Killing Justice: Government Misconduct and the Death Penalty

Posted on Mar 01, 1992

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 11^th 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 11^th 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 5^th 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 5^th 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.”