didn’t cooperate, so I decided to cooperate with the police and tell them what they seemed to be after… Before the trial I was afraid that if I didn’t point the finger at May, they would pin me on capital murder and I would be executed… Even now, I am afraid the police will come after me and find some way to have me locked up again. But my conscience is eating at me, and it’s time to tell the truth regardless of what may happen to me.” [9]

May is lucky. Not only did his accuser come forward to clear his conscience, the Fifth Circuit Court of Appeals stayed the execution, providing time to examine the new evidence. Bobby Francis was not so lucky.

A judge sentenced Francis to death in Florida in 1983 despite a jury-recommended life sentence. It was Francis’ third trial for the offense. (Two earlier trial results had been set aside because of flawed proceedings.) In the first trial, a co-defendant, Charlene Duncan, had been convicted and sentenced to life in prison. By the time Francis was tried a third time, Ms. Duncan, who was serving her life sentence, was represented by the same man then prosecuting Francis. Just before trial, as reward for her testimony against Francis, the prosecutor filed a motion to have Duncan’s conviction and sentence vacated. When Francis was convicted and sentenced to death, the motion on Duncan’s behalf was granted. She pled guilty to third degree murder, was sentenced to “time served,” and was released.

State Supreme Court Justice Ben F. Overton observed that he was “deeply concerned about the conduct of the prosecutor… Such conduct adversely affects the credibility of our justice system,” the judge wrote. [10] It also adversely affected Mr. Francis who was executed in Florida on June 25, 1991.

Jim McCloskey, director of Centurion Ministries, spends all his time investigating claims of wrongful convictions by the imprisoned. He estimates that half the cases he sees involve alleged confessions by one defendant to another that later prove to be false. When he first came across this aspect of homicide cases, he could not understand what prompted an individual to lie about someone confessing to murder. It was explained to him quite simply by a defendant who, like Richard Miles in the case of Justin Lee May, had falsely testified about such a confession and later recanted. “It’s a matter of survival. Either I go away or your guy goes away. And I ain’t going away.”[11]

Occasionally, the unreliability and unfairness of death sentences secured on this basis reaches the conscience of elected officials with the power to act. Anson Avery Maynard was scheduled to die in North Carolina on January 17, 1992. Just one week before the execution, on January 11, Governor Jim Martin commuted Maynard’s sentence to life in prison because of doubts about his guilt. The governor’s office noted that there was no physical evidence linking Maynard to the 1981 murder for which he was sentenced to die, and that the eyewitness testimony came from someone who admitted his participation in the murder and, for his testimony, was given full immunity from prosecution. [12]

Governor Martin’s commutation requires a political courage rare in most elected officials these days. It was the first commutation in North Carolina since that state reinstated the death penalty in 1976. The irony is that although Maynard is no longer under threat of execution because of doubts about his guilt, he is confined to prison for life despite those same doubts. At least, however, if he is later proven innocent, the state can partially rectify its error.

There is another motive for a form of misconduct that all of us engage in from time to time. It might be described as “Cover Your Ass.” When we make mistakes, even inadvertent, it is often difficult to own up. But when those mistakes lead to a sentence of death, covering them up adds another layer of misconduct, deadly and deliberate.

In the U.S. government’s non-capital prosecution of Leonard Peltier for the murder of two FBI agents in 1975, the case rests largely on the testimony of a mentally ill woman, Myrtle Poor Bear, who swore she saw Peltier kill the agents in cold blood. Later, she recanted the testimony, claiming the FBI threatened to take her daughter from her if she did not testify. But when she came forward to speak the truth, the judge ruled her incompetent, and refused to take her testimony.

When asked about the use of the coerced testimony by “60 Minutes” reporter Steve Kroft, Assistant U.S. Attorney Lynn Crooks, who prepared the government’s case against Peltier, said, “It doesn’t bother my conscience one bit… He got convicted on fair evidence. Doesn’t bother my conscience one whit. I don’t agree that there’s anything wrong with that, and I can tell you, it don’t bother my conscience if we did.”[13]

Unfortunately, this willingness to defend the indefensible is all too common in capital cases, as a number of the examples discussed in this report make clear.

This report, which details four principal cases and summarizes numerous others, is not meant to be the definitive study of prosecutorial misconduct in capital cases. Rather, it is designed to call attention to the fact that such misconduct is widespread, is not confined to a single region of the country, and often leads to wrongful convictions and even to the execution of the innocent. It is designed to remind us that we are all implicated when the government is guilty of illegalities, when it forgets the constitutional mandate to “establish justice” and engages in the same kind of acts which, if committed by individuals, could be criminally prosecuted. It is designed to remind us that every aspect of a legal process that ends in the sentence of death for a fellow citizen cries out for deliberate, careful review to ensure that the sentence was obtained legally—and to prevent “the people” from executing an innocent person.

The prosecutor in a criminal case is usually a politician—the elected local district attorney or state attorney general—whose client is the people as a whole. Unlike a defense attorney, whose task it is to provide the most effective advocacy possible for the accused, whether innocent or guilty, the people’s representative is not tasked to win a case but to do justice. When the government sacrifices justice for a courtroom victory, the entire judicial process is corrupted.

As a federal appeals court judge wrote in overturning a Louisiana death sentence because the prosecutor had exculpatory evidence in his possession which he did not reveal, “Such conduct would be reprehensible in an ordinary case; where a man’s life is at stake, it is beyond reprehension.”[14]

“This is a sordid story; an account of prosecutorial misconduct perpetrated by government officials and hidden from view for seventeen years. Three times warrants for the execution of John Knapp were issued; once the execution date was a mere 36 hours away. If Knapp had kept any of his appointments with death, the facts we are about to describe would never have been known.”

Thus begins an extraordinary tale of official lies, omissions and coverups by Arizona prosecutors as outlined in the “Motion To Dismiss For Prosecutorial Misconduct” in the case of State of Arizona v. John Henry Knapp.

The 60-page motion details a hair-raising collection of squalid misdeeds and lies by then-Maricopa County Attorney Charles Hyder (now an assistant in the U.S. Attorneys Office) and his associates with the single-minded purpose to secure a capital conviction against John Knapp whatever it took.

Knapp’s Kafkaesque odyssey began on November 16, 1973 when, in a fire of unknown origin at the Knapp household, John and Linda Knapp’s two children burned to death. Shortly before the coroner’s inquest, Linda Knapp fled to Nebraska. Eleven days after the fatal fire—following extensive and arduous interrogations during which prosecutors, police and sheriff officers, and the State Fire Marshall all insisted the fire had to have been deliberately set either by John or Linda—John confessed that he had set the fire. Within minutes, he recanted his confession. Since then, he has never wavered in his insistence that he is innocent and that his confession, motivated by a desire to protect his wife, was false.

Before he confessed, Knapp was told that a fuel can found at the site of the fire had no identifiable children’s prints (thus ruling out accident), but did contain numerous adult prints. At the first trial, these adult prints were reported to be smudged and unidentifiable. That trial ended in a hung jury. At the second trial in which John Knapp was convicted and sentence to death, the defense merely accepted the prosecution’s assurances that no prints could be identified.

Prosecutor Hyder made much of this to the jury. Yet he knew it to be a lie—a lie unrevealed until summer, 1990, when the case passed from the control of the County Prosecutor to the state Attorney General’s Office. Then, for the first time, officials of the state revealed the contents of the crime lab’s analysis of the fuel can. There was no reference at all to smudged prints in it. In fact, as Mr. Knapp’s lawyers learned for the first time, on the day before he confessed, numerous, identifiable adult prints had been lifted from the can. Not one of them belonged to John Knapp.

In the “Motion To Dismiss…” John Knapp’s attorneys state the centerpiece of their claim without adornment: “Within hours of John Knapp’s confession, the police and prosecutors must have known that his prints were not on the ‘murder weapon.’ They knew that his confession was false.”

When the existence of this report was revealed in 1990, the attorney general ordered that Linda Knapp—granted immunity at trial and never called to testify—be fingerprinted for the first time. The prints on the fuel can belong to her.

Within hours of his confession, John Knapp asked his captors for permission to telephone his wife in Nebraska. They granted his wish and secretly recorded the conversation. For seventeen years, the existence of that tape recording has remained hidden. In that conversation, the young Knapp tells his wife that he is innocent, that he confessed only to protect her, that police supplied him with the necessary details to make his confession. He repeatedly asks her to return to Arizona. She says if they want her, they’ll “have to come and get me.”

These examples of misconduct are the tip of the iceberg. Others in the “Motion To Dismiss” include:

• Hundreds of exculpatory witness interviews the prosecution recorded but hid from the defense—and from the jury;
• The repeated assertions by the prosecutor at trial that Knapp was a cold-blooded killer who never showed any emotion when confronted with the fact of his children’s death were lies; he knew what the defense only learned 17 years later: that Knapp had “started shaking all over and started crying” when shown photos of his daughters;
• A reenactment of the fire undertaken by the state was never revealed. A video of that reenactment was only recently disclosed, but, mysteriously, the film footage has been taped over and obliterated.

The “Motion To Dismiss,” filed in April, 1991, concludes: “The totality of evidence withheld—fingerprints, tapes, videotape, investigative reports, defendant’s

statements—would be enough to conclude that the sanction of dismissal (of murder charges) is the only just sanction. The heart of the Knapp story, however, is much darker. The horror at the dark heart of this case is that the prosecutor himself, aided by those who assisted him in the prosecution, chose to lie to hide from view the evidence of Mr. Knapp’s innocence.”

The motion was denied. In October, the state of Arizona took Mr. Knapp to trial for the third time. For the third time they sought to have Mr. Knapp put to death in the state’s gas chamber.

Two days before Thanksgiving, on November 26, 1991, another jury again announced itself hopelessly deadlocked—the second hung jury in three tries. The state has announced its intention to prosecute Mr. Knapp yet again on charges of capital murder. The trial date is now set for May 4, 1992.

Gary Nelson lived on Georgia’s death row for eleven years. During that time, fifteen of his fellow condemned prisoners—fifteen people with whom he lived 24 hours a day—were taken from their cells to the state’s very active electric chair and killed. “The burnt flesh is something I will never forget,” he recently said. “It was horrible the way they let us smell him cooking.”[15]

Today, Gary Nelson is a “free” man. Free, that is, of his prison cell and death sentence. He can never be free of his experience, of his memories.

Freedom came on November 6, 1991, after the state supreme court unanimously agreed that both his original conviction and death sentence were illegally obtained because the government withheld and lied about critical evidence. Chatham County D.A. Spencer Lawton, who did not prosecute the original case, acknowledged, “There is no material element of the state’s case in the original trial which has not subsequently been determined to be impeached or contradicted.”

The state’s case was a classic example of creating facts to fit a theory, of hiding facts that undermine it, and of perjury to obtain a courtroom victory. It is an example of a governmental conspiracy that almost resulted in the execution of an innocent person.

Nelson’s odyssey began on a quiet Sunday evening 14 years ago, the last time six-year-old Valerie Armstrong was seen alive. On that Sunday evening, February 19, 1978, Valerie and her neighborhood friend, eight-year-old S.W., were playing together when they decided to walk to the store. When they got there, Valerie didn’t have any money, so she told S.W. she was going to ask “Uncle Al” for the money to buy some candy. Alphonso Swinton, known to the neighborhood children as Uncle Al because he gave them change for bringing him pecans, lived nearby. He shared a house with Gary Nelson.

When the two girls arrived at Mr. Swinton’s house, according to S.W., they parted. The last time she saw Valerie, she was walking toward the door. A man was working on a Volkswagen in the driveway.

Valerie’s body was discovered the next day in the woods behind her house. She had been raped and stabbed to death. A broken knife was found nearby. A number of body hairs were also found, one of which became crucial evidence in the state’s case against Gary Nelson.

Nelson had had minor brushes with the law. Because he lived nearby and was known to the police, he was an immediate suspect. A week after Valerie’s body was found, Nelson met with the detectives voluntarily. Although he protested that he did not know the little girl, his house was searched. The police found nothing.

Nelson was arrested in May, 1978. It was not until a year and half later, in October, 1979, that he was indicted by the grand jury.

As in many death penalty trials, the state had no evidence directly linking him to the crime—no eyewitnesses, no fingerprints, no confession. What they did have were suspicions. Upon their suspicions, they built a circumstantial case which rested on three pieces of crucial testimony.

First, there was S.W. Although the child testified in court that Nelson was not the man she saw working on the Volkswagen that day, she was contradicted by Detective D. L. Burkhalter, an officer of the Chatham County Police Department. Burkhalter, who had led the young girl through a photographic lineup during the investigation, testified that she had “readily identified” Nelson in the lineup. If his version of events was true, he created the impression that Nelson was the last to be seen together with Valerie.

Second, there was the hair found on the body. Roger Parian, director of the Savannah Branch of the State Crime Laboratory, testified that he had mounted the hair on a slide, examined it, and determined that it came from the arm of a black person. He further narrowed the field to any of about 120 black people, including Nelson, out of Chatham County’s 60,000 black residents. District Attorney Andrew J. Ryan III had told the jury in his opening statement that “the hair that was found on the body and the known hair from the arm of Gary Nelson have, in (Mr. Parian’s) opinion, the same origin.” [16]

Third, there was the knife. The state alleged the knife had been brought into Nelson’s house by his girlfriend whose brother, Bobby Butler, owned it. When Butler was called by the defense, however, he testified that the police had shown him photos of the knife which he could not identify. He also testified that, despite numerous visits to Nelson’s house, he had never seen the knife there. The state offered Detective Robert Wedlock in rebuttal. Wedlock testified that Butler had told him over the phone that if it contained a toothpick hidden in the handle, he could identify the knife as belonging to his father. Wedlock said that as a result of this conversation, he opened the knife and found, for the first time, a toothpick in the handle. [17]

The jury convicted Nelson and sentenced him to death. His mother, Viola, suffered a stroke in the courtroom and collapsed.

Very shortly after Nelson was convicted, the Atlanta law firm of Bondurant, Mixson & Elmore saw the trial transcript, and decided to get involved in Nelson’s appeals on a pro bono basis. After ten years of investigation—at an estimated cost to the firm in excess of a quarter million dollars in billable time [18]—they uncovered crucial evidence in the files of the prosecutor that neither Mr. Nelson’s attorney, nor the jury that convicted him, ever saw.

The prosecution is required to reveal any exculpatory evidence it possesses—evidence that benefits the defendant.[19]Despite proper motions filed on Nelson’s behalf by his trial lawyer for all exculpatory evidence, and a direct order from the judge to comply, none was turned over by the prosecutor. When the file was finally opened, it revealed that the prosecution’s case not only rested on a framework of official, governmental perjury, but that the District Attorney had in his files considerable evidence that supported Nelson’s claim of innocence. Indeed, the D.A. had substantial evidence pointing to the guilt of another individual—evidence he concealed for a decade.

The entire circumstantial case against Nelson collapsed. First, contrary to the perjured testimony of Roger Parian of the state crime lab, he had not examined the arm hair found on Valerie Armstrong’s body, nor did it implicate Nelson in any way. Instead, responding to Parian’s request, the hair had been examined by the FBI’s crime lab in Washington which sent its report directly to Parian. “This hair is not suitable for significant comparison purposes,” the report concluded. In a sworn affidavit, Myron Scholberg, the former Unit Chief of the Microscopic Analysis Unit of the FBI’s crime lab, testified that “the limb hair obtained from the victim could have come from any black person, including, but not limited to, other suspects in this case or the victim.”[20]

Next was the testimony of Detective Burkhalter that S.W. had “readily identified” Nelson from a photo lineup. It was a lie. A verbatim transcript of the taped police interview in the State’s files but never turned over to the defense reveals that the child was anything but positive. “I don’t know how he looked,” she responded at one point to the detective’s prodding. Each time she gave a tentative reply, the officer encouraged her to disregard her doubts and make a positive I.D. from the photos. Finally, she pointed to the photo of Nelson and said, “…I saw a man something like that but I don’t know if he is… he looked something like the man…”[21] She described the man she saw as bald and thin, neither of which fit Nelson. Indeed, her answers were consistent with her courtroom testimony that Nelson was not the man she saw in the yard.

Finally, there was the knife. Despite the courtroom testimony of Bobby Butler, the brother of Nelson’s girlfriend, that he could not identify the knife, Detective Robert Wedlock had testified that Butler had told him he could identify the knife if it contained a toothpick in the handle. Wedlock opened the knife at that point, he testified, and found the toothpick.

But Detective Wedlock had tape recorded the interview. Had the D.A. revealed the existence of such a recording to the defense, it would have impeached Officer Wedlock’s sworn—but perjured—testimony.

The transcript reveals that Butler consistently denied that he could identify the knife. Moreover, the transcript shows that the “hidden toothpick” in the knife’s handle was not something Butler had told them about, but was known by the police since the day the knife was found. “The only logical conclusion which can be drawn is that the prosecutor knowingly used the perjured testimony of Detective Wedlock to obtain a conviction of Mr. Nelson,” the habeas corpus petition to the state supreme court asserts. [22]

Beyond the official lies and misrepresentations, the files also contained a wealth of other, unrevealed exculpatory evidence:

• statements of multiple witnesses corroborating Mr. Nelson’s assertion that he was on the other side of town when Valerie disappeared;
• substantial and specific, concrete evidence that the crime was done by someone other than Nelson, including a confession;
• information that S.W. was not the last person to have seen Valerie Armstrong alive—she was seen by multiple witnesses after leaving the house where Gary Nelson had allegedly been working on his Volkswagen.[23]

In May of 1990, Butts County Superior Court Judge E. Byron Smith heard the new evidence, concluded that material information was indeed withheld from Nelson’s trial lawyer, but nevertheless upheld the death sentence, ruling that it would not have made a difference in the trial’s outcome. It was on an appeal from this decision to the state supreme court that finally brought some measure of justice, ultimately leading to Gary Nelson’s release.

“I want to spend some time with my family,” he said just before being released. “I feel like they are all strangers.”[24]

Emmet Bondurant, who still supports capital punishment and whose firm won Nelson’s release, had never before been involved in a death penalty case. His experience has left him shaken and distrustful. “The case is an unfortunate illustration of what can happen,” he says. “It’s pure system abuse.”[25]

It was the kind of crime that inflames local passions: the kidnap, rape and murder of a 22-year-old, white Air Force nurse described as “a good Christian girl;” a former homecoming queen and cheerleader raped and murdered by one or more African-Americans. It was the kind of crime for which, in the not too distant past, a black suspect might well have been lynched. But in Little Rock, Arkansas, in 1983, things were different. Or were they?

On the evening of February 26, 1983, a state trooper gave chase to a car belonging to Marjorie “Greta” Mason. In North Little Rock, the car screeched to a halt and two black men got out and ran. The following morning, Mason’s partially nude body was found near an abandoned farm house. Public outcry was immediate and furious. Tommy Robinson, the local sheriff who would be elected to Congress the next year, went on the air to denounce the crime and promise swift justice. “If you can beat, rape and sodomize a female in our society and get away with it,” he told his radio audience, “we’re all in trouble… It’s imperative that he is picked up.”[26]

Six days later, after the media had reported many details of the crime, the police received a tip from an unnamed informant, a man described in police files as inaccurate about half the time, with a tendency to ggerate.[27] The names he gave the police were the brothers, Robert and Barry Lee Fairchild.

Barry Fairchild was arrested outside a house surrounded by Pulaski County Sheriff’s deputies. As he emerged, unarmed, 30 to 50 police surrounded him. He fell to the ground and the deputies released their dog, Jubilee. Fairchild was badly bitten on the neck, side and head. It required seven stitches to close the gap on his head. After being treated at the local hospital for the bites, he was taken to the police station for questioning.

Within a very short time, Barry Fairchild, functionally illiterate and mentally retarded, confessed on camera. He told them he had participated in the crime, but did not actually kill Ms. Mason. He said he was outside an abandoned farmhouse sitting in Mason’s car when his accomplice raped her and then shot her twice in the head inside the farmhouse. In important details, Fairchild’s confession did not add up.

Before the night was over, Fairchild confessed again on videotape. This time, his con-fession, at variance with the first in many respects, was consistent with what the police knew of the crime.

The discrepancies in the confessions were not the only problems with the case. Fairchild, for example, named his accomplice but later maintained that the name was supplied to him by his interrogators. Subsequently, it was learned that the man he named was in Colorado at the time. None of the fingerprints found in the car or on Mason’s belongings could be identified as Fairchild’s. A local store owner identified a hat found near the body as belonging to Fairchild. Yet, none of the hair found in it was his. Semen found on Mason’s body was blood type O, while Fairchild is blood type A. But none of this mattered. The police had a confession and with a confession they could get a conviction. (When Robert Fairchild was questioned, he resolutely said he knew nothing of the crime. He was never charged.)

During the trial, Fairchild recanted the confessions, saying that he had been threatened and beaten by Sheriff Tommy Robinson himself and Major Larry Dill. He testified that when he told the police he knew nothing of the crime, Robinson hit him on the head with the barrel of a shotgun and Dill kicked him in the stomach repeatedly. He said he had been rehearsed for twenty minutes on what to say. (At one point on the videotape, he is asked how many times Mason was raped. He pauses, looks behind the camera, waits with his mouth open, then finally raises two fingers. He looks back at the camera and says, “Two, two times.” [28])

The jury believed the sheriff. District Attorney, Chris Raff, prosecuting his first murder trial as an elected official, said he didn’t think anything less than death would be appropriate for Fairchild. The jury believed that, too. On August 2, 1983, they sentenced Barry Fairchild to die by lethal injection.

And that might have been the end of it. For seven years, lawyers for Fairchild tried in vain to obtain the evidence to prove his contention that the false confessions were beaten out of him. Finally, they received an anonymous call telling them that they were crazy if they thought Barry Fairchild was the only black suspect subjected to the kind of brutality he alleged at the hands of Tommy Robinson, who was by then Congressman Robinson. The caller gave names. The lawyers investigated. What they found made them sick.

Numerous other “suspects” had been brought in for interrogation one by one before they brought in Fairchild for questioning. They had one thing in common: they were all African-American. All but one “were subjected to horrifying brutality. They were beaten… several were bloodied… they were threatened with guns, often thrust into their faces, and they were kicked. All were pushed and shoved and knocked around. They were terrorized racially, threatened with hanging and with being killed and thrown in the river. They were called ‘nigger.’ …And they were all told, ‘we know you were involved, we know you raped and killed that nurse, we’re gonna’ do to you what you did to her if you don’t tell us what happened.’” [29]

A petition for habeas corpus relief was filed in the U.S. District Court seeking to invalidate Fairchild’s confessions on the basis that they had been coerced. A number of the men subjected to this governmental third degree testified at an evidentiary hearing in August, 1990. Some were too afraid to speak publicly.

Frankie Webb was arrested at his home at 3 in the morning several days after the murder. He testified: “Sheriff Tommy Robinson and three deputies… tried by force to get me to sign a confession that was already written out. They called me ‘nigger’ and threatened to kill me if I did not sign it. I refused…the three deputies hit me numerous times over the head with a telephone book… Robinson pulled a .38 revolver from his holster. He held it between my eyes and again threatened to kill me if I did not sign the confession. He cocked the gun. I was afraid and was about to sign… when he pulled it back and… I saw that there was no bullet in the chamber, so I again refused. [30]

Five deputies showed up at the home of Nolan McCoy three days before Fairchild’s arrest. At the sheriff’s office, “[Captain Bobby] Woodward turned and pulled a gun out and jammed it into my forehead. He said ‘Nigger, you know you done raped that nurse. Now you better tell the truth or I’m going to blow your fuckin’ head off.’ I could see his finger on the trigger, and I thought he was going to kill me. I grabbed his arm and got hold of the gun. It was then that I saw the gun was empty.” [31]

While they were working Nolan McCoy over, they were also working to get a confession from Randy Mitchell. According to McCoy, “I saw [Mitchell] in the other room. He looked like he had been beaten bad, and he was crying. His eyes were so swollen that they were almost shut.” [32]

Mitchell was then placed in a holding cell. Charles Pennington, who was put into the same cell, told the court: “Randy Mitchell was sitting on the bench in the cell. He appeared to have been beaten. His eyes were swollen and his lip had been split and was puffy and had been bleeding. I asked him what happened. He said, ‘They whipped my ass.’” [33]

Donald Lewis became the next suspect. “During the course of being questioned,” he told the court, “…I was physically, and verbally abused, as well as threatened because I wouldn’t confess to a crime that I did not commit. I surrendered samples of blood, saliva, and hair from my body to the police.”[34]

Not all the testimony of abuse came from the victims. Former deputy sheriff Frank Gibson testified that he had witnessed choking, beating and threats by Sheriff Robinson against Barry’s brother, Robert, shortly before Barry Fairchild’s arrest. He testified that Sheriff Robinson drove Robert to a wooded area, threw him on the ground, and threatened to kill him if he didn’t confess.

According to the former deputy, “Tommy Robinson and Larry Dill wouldn’t come out and say, ‘go back out there and whup him,’ you know, ‘go back there and hit him in the head.’ He’d say, ‘You know what I mean. Go on and do what you need to do. I want a confession. You know what I mean.’” [35]

But, like the others, Robert Fairchild didn’t confess. And finally, they got hold of Barry Fairchild.

The sheriff’s department had tried to coerce confessions from at least five other people in the two or three days preceding Mr. Fairchild’s arrest. The same kind of coercion directed toward Mr. Fairchild—physical abuse, brandishing weapons and threatening death—was directed toward the other five suspects as well. But, in the words of one of his appellate attorneys, Richard Burr, “Barry Fairchild had a vulnerability that none of the others had, primarily because he has mental retardation.”

Fairchild says, “To me it was a life or death situation. That’s the way I saw it… They probably would’ve found my body in some ditch the next morning… I truly believe that.” [36]

In June, 1991, the district court upheld the conviction and death sentence of Barry Fairchild.

His attorneys have appealed to the Eighth Circuit Court of Appeals. Attorney Dick Burr, with a nod to the history of Little Rock, Arkansas, wonders whether justice can prevail. “This case is a question about whether black people who have been terrorized and who speak about it with humiliation, with emotion, with tears—whether those people can be believed when the likes of Tommy Robinson say, ‘No, they’re liars.’” [37]

(See update at start of report)

Wanda Fay McCoy was raped and murdered on the night of March 10, 1981, while waiting at home for her husband. Understandably, tiny Buchanan County, Virginia, was shaken to its roots. Public outrage was intense, and the pressure to arrest a suspect fierce.

Police theorized that the crime had been committed by someone known to Mrs. McCoy since they reported no evidence of forced entry. Her husband named three men who might have been freely admitted into the house by his wife. Within a day, investigators had targeted Mrs. McCoy’s brother-in-law, Roger Keith Coleman, as the prime suspect.

Despite this near-immediate focus on Coleman, he was not arrested for weeks. The evidence gathered did not support the theory. Among other things, not one witness could place Mr. Coleman anywhere near the McCoy house on the night of the murder, and several witnesses could place him elsewhere.

Without a single piece of evidence linking Coleman to the crime, the prosecution miracu-lously got what it needed for conviction: an alleged jailhouse confession to a fellow inmate. Mr. Coleman had been placed in a cell with career criminal Roger Matney who came forward to allege, conveniently, that Coleman had confessed to him.

That was enough for the jury (one of whose members having since admitted that he wanted to serve to “help burn the S.O.B.” [38]) On March 19, 1982, they sentenced Roger Coleman to death. Acknowledging that the case against him was “entirely circumstantial,” the Virginia Supreme Court upheld both Coleman’s conviction and the death sentence.[39]

From the very beginning, Mr. Coleman has maintained his innocence. Now, long after his conviction, the state’s case against him has come apart.

To begin with, the police had in their files evidence of forced entry into Mrs. McCoy’s house; they also had evidence that she had gone outside that night to empty the trash. Both pieces of evidence completely undermine the premise leading to Coleman as suspect—that only an acquaintance could have committed the crime. Neither piece of evidence was revealed to Coleman’s defense attorney. [40]

Mr. Coleman’s knife, which the state claimed to be the murder weapon (yet never introduced into evidence) was one inch shorter and significantly narrower than Mrs. McCoy’s fatal wounds. [41] On the day after the murder, a neighbor discovered a bag containing sheets and pillow-cases covered with fresh blood and—among other things—a scissors. The discovery was reported to the sheriff, but its existence was never revealed to the defense. Its contents has still not been subjected to forensic tests.[42]

Mr. Coleman was a coal miner who had reported for work that night in jeans “dirty with coal dust.” Yet, despite evidence of a struggle, there was no coal dust found on Mrs. McCoy or her clothes or the vacuum sweepings from the house. [43]

Mr. Coleman took the stand in his own defense, testifying that he had been miles away at the mine when the crime occurred, and the state possessed a time card corroborating his alibi. The time card was never revealed to the defense. According to the prosecution’s theory, Coleman had left work early, parked his truck near the McCoy home, waded a stream, walked up a hill through a well-lit neighborhood, gained access, committed the rapes and murder, and returned to his truck. Under their theory, Coleman would have had at most fifteen minutes to enter the house, rape Mrs. McCoy twice—vaginally and anally—kill her, and then dispose of every scrap of physical evidence.[44]

Moreover, the police have since admitted that they mis-timed the route they allege Coleman took to prove he had time enough to commit the crime. They failed to account for the time it would have taken to wade the creek and walk through the subdivision to the McCoy household.

Finally, there is Roger Matney, the jailhouse informant who provided the only direct evidence against Mr. Coleman. Since then, he has recanted his testimony. Even at the time of his testimony—which was contradicted by other inmates who recalled that Coleman always maintained he was innocent—chief investigator Jack Davidson, who had a long relationship with the informant, told others he never believed Matney. [45] This, too, was never conveyed to the defense.

On February 3, 1982, just a month before Mr. Coleman’s trial, all four sentences Roger Matney was serving were suspended—at the urging of Mr. Coleman’s prosecutor, Mickey McGlothlin—and he was freed and placed on probation.

Beyond the evidence of official misconduct that has left the case against Roger Coleman in shreds, there is dramatic evidence that another person, Donney Ramey, committed the murder. For one thing, a growing number of women in the neighborhood have reported being sexually assaulted by Ramey in ways strikingly similar to the attack on Wanda McCoy. For another, one of these rape victims, Teresa Horn, has courageously signed an affidavit stating that Ramey told her he had killed Mrs. McCoy. He threatened to do the same to Ms. Horn.[46]

At the time of Mrs. McCoy’s murder, Ramey lived less than 100 feet from the McCoy household. His ground floor bedroom looked directly onto theirs. He has no alibi for the night the murder occurred.

In an extraordinary decision from the United States Supreme Court in this case on June 24, 1991, none of this mattered. To Justice Sandra Day O’Connor, the substance of these claims was irrelevant. Coleman’s allegations, Justice O’Connor wrote for the Court majority, would not be—and were not—evaluated by the Court. There was one reason for the decision not to consider the merits of Coleman’s claims: his appellate lawyers had failed to meet the filing date deadline by one day.

“This is a case about federalism,” Justice O’Connor wrote. “It concerns the respect that federal courts owe States and the State’s procedural rules when reviewing the claims of state prisoners in federal habeas corpus.”[47] Form had prevailed over substance.

The Supreme Court held that the state of Virginia could proceed with the execution of Roger Coleman without a single federal court reviewing the case. The decision was based on respect for state rules which Coleman’s lawyers had inadvertently failed to observe.

But what happens to fundamental decency and fairness when the state itself violates its rules—and the Constitution of the United States?

What happens when the state engages in secret deals to secure perjured testimony? What happens when the state possesses evidence tending to disprove its case, but fails to reveal it? What happens when it is more important to state officials to execute a man convicted of a crime than to pursue the likely conclusion that they have the wrong man?

Those are the questions that plague death penalty cases across the nation. The Supreme Court may yet have the opportunity to review the questions in the case of Mr. Coleman—if they can be persuaded by his lawyers that his conviction and execution would constitute “a fundamental miscarriage of justice.”

That is a big “if” in this case and the many others that raise similar claims. In the meantime, Roger Coleman waits on death row for his rendezvous with the electric chair— May 20, 1992, at 11:00 p.m.

[NOTE: The following list is merely a small sampling of cases involving prosecutorial misconduct. This list, by no means exhaustive, is designed to show that the pernicious effects of official lies and perjured testimony, secret government dealings with jailhouse snitches and criminal defendants, the withholding of exculpatory evidence by the government, and police abuse—the constellation of official acts in capital cases that goes by the name prosecutorial misconduct—is neither limited to a particular region of the country, nor, tragically, is it that uncommon.]

”(…the prosecutor) is the representative… of a sovereignty… whose interest… in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

—Berger v. United States, 295 U.S. 78 (1935)

ALABAMA

Clarence Womack

In 1981, a Montgomery market was robbed and the owner, Arthur Bullock, shot and killed. There were no eyewitnesses to the crime. The examples of misconduct leading to Womack’s conviction and death sentence in 1982 are multiple and complicated. But they include secret deals made with the state’s chief witnesses promising leniency for other crimes in exchange for their testimony; the attempt by Jimmy Evans, Montgomery County district attorney, to dissuade his witness from recanting his perjured testimony before the grand jury; suppression of strongly exculpatory evidence (Womack was probably innocent) as well as evidence pointing to the likely guilt of the state’s witnesses. In overturning Womack’s conviction and death sentence in 1988, the Supreme Court of Alabama held, among other things: that the state misrepresented that it had no plea bargains with key witnesses; that the prosecutor knowingly suppressed evidence that the state’s witness may have been guilty of the murder; that the prosecutor suppressed evidence of his witness’ attempt to recant his grand jury testimony implicating Womack; that the state suppressed a memorandum containing information indicating the state’s witnesses had committed the crime.

FLORIDA

Bill Jent and Ernie Miller

The two half-brothers, featured in a “48 Hours” segment on wrongful convictions, were sentenced to die in 1980 for the torch-murder of a woman in Central Florida. Prosecutors ignored an eyewitness who saw the woman’s boyfriend, Bobby Dodd, strangle her. They also ignored the fact that Dodd’s next girlfriend was murdered and set on fire in exactly the same manner as the original murder just four months later. Prosecutors also failed to reveal that the testimony of the chief prosecution witness had come to her in a dream. Finally, prosecutor Charles Cope withheld the names of six witnesses who had given the time of the offense as later than the state alleged—when both Miller and Jent had airtight alibis. When all this came to light, a U.S. district judge ordered a new trial within 90 days. Instead, the prosecutor offered a deal: plead to second degree murder and they could be freed. Reluctantly, the innocent men agreed to the deal. Jent said of the deal, “It’s strange. You go into court and plead innocent, and the motherfuckers send you to death row. Eight and a half years later you go back to court and plead guilty, and the motherfuckers let you go.”

James Richardson

Now 54, Richardson was convicted in 1967 of poisoning to death his six children in Arcadia, Florida. He spent 21 years in prison, including 5 years on death row. In 1989 his conviction was overturned because prosecutors withheld exculpatory evidence and knowingly used false testimony. When Chief of Police Richard Barnard, highly suspicious of the next-door-neighbor babysitter, originally raised doubts about Richardson’s guilt, DeSoto County Sheriff Frank Cline—up for reelection—prevailed on the gover-nor to have Barnard pulled off the investigation. Barnard, today a Florida probation officer, says, “Frank Cline framed James Richardson for a crime he did not commit. Cline shot his mouth off to the press and when he found he didn’t have a case against Richardson, he went and manufactured one.”

Joseph Green Brown aka Shabaka Waglimi

Brown was convicted and sentenced to death for the robbery, rape and murder of Earlene Barksdale in 1974 based on the testimony of one witness, Ronald Floyd. Both Brown and Floyd pled guilty to robbery, but Brown vehemently denied any connection to the homicide. Although Floyd denied having entered into any deal with the prosecutor for his testimony against Brown, after the trial, Brown was sentenced to 20 years for the robbery; Floyd was given probation. Only Brown was tried for the homicide; Floyd was never indicted. Although the D.A. knew he had entered into an agreement with Floyd for his testimony, he told the jury “there has been no promises made…in this case.” The 11th Circuit overturned Brown’s conviction and death sentence in 1986, holding that “The government has a duty to disclose evidence of any understanding or agreement as to prosecution of a key government witness. The government, in this case, did not disclose. The government has a duty not to present or use false testimony. It did use false testimony. The government has a duty not to exploit false testimony by prosecutorial argument affirmatively urging to the jury the truth of what it knows to be false.”

GEORGIA

Warren McCleskey

McCleskey was identified as the trigger-person in a multi-defendant felony murder case by a jailhouse informant whose deal with the state for his testimony was not discovered until 10 years after his conviction. The Supreme Court, acknowledging that undisclosed deals between the prosecutor and a state witness are unconstitutional, used the case to rewrite the rules on federal habeas corpus, essentially ruling that prisoners have, with some exceptions, but one bite at the federal apple. Because McCleskey had already been through federal habeas in which he did not raise the issue of misconduct, to raise it now constituted an “abuse of the writ.” The fact that the government had lied to defense counsel concerning the existence of the deal did not constitute one of the exceptions to the new rule. Warren McCleskey was executed on September 25, 1991.

Jimmy Lee Horton

Horton, a black man, was convicted of killing Don Thompson in the course of a burglary. He was sentenced to death by an all-white jury after the D.A., Joe Briley, used his peremptory strikes to remove all blacks from serving. In reversing his conviction and death sentence (Sept. 3, 1991), the 11th Circuit Court of Appeals held that Briley’s wholesale strikes against black jurors violated Horton’s constitutional right to a fair trial. The Court also took the extraordinary step of detailing the pattern of racism in Mr. Briley’s earlier criminal prosecutions. The court cites the case of Charlie Young sentenced to death in 1976 in Green County, Georgia, by an all-white jury. In that case, Briley knew the prosecution was unconstitutional because of his jury selection practices, but nevertheless obtained a death verdict. In another case cited, the Court refers to the “now infamous memo” authored by prosecutor Briley to the Putnam County clerk detailing how to underrepresent blacks and women in the jury pool so as not to rise to the level of constitutional violation. The defendant, Tony Amadeo, had his conviction and sentence overturned in 1988 when the memo was inadvertently discovered. In Mr. Horton’s case, a statistician for the defense found that in capital cases involving

black defendants, Mr. Briley had used 89.9% of his strikes against blacks, and in capital cases involving a black defendant and white victim, Briley used 94.1% of his strikes against black potential jurors. Mr. Briley, D.A. of the Judicial Circuit (eight counties) since 1974, should be singled out for special “recognition” for abuse of the system to obtain death sentences against black defendants. “A prosecutor has a duty to ‘do justice,’” the Court of Appeals pointed out in this case. “…Mr. Briley was exercising his peremptory challenges in order to deny blacks the ‘right and opportunity to participate in the administration of justice.’”

Billy Jo Wallace aka John Thomas Fugitt

Wallace was convicted and sentenced to death for the murder of John Evans for financial gain on the basis of testimony provided by the government’s witness, Kenneth Frady. Frady testified that he had loaned his car to Wallace who had used it to kidnap and rob the victim. When the car was returned three days later, according to Frady’s testimony, Wallace told him he had choked the victim to death and disposed of the body. After the jury’s verdict, it was discovered that Frady had been in jail at the time of the killing—and that the prosecution knew this. In 1983, the Supreme Court of Georgia overturned the conviction and sentence, finding that “there can be no doubt of any kind that Frady’s testimony in every material part is purest fabrication.” Because the court found Frady’s testimony was perjured and therefore invalidated Wallace’s conviction, it did not have to rule on numerous other allegations against the prosecutor, including instructing witnesses to testify falsely, surreptitious monitoring and recording of attorney/client conversations at the jail, seizing defense counsel files from the briefcase of an investigator meeting with Wallace at the jail, and more. Without having to rule on these allegations, the Georgia Supreme Court nevertheless found them “deeply disturbing and clearly inconsistent with a system of justice wherein the object of all legal investigation is the discovery of truth… our assessment of them is, at minimum, one of severe disapproval.”

Nathan Brown

In 1989 U.S. District Judge Dudley Bowen reversed both Brown’s conviction and death sentence—which took the jury less than 30 minutes to impose. “I have never, in almost 10 years on the bench, seen a sentencing phase in a death penalty case that is so infected with problems and error. It is very difficult to tell where the errors begin,” the judge said. He then cited some of those errors which included the fact that prosecutor Goolsby “made repeated and inappropriate references to petitioner’s reliance on the fifth amendment privilege. The effect of Goolsby’s argument was that petitioner should receive a death sentence because he invoked his constitutional right… Goolsby also compared petitioner to Judas Iscariot; urged the jury to base its decision on the Ten Commandments; urged the jury to ignore ‘techni-calities’; stated that the rain during (closing arguments) indicated that God was crying for the victim and was with the prosecution; implied that he would have dispensed ‘justice’ through a lynch mob rather than through a jury trial if one of his children had been the victim…”

John Eldon Smith aka Tony Machetti

Smith was convicted and sentenced to death for a double murder in 1974. The evidence was that Smith, aka Tony Machetti, spurred on by his wife Rebecca and friend John Maree, plotted to kill Rebecca’s former husband, Joseph Akins, to collect his life insurance. The plotters killed both Akins and his wife. Seven years after the conviction, evidence surfaced that D.A. Fred Hasty had entered into a secret agreement with defendant Marlee, against whom the physical evidence was strongest, to testify against the Machettis. Hasty had told a colleague about the agreement (promising a life sentence in exchange for his testimony) then signed an affidavit confirming the secret deal. In 1983, Hasty learned that the Georgia State Bar Association had filed disciplinary charges against him for this mis-conduct. Faced with suspension or disbarment, Hasty repudiated his sworn statements admitting the secret deal. He now stated that Maree had been offered nothing for his testimony, explaining that he had made his two prior sworn statements to the contrary because his “mind had become somewhat confused about what had actually happened.” The court chose to accept this new statement as true, and found no misconduct. Moreover, the jury that convicted Mr. Machetti had been drawn from a jury pool from which women had been unconstitutionally underrepresented. However, because his lawyer failed to object in a timely manner to this violation, the court ruled it was too late to raise the issue. His wife, the mastermind of the plot, had been convicted by a jury drawn from the same unconstitutional pool. Because her lawyer did make a timely objection, her conviction was overturned and, on retrial, she was sentenced to life. John Eldon Smith alone, the least culpable of the three defendants, was electrocuted on December 15, 1983.

ILLINOIS

Dickey Gaines

Dickey Gaines, a black man, was convicted of murder in 1979. During the sentencing phase of the trial, a young deputy bailiff and deputy sheriff of Cook County, Peter Bergquist, took the stand to testify that Gaines had made verbal threats, used vulgar language, instigated fights with officials, etc. The jury sentenced Gaines to death. In 1987, Bergquist signed a sworn affidavit recanting his earlier testimony. In his affidavit, he admitted: a general practice in the department of taunting black defendants; of instigating fights with Gaines in particular; of greatly exaggerating Gaines’ role in these incidents; of being coached by the States Attorneys to give the jury the impression that Gaines had threatened officers; of conspiring with his partner to lie to the jury about to consider Gaines’ life or death fate; of his general practice in his bailiff’s role of liaison between the court and the jury of influencing their deliberations when the defendant was black; of joking with the States Attorneys about “being the thirteenth juror.” Renouncing his role in the Gaines case eight years after the death sentence, Bergquist explained: “I was very young (20 or 21). I acted this way because of the atmosphere I worked under: I thought my duty was to act antagonistically to a prisoner and do whatever it took to get a conviction.”

Cornelius Lewis

Lewis was convicted of bank robbery and murder of a bank guard in 1979 and sentenced to death. (A co-defendant, was sentenced to 40 years.) Among the aggravating circumstances alleged against Lewis were four felony convictions in New York state. In post-conviction proceedings, Assistant State’s Attorney Jeff Justice and Assistant Attorney General Neal Goodfriend, representing the state, obtained records from New York demonstrating these aggravating circumstances —on which the jury based its decision to vote for death—were false. Neither Justice nor Goodfriend felt obliged to disclose this fact to Lewis’ attorney or to the presiding judge. Moreover, in a subsequent brief prepared for the Illinois Supreme Court, Goodfriend again represented that Lewis had four prior felony convictions from New York, though he knew this to be false. The Court reversed Mr. Lewis’ death sentence on these grounds, and concluded that “Conduct of two attorneys representing State in concealing petitioner’s true New York criminal record… and conduct of one in deliberately falsely stating to State Supreme Court that petitioner had four prior New York felony convictions merits reference to relevant Illinois disciplinary authorities.”

INDIANA

Larry Hicks

In a trial lasting just over one day, 19 year-old, retarded Larry Hicks was sentenced to death in 1978 for stabbing two men to death. In May, 1979, two weeks before his scheduled execution in the Indiana electric chair, a chance meeting with a private attorney led to a new investigation which led to the conviction being overturned on the grounds that Mr. Hicks did not understand the process and could not aid his attorney. Charges were refiled despite growing evidence of Hicks’ innocence. Investigators learned, among other things, that the prosecution: excluded evidence indicating that a principal witness against Hicks was a former mental patient whose perceptions were not reliable; excluded the report of the chief homicide detective indicating his subordinates had not properly investigated the case and that the prosecution witnesses were probably lying; the prosecution had failed to act on new leads not only exonerating Hicks but pointing to the guilt of others, including some who were prosecution witnesses. On retrial, Hicks was acquitted.

LOUISIANA

Tyronne Lindsey

Mr. Lindsey was convicted and sentenced to death for the murder of Earline Kidner. An eye witness, Richard Alexander, told police that he did not see the perpetrator’s face and therefore viewing photos of possible suspects would be useless. After Mrs. Kidner’s sister placed reward notices in the local newspaper and spoke with Mr. Alexander, she notified police that he now felt he could identify Lindsey as her sister’s assailant. In a second police report, Alexander—who indicated he had seen photos of Lindsey in the paper—positively identified Lindsey who was then indicted for murder. When Lindsey’s attorney sought the statements of the witnesses, the prosecutor replied that initially Alexander had expressed reluctance to make a positive ID but had since become certain. Defense counsel subpoenaed the D.A.’s files which were handed over to the judge for an in camera inspection. The judge ordered the D.A. to produce the original statement of Alexander stating he could not identify the perpetrator. Instead, the prosecutor supplied only the second statement which did identify Lindsey. The 5th Circuit Court of Appeals described the D.A.’s behavior in these words: “Such conduct would be reprehensible in an ordinary case; where a man’s life is at state, it is beyond reprehension. This is a capital case, and one moreover in which our reading of the evidence shows there is a real possibility that the wrong man is to be executed.”

Vernon Williams

Sometimes, the selection of a case to prosecute capitally is an example of misconduct by the D.A. even in the absence of specific illegal acts. Such is the case of Vernon Williams. In Jefferson Parish, Louisiana, the heart of David Duke country, a 19-year-old white woman, Edna Zelaya, was raped and murdered in 1982. Seven years later Vernon Williams, a black man with the mental capacity of a 7-year-old, was charged with the crime. He was implicated by a white man, Richard Powell, a diagnosed schizophrenic who was twice ruled incompetent to stand trial for his admitted part in the rape and murder. Powell changed his story three times, ultimately offering his testimony against Williams in exchange for a reduced charge. The only physical evidence against Williams were the results of DNA tests of semen which could not rule him out as a possible suspect—nor could it rule out more than 25 percent of the male population. Williams maintained total ignorance of any aspect of the crime. He knew Powell only slightly when the two had worked together briefly as custodians shortly before the crime occurred seven years earlier. He was never identified by any eyewitness, though one neighbor told the nearly all-white jury (containing one African-American) that she had heard a black man’s voice. She knew he was black, she told the jury, by “the heaviness of the tongue, the thickness of the words.” So weak was the case against Williams, prosecutors twice offered him deals to plead guilty to a lesser crime. In one of those deals, he would have walked out of jail a free man. But Williams refused. “I would be free,” he explained later, “but I didn’t want to take no lie.” He remained behind bars. The government’s only wit-ness, Powell, testified in “a sedated haze” because of the quantities of medication he requires for his mental illness. Despite all this, the jury returned a verdict of guilty on November 26, two days before Thanksgiving, 1991. “It’s still a case of a black man accused of killing a white woman,” Williams’ attorney, Robert Toale, commented after the verdict. In a stunning and extremely rare act, presiding Judge Robert Burns threw out the jury’s verdict on January 10. It was only the second time in 13 years on the bench he had undone a jury verdict. Referring to former Justice Potter Stewart’s oft-quoted remark about knowing obscenity when he saw it, Judge Burns addressed the stunned prosecutors. “I’m not sure I could define justice,” he said, “but I know an injustice when I see one.” It is now up to Jefferson Parish District Attorney, John Mamoulides, to decide whether to retry Williams. But at least for now, he is a free man for the first time in three years.

NORTH CAROLINA

Robert Henry McDowell

McDowell was convicted and sentenced to death in 1979 for the murder of a 4-year-old child. A 14-year-old eyewitness (who survived the assault) told police investigators that the attacker, whom she didn’t know, was white. Some time later, the child stated that her attacker was black and that she knew him. At trial, she testified that she had always described the assailant as black and known to her. The defense did not know of the initial investigator’s report to the contrary. Also withheld from the defense were police reports of white intruders in the home where the crime occurred. Two cousins of the 14-year-old had given statements that on two occasions they had seen white intruders, including just hours before the crime. The defense did not know of these statements. In 1988, the Fourth Circuit Court of Appeals overturned McDowell’s conviction and death sentence, noting that the child’s testimony “was the sole identification (which) determined the guilt or innocence of Robert McDowell… There is no evidence of matching fingerprints, bloodstains, body secretions, hair or fibers… Finally, evidence of a white intruder… hours before the attack demonstrates that there might have been another person who had motive or opportunity to commit the crime.” Ruling that McDowell was denied a fair trial “by the nondisclosure of the evidence,” the court reversed the conviction.

PENNSYLVANIA

Neil Ferber

Ferber, 39, was sentenced to death in 1981 for a double homicide. His conviction was based on the testimony of a jailhouse informant who later admitted to giving false testimony in exchange for a deal promising leniency, and involved deliberate police misconduct which may or may not have been known by the prosecutor at the time. Mr. Ferber was freed from prison as innocent in 1986, and is one of a number of subjects in a recent book entitled “Breaking the Mob.” The book was co-authored by former Philadelphia homicide detective, Frank Friel, who first suspected the misconduct and pursued it to its conclusion.

TEXAS

Randall Dale Adams

Adams, the subject of the documentary, “The Thin Blue Line,” was convicted and sentenced to death for the murder of a Dallas police officer in 1976 primarily on the basis of the testimony of David Harris, a 16-year-old facing a battery of charges himself. In addition, on the last day of the trial, the prosecutor, Douglas Mulder, produced three surprise witnesses who claimed to have seen the confrontation between the officer and the assailant, and identified Adams. These witnesses, it was later discovered, had entered into various deals with the prosecutor. One who identified Adams at trial had failed to do so in a police line-up and had given a description of the perpetrator that did not match Adams in any way—facts which the prosecutor failed to turn over to the defense. The prosecutor also withheld the original police reports in which the slain officer’s partner had been unable to identify Adams. When defense counsel learned that another surprise witness had confided to others that she couldn’t identify the perpetrator but was interested in the $20,000 reward offer, they attempted to contact Prosecutor Mulder who informed counsel that she had left the state and was unavailable. In fact, he had moved her to a different hotel in Dallas.

Harris, the government’s chief witness, later asserted that he testified against Adams “because of promises made to him by the prosecutor”—an assertion denied by Mulder. The Texas’ appeals court, however, in overturning Adams’ conviction in 1989, noted that following Mr. Adams’ trial, all charges against Mr. Harris “disappeared.” (Harris, now on death row for a subsequent murder, is widely believed to be the actual murderer.) The appeals court found that the prosecution had suppressed evidence and knowingly used perjured testimony to obtain a conviction against Mr. Adams.

Clarence Brandley

In 1987, U.S. District Court Judge Perry D. Picket ruled that Clarence Brandley, a black man sentenced to death in February, 1981, for the rape and murder of a white school girl, “did not commit the crime for which he now resides on death row.” The prosecution engaged in every conceivable misconduct. “In the 30 years this court has presided over matters in the judicial system,” Judge Pickett wrote, “no case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation, an investigation the outcome of which was predetermined, and public officials who, for whatever motives, lost sight of what is right and just.”

Brandley was released from prison in January, 1990. (See “Overview.”)

Jerry Lane Jurek

Jurek was sentenced to death in 1974 for the murder of a ten-year-old girl on the basis of two statements signed by Jurek 12 hours apart. The first admitted murdering the little girl. He was transferred to another jail, and brought back 12 hours later to sign a second statement, this one admitting both the murder and sexual assault—the element necessary to obtain a death sentence against him. This statement was signed forty-two hours after he was first arrested, during which time he saw neither an attorney nor his parents. With an IQ of 66 and possible brain damage, the 21-year-old Jurek was, in the words of the 5th Circuit Court of Appeals, “unable to recite the alphabet, to give change for a dollar, or to say how many weeks there are in a year or what month comes before November.” Psychologists testified at his federal habeas corpus hearing that Jurek’s mental limitations made him “particularly susceptible to the influence and suggestions of others.” Jurek had been arrested at 1 in the morning, taken from his home without shirt or shoes, and kept from both attorney and family. He was not brought before a magistrate for 21 hours. While police and prosecutors insisted that Jurek was well informed about his rights during the 42 hours before he signed a confession, the Court held, “In the case of a mentally handicapped defendant like Jurek, the actions of the police speak louder than their words… We believe that the confessions were extracted from Jurek under circumstances which render them involuntary.”