Chicago Tribune

By STEVE MILLS, MAURICE POSSLEY and KEN ARMSTRONG
Tribune Staff Writers

First of two parts.

In July 1998, the State of Arkansas exe­cut­ed Wilburn Henderson for the mur­der and rob­bery of a fur­ni­ture-store own­er, even though a fed­er­al appeals court once ruled there was ​“sig­nif­i­cant doubt” about Henderson’s guilt and pow­er­ful evi­dence that the vic­tim’s hus­band was the killer.

In June 1987, the State of Louisiana exe­cut­ed Alvin R. Moore Jr. for mur­der and rape, even though defense lawyers did vir­tu­al­ly noth­ing to inves­ti­gate the pros­e­cu­tion’s evi­dence and the chair­man of the state par­don board believed Moore was innocent.

Last June, the State of Florida exe­cut­ed Bennie Demps for killing a prison inmate, even though the defense pro­duced evi­dence that the sole eye­wit­ness nev­er saw the mur­der and offi­cials did­n’t turn over a key report that could have under­cut the prosecution’s case.

The cas­es of these men are bound by a com­mon ele­ment — all went to their death accom­pa­nied by doubts about the evi­dence against them, while their claims of inno­cence received scant public attention.

Since 1976 when the death penal­ty was rein­stat­ed, 682 peo­ple have been exe­cut­ed in the United States, and most of them left behind lit­tle or no ques­tion of their guilt, accord­ing to a Tribune analy­sis. They admit­ted their crimes or were con­vict­ed with compelling evidence.

But some cas­es chal­lenge the premise that the crim­i­nal jus­tice sys­tem has so many safe­guards that no inno­cent per­son can pos­si­bly be executed.

At least 120 peo­ple went to the exe­cu­tion cham­ber pro­claim­ing their inno­cence, accord­ing to the Tribune analy­sis. In many of these cas­es, their guilt was clear. In oth­ers, how­ev­er, trou­bling ques­tions of innocence remain.

Some ver­dicts hinged on the kinds of evi­dence that have repeat­ed­ly helped con­vict the inno­cent, such as jail­house-infor­mant tes­ti­mo­ny, hyp­no­tized wit­ness­es and impre­cise foren­sic tests. Other cas­es were taint­ed by inept defense lawyers. Sometimes, sig­nif­i­cant evi­dence impeach­ing the cred­i­bil­i­ty of key pros­e­cu­tion wit­ness­es or impli­cat­ing alter­na­tive sus­pects did not emerge until after trial.

In at least a half dozen cas­es, one or more appel­late judges vot­ed to halt an exe­cu­tion while express­ing con­cern that the courts were send­ing an inno­cent per­son to the death chamber.

The advent of DNA test­ing, with its abil­i­ty to dis­cern guilt or inno­cence with sci­en­tif­ic exac­ti­tude, has helped focus scruti­ny on the flaws in the crim­i­nal jus­tice sys­tem. So have the exon­er­a­tions, with­in the past 30 years, of 90 peo­ple once sen­tenced to death.

Even as the pace of exe­cu­tions has been quick­ened by changes in the law designed to reduce appeals, the fear of exe­cut­ing an inno­cent defen­dant has moved to cen­ter stage in the debate over the death penal­ty. In Illinois, Gov. George Ryan cit­ed that chill­ing pos­si­bil­i­ty when he declared a statewide mora­to­ri­um this year.

The Tribune reviewed all 682 exe­cu­tion cas­es, try­ing to iso­late those con­vict­ed with dubi­ous evi­dence. That search turned up dozens of such cas­es, four of which became the focus of in-depth investigation.

The three cas­es pro­filed in this sto­ry illus­trate how a per­son can be exe­cut­ed even though evi­dence strong­ly points to anoth­er sus­pect; how a pros­e­cu­tion that appears open-and-shut can be any­thing but; and how a cast of unre­li­able wit­ness­es in a nether­world of crime can make the truth near­ly impos­si­ble to pin down.

Other exe­cut­ed inmates may have had stronger claims of inno­cence than Henderson, Moore and Demps. But these three reflect most of the cas­es in which defen­dants protest their inno­cence. The media paid lit­tle atten­tion to them, and no evi­dence is avail­able for DNA test­ing to con­clu­sive­ly deter­mine guilt or inno­cence. Whatever mys­ter­ies they present will likely endure.

The Tribune did not prove any of these defen­dants inno­cent. But its inves­ti­ga­tion shows how evi­dence that the jury relied on can unrav­el when sub­ject­ed to a more thorough examination.

In the United States, author­i­ties do lit­tle or noth­ing to learn whether an inno­cent per­son has been exe­cut­ed. In England, which abol­ished cap­i­tal pun­ish­ment in the 1960s, an inves­tiga­tive agency formed in 1996 does what offi­cials here refuse to do. The Criminal Cases Review Commission roots through old cas­es to deter­mine whether justice miscarried.

Based on the com­mis­sion’s work, an appeals court in England deter­mined that a Somali sea­man hanged in 1952 was inno­cent. And two months ago, in a dif­fer­ent case, an appeals court ordered that the body of a man hanged in 1962 be exhumed for DNA testing.

In Virginia, mean­while, author­i­ties incin­er­at­ed DNA evi­dence in one case where a per­son has been exe­cut­ed and are fight­ing efforts for DNA test­ing in another.

‘I am an innocent man’

A career crim­i­nal with a his­to­ry of men­tal ill­ness, Wilburn Henderson was con­vict­ed of the Nov. 26, 1980, mur­der of Willa Dean O’Neal, who owned a used-fur­ni­ture store in Ft. Smith, Ark., with her hus­band, Bob. O’Neal was shot, police said, in a rob­bery that net­ted $41.

The case against Henderson was hard­ly over­whelm­ing. In 1991, the 8th Circuit U.S. Court of Appeals in St. Louis named five oth­er pos­si­ble sus­pects, chief among them the vic­tim’s hus­band. The court gave Henderson a new tri­al, say­ing the evi­dence against oth­er sus­pects ​“cre­ates sig­nif­i­cant doubt about Henderson’s guilt.” But a sec­ond jury convicted him.

Police had lit­tle direct evi­dence link­ing Henderson to the mur­der. At the first tri­al, the pros­e­cu­tion said a yel­low piece of paper showed that Henderson had been in the fur­ni­ture store. The paper, found on the floor, had two phone num­bers that Henderson had been giv­en by a real estate agent. Henderson con­ced­ed the paper was his, but said he must have dropped it when he was in the store sev­er­al days before.

Jurors were told that, before the mur­der, Henderson obtained a gun from a pawn­shop and then pawned it back just after the mur­der. Ballistics tests, how­ev­er, were incon­clu­sive about whether that gun was used in the slaying.

And jurors heard about a long, ram­bling state­ment Henderson gave police after his arrest, say­ing anoth­er man com­mit­ted the crime and he just hap­pened to be in the store at the time.

Henderson lat­er recant­ed the state­ment, say­ing he gave it because he feared police would harm him. He said he was in anoth­er part of the state when O’Neal was killed, an ali­bi cor­rob­o­rat­ed by his wife.

Henderson’s first con­vic­tion was set aside when the appel­late court ruled that his lawyer failed to inves­ti­gate the oth­er sus­pects. The appeals court focused pri­mar­i­ly on Bob O’Neal.

O’Neal, accord­ing to inter­views and court records, was vio­lent and men­tal­ly unsta­ble. In 1985, five years after his wife was killed, he was com­mit­ted for almost a year to the Arkansas State Hospital for treat­ment of para­noid delu­sions. He died in 1992 of a heart attack.

O’Neal owned the type of gun — a .22-cal­iber pis­tol — that was used to shoot his wife. He told author­i­ties his gun was stolen after the mur­der, so it nev­er was tested.

Immediately after the mur­der, Willa Dean O’Neal’s daugh­ter and a step­daugh­ter — chil­dren from pre­vi­ous mar­riages — told police that they sus­pect­ed Bob O’Neal .

The daugh­ters said in inter­views with the Tribune that O’Neal had abused their moth­er and that she had begun to talk about divorc­ing him. Willa Dean O’Neal also had filed an alien­ation of affec­tion suit against a woman who was hav­ing an affair with her husband.

“My first instinct was that it was Bob,” step­daugh­ter Glenda Palmer said. ​“He was ver­bal­ly abu­sive, men­tal­ly abu­sive — just a mean man.”

According to court records and inter­views, Bob O’Neal, on the day before the mur­der, asked Willa Dean O’Neal’s daugh­ter, Glenda Fleetwood, where her moth­er want­ed to be buried. And on the morn­ing of the mur­der, he asked Fleetwood to break from the fam­i­ly’s rou­tine and work with him on a house tear­down instead of at the store with her mother.

That after­noon Bob O’Neal, Fleetwood and her hus­band stopped by the store before they went to sal­vage mate­ri­als from a house. Before they left, O’Neal went back inside briefly. He told Fleetwood and her hus­band to wait out­side, accord­ing to inter­views and court records. After he came back out, they left for the work site.

A few min­utes lat­er, O’Neal sent Fleetwood back to get a root beer from the store. When she returned with a soda and men­tioned she had bought it at anoth­er store, he insist­ed she return to the fam­i­ly busi­ness for elec­tri­cal tape, accord­ing to court records and interviews.

That was when she dis­cov­ered her moth­er’s body. Fleetwood sum­moned police and, accom­pa­nied by an offi­cer, went to tell O’Neal his wife was dead.

“When I came up with the police, he said, ​‘Somebody killed her, did­n’t they?’ ” Fleetwood told the Tribune.

That com­ment still both­ers Ron Fields, the for­mer Ft. Smith pros­e­cut­ing attor­ney who twice tried Henderson. ​“The trou­bling thing,” Fields said, ​“was him hav­ing this psy­chic state­ment — you know, know­ing she was already dead. O’Neal could­n’t ever explain it.”

Yet Fields remains cer­tain that Henderson killed Willa Dean O’Neal.

“If the police could have arrest­ed Bob O’Neal, they would have. Everybody want­ed him to be the mur­der­er,” said Fields, who called O’Neal a ​“brute” and said he was wide­ly dis­liked in town. ​“I would have loved to have con­vict­ed O’Neal. And I could have with­out break­ing a sweat. Problem was, he did­n’t do it. Henderson did it.”

Though oth­er sus­pects were giv­en lie-detec­tor tests, O’Neal was not, accord­ing to records.

At the tri­al, when the coro­ner tes­ti­fied that he believed Willa Dean O’Neal was shot in the head as she sat in a chair, Bob O’Neal whis­pered to a woman next to him, accord­ing to court records. ​“No, that’s not the way it was,” the woman quot­ed him as say­ing. ​“She dove out of the chair to miss the bullet.”

With Henderson on Death Row, O’Neal wrote a let­ter to the state insist­ing Henderson had been wrongfully convicted.

Before the sec­ond tri­al, Fields said he offered Henderson sev­er­al deals to plead guilty and avoid the death penal­ty. One offer would have allowed Henderson to apply imme­di­ate­ly for parole.

But Henderson, insist­ing on his inno­cence, want­ed to go to tri­al and be acquit­ted, said his lawyer, Gerald Coleman. ​“He nev­er wavered,” Coleman said.

The defense tried to point toward O’Neal as the killer at the sec­ond tri­al. But the pros­e­cu­tion offered a wit­ness whose tes­ti­mo­ny appeared to place O’Neal else­where at the time of the murder.

The wit­ness, Clarence Wilson, lived a block from the used-fur­ni­ture store and had vis­it­ed Willa Dean O’Neal the day of the killing.

He said that Bob O’Neal had left the store by the time he got there, and that Willa Dean O’Neal was still alive. That left a brief win­dow of time when Henderson could have com­mit­ted the crime — and mir­rored what Wilson told police initially.

At an ear­li­er hear­ing in fed­er­al court, how­ev­er, Wilson had tes­ti­fied dif­fer­ent­ly, say­ing he left the store while Bob O’Neal was still inside.

To impli­cate Henderson, the pros­e­cu­tion again used Henderson’s state­ment, the slip of paper and the infor­ma­tion about the gun. He was again convicted.

Henderson, 56, was exe­cut­ed by injec­tion on July 8, 1998. ​“I am an inno­cent man,” he told the war­den. ​“God for­give you for what you do.”

Cracks in a solid case

On June 8, 1987, in the hours before his exe­cu­tion, con­vict­ed mur­der­er Alvin R. Moore Jr. sat calm­ly in his cell in Louisiana’s max­i­mum-secu­ri­ty prison in Angola as his spir­i­tu­al advis­er opened a Bible and read from the Book of John.

With only min­utes left before prison guards would arrive to walk Moore to the death cham­ber, Rev. Roger Stinson fin­ished and closed the book, he recalled in an inter­view. ​“Now is the time to ask for for­give­ness,” Stinson said.

But as he had done every oth­er time, Moore just shook his head.

“I did­n’t do it,” Stinson recalled Moore say­ing. ​“I don’t hold any­thing against any­body — I just did­n’t do it. They can kill my body, but they can’t kill my soul.”

In leg irons and hand­cuffs, Moore, 27, was escort­ed to the elec­tric chair just after mid­night. Electrodes were attached to his left leg and shaved head. Minutes lat­er he was pronounced dead.

In the eyes of then-Bossier Parish District Atty. Henry Brown, the case against Moore was solid.

The vic­tim, JoAnn Wilson, 23, was the wife of a for­mer co-work­er of Moore’s, and police said she iden­ti­fied Moore as her attack­er in a dying declaration.

Moore was arrest­ed short­ly after the 1980 mur­der with a drop of blood on his pants. DNA test­ing was not yet avail­able, but tests showed it was Type O, the same as the vic­tim’s. Moore did not have Type O blood, the most com­mon of all blood types. The pants can no longer be found, accord­ing to Bossier City police and local officials.

A stereo and a plas­tic jug con­tain­ing $18.80 in pen­nies from Wilson’s home were found in Moore’s car. Two of Moore’s friends said he admit­ted to them that he killed the woman.

But a Tribune exam­i­na­tion shows that although the pros­e­cu­tion case had the pati­na of cer­tain­ty, beneath it lies a trou­bling mix of shift­ing accounts and ques­tions that were not raised at trial.

The two friends who impli­cat­ed Moore at tri­al recant­ed and now say he is innocent.

Also, a wit­ness nev­er inter­viewed by police told the Tribune that Moore’s car was parked near the Wilson house around dusk, sup­port­ing Moore’s claim that he was there before dark. Wilson’s call to police for help came at 9:35 p.m., about 40 min­utes after dark.

And the Tribune, through an open-records request, obtained police files that Moore’s appel­late attor­ney said nev­er were giv­en to him or the tri­al attor­ney. One report has the wom­an’s hus­band say­ing he saw his wife alive at home at 9 p.m.

This infor­ma­tion dif­fers from the hus­band’s tri­al tes­ti­mo­ny and could have been used by defense attor­neys to bol­ster Moore’s account that he left before the stab­bing, which the pros­e­cu­tion said occurred between 9 and 9:30 p.m. Under Louisiana law at the time, pros­e­cu­tors were not required to give police reports to defense lawyers unless they con­tained infor­ma­tion help­ing the defendant.

The night of July 9, 1980, was the third of what would be more than a week of con­sec­u­tive 100-degree days in Bossier City, a city of 50,000 in the north­west cor­ner of Louisiana.

Police were sent to JoAnn Wilson’s home after she tele­phoned and said, ​“Somebody stabbed me.” An offi­cer said that he broke down the door and that Wilson iden­ti­fied Moore in her dying breaths. After she was tak­en to the hos­pi­tal, her hus­band, Aron, then 19, drove up.

In an inter­view, he said the offi­cers asked if he knew some­one named Alvin and he gave them Moore’s name.

Moore, who had social­ized with the Wilsons, was in cus­tody in less than four hours. Questioned by police, Moore said he had met JoAnn Wilson through her hus­band. Moore said he and Aron Wilson had both worked in the main­te­nance depart­ment at the Veterans Administration Hospital in Bossier City and at times drove to work together.

Moore had a crim­i­nal record that includ­ed mis­de­meanor con­vic­tions for tak­ing a swing at a store own­er in a dis­pute over shoplift­ing and for hit­ting a jan­i­tor at school.

He told police that he and JoAnn Wilson were hav­ing an affair and she gave him mon­ey before he left. He iden­ti­fied Arthur Stewart and Dennis Sloan as being with him at the Wilson house, and both were arrest­ed the next morning.

In tape-record­ed state­ments to police, the two said they saw Moore hav­ing sex with the woman, but nev­er described it as a rape. Both said they took the stereo and jar of pen­nies while Moore was in the bedroom.

Both told police that they then went out­side, that Moore came out 5 min­utes lat­er and that as they drove over the Red River back to Shreveport, Moore told them he had stabbed Wilson to death. Within days all three were indict­ed on charges of mur­der, rape and aggra­vat­ed bur­glary. The state said it would seek the death penal­ty against them.

Moore’s father, Alvin Sr., a mechan­ic, hired Shreveport defense lawyer Stacey Freeman for $10,000 — equiv­a­lent to Alvin Moore Sr.‘s take-home pay for a year.

Freeman, a flam­boy­ant attor­ney who died in a car wreck in 1990, had a rep­u­ta­tion for rhetor­i­cal flour­ish­es in court and for cut­ting deals out of court. He inter­viewed few wit­ness­es before Moore’s tri­al and con­duct­ed no inves­ti­ga­tion of the pros­e­cu­tion case except to vis­it the crime scene, court records show.

Lawyers who lat­er rep­re­sent­ed Moore on appeal would crit­i­cize Freeman for fail­ing to ques­tion why no blood was found in Moore’s car even though the strug­gle in the Wilson home left blood spat­tered on the wall and floor in the liv­ing room and bed­room. Freeman nev­er exam­ined the car.

The appel­late lawyer thought it was remark­able so lit­tle blood was found on Moore’s pants and none was found in the car.

Defense lawyer Randall Fish, who was Freeman’s assis­tant at tri­al, said they both believed Moore was probably guilty.

“Stacey did­n’t han­dle it like a death penal­ty case should have been,” Fish said in an inter­view. ​“I was some­what embar­rassed at the time. He had no real strategy.”

On the day that jury selec­tion was to begin, District Atty. Brown announced that Stewart and Sloan had agreed to plead guilty to less­er charges and tes­ti­fy against Moore. Freeman was tak­en by surprise.

He had planned for all three men to be tried at once, which would have pre­vent­ed the pros­e­cu­tion from using Stewart and Sloan’s state­ments to police against Moore. Freeman demand­ed a con­tin­u­ance, but the judge refused.

Freeman petu­lant­ly told the judge: ​“I’m not going to announce ready for tri­al, your hon­or. I’m not ready. I’m just going to sit here and let her go.”

At tri­al, Sloan and Stewart both tes­ti­fied that Moore told them, ​“I stabbed the bitch nine times.” Stewart told the jury that while stand­ing out­side, he heard a woman scream in the house and Moore came out with a knife in his hand.

Bossier City Police Officer Bill Fields tes­ti­fied that he and fel­low offi­cer Matthew Nycum were the first police to arrive and found Wilson chok­ing and gasp­ing, bleed­ing from 13 stab wounds.

“I asked her who stabbed her,” Fields tes­ti­fied. ​“She told me Elvin. I asked her again to repeat it and she said Elvin. I asked her a third time and she told me Elvin. I asked her if she knew the sub­ject. She told me that he used to live down the street and he was black. She repeat­ed that twice.”

Moore, who was black, tes­ti­fied that he had con­sen­su­al sex that night with Wilson, who was white. He denied killing her.

The all-white jury returned its guilty ver­dict in 40 min­utes. During the penal­ty phase, Freeman called not a sin­gle wit­ness to speak on Moore’s behalf. His pre­sen­ta­tion was 2 min­utes and 15 sec­onds long, and he nev­er asked the jury to spare his clien­t’s life. Freeman lat­er said he would have felt ​“sil­ly” ask­ing the jury to spare Moore.

Stewart and Sloan spent near­ly 20 years in prison and now live in Shreveport, work­ing togeth­er at a body shop. Both men, in inter­views with the Tribune, say that they impli­cat­ed Moore because they believed the police already had enough evi­dence to con­vict him and that they lied on the stand because they feared execution.

“I did­n’t want the death penal­ty,” Stewart said. ​“When I said I heard a lady scream — that was­n’t true. When I said I saw him come out with a knife — that was­n’t true either. I’m not proud of it. I thought I need­ed to tell what the police want­ed. … I made up a story.”

At a 1986 clemen­cy hear­ing for Moore, Stewart and Sloan recant­ed in sworn affi­davits. They said that the vic­tim was alive when they left with Moore and that they did not hear Moore say he stabbed her, accord­ing to a news­pa­per account of the hear­ing and interviews.

“I saw her in the door­way,” Sloan said in a recent inter­view. ​“She looked fine to me.”

But Stewart, in an inter­view with the Tribune, has altered his account again. Though he main­tains he nev­er saw Moore with a knife or heard the woman scream, he said his state­ment in the affi­davit that he did not hear Moore say he stabbed the woman was false.

“I did hear him say that,” Stewart said. ​“But I nev­er believed it. I saw her close the front door. I did­n’t think any­thing was wrong.”

Stewart said that for the clemen­cy hear­ing, he would have said any­thing to spare Moore’s life. ​“I lied about some things,” he said. ​“But now, I don’t think he did it.”

Nycum, now the gen­er­al man­ag­er for a Bossier City car deal­er, said in an inter­view that he was an aux­il­iary offi­cer in 1980 when he accom­pa­nied Officer Fields to the Wilson home. He said he nev­er heard JoAnn Wilson make the state­ment that Fields claimed she uttered in her dying breath.

“She was inco­her­ent, spoke in a heavy Southern accent and said what sound­ed to me like ​‘ele­phant,’ ” Nycum said. ​“I nev­er heard her say, ​‘Alvin did it’ or ​‘Elvin did it.’ ”

Fields, in an inter­view, said, ​“I know what I heard. I don’t want to know anything else.”

Former pros­e­cu­tor Brown, now a state appel­late judge, said Moore’s ver­sion of events was ​“ridicu­lous” and Stewart and Sloan’s recan­ta­tions were equally unbelievable.

The time line of the evening was not an issue at Moore’s tri­al, but an analy­sis of police reports, court tran­scripts, fire depart­ment records and inter­views sug­gests it could have been if defense attor­neys had the doc­u­ments lat­er obtained by the Tribune.

There is no offi­cial time-stamped record of when JoAnn Wilson’s emer­gency call came to the Police Department that night, but a dis­patch­er said at Moore’s tri­al that he took the call at 9:35 p.m.

After being arrest­ed, Stewart told police that he, Sloan and Moore arrived ​“about night­fall” at the Wilson home. Sloan said it was ​“about 7 or 8:30.”

Stewart told the Tribune: ​“It was day­light, get­ting to sun­down. It was­n’t dark. You could still see. It was still light when we left.”

Robert Temple, the Wilsons’ land­lord, told the Tribune that on the evening of the mur­der, he was work­ing in the area and drove by the Wilson home. ​“I saw Alvin Moore’s car out there,” Temple said. ​“It was day­light, around dusk.”

Records at the U.S. Naval Observatory show that sun­down that night was at 8:25 p.m. The peri­od between the moment when the top of the sun dips below the hori­zon and dark­ness is called ​“civ­il twi­light,” end­ing when the sun has gone about 6 degrees below the hori­zon. Civil twi­light end­ed and dark­ness began that night at 8:53 p.m.

Bossier City detec­tive reports said Aron Wilson was not at the home when police arrived, but drove up after his wife had been tak­en to the hos­pi­tal. He told police he had left home ear­li­er in the evening to work on the car of Perry Goodwin, who lived about a mile away, the report said.

The report quot­ed Wilson as say­ing he came home at 9 p.m. to get a tool and his wife was alive. Goodwin told police that Wilson went home at 9 and returned about 10 min­utes lat­er. On the wit­ness stand, how­ev­er, Wilson tes­ti­fied he was­n’t home at 9 that night.

In an inter­view at a restau­rant near his home in Flint, Mich., Aron Wilson was shown the police report. ​“I came home at 7:30 that night,” he said. ​“That’s wrong.”

Asked about Goodwin’s state­ment, Wilson said Goodwin also was mistaken.

After Moore’s con­vic­tion, the ques­tion of his inno­cence fell to the side as the case was appealed and upheld by the Louisiana Supreme Court. When attor­neys Rebecca Hudsmith and Wellborn Jack Jr. vol­un­teered to han­dle his fed­er­al appeal in 1983, they focused on the issue of inad­e­quate legal rep­re­sen­ta­tion at tri­al instead of chal­leng­ing his guilt.

“It looked like we had a real good chance of win­ning on the attor­ney com­pe­tence issue,” Jack said. ​“And if we could get a new tri­al for Alvin, then we could turn our atten­tion to the evidence.”

That strat­e­gy almost saved Moore’s life. U.S. District Judge Tom Stagg in 1984 vacat­ed Moore’s death sen­tence, cit­ing Freeman’s poor lawyer­ing, and ordered a new sen­tenc­ing hear­ing. But before that hear­ing could be held, the 5th Circuit U.S. Court of Appeals in New Orleans over­ruled the low­er court deci­sion and rein­stat­ed Moore’s death sentence.

It was not until a last-ditch appeal for clemen­cy before the Louisiana Pardon Board that a ques­tion about the pros­e­cu­tion’s evi­dence was raised when Stewart and Sloan gave their sworn affidavits.

Howard Marsellus, chair­man of the par­don board at the hear­ing, said he believed Moore was inno­cent. Marsellus, who lat­er was sent to prison for tak­ing a bribe to vote for clemen­cy in an unre­lat­ed case, said he thought Moore nev­er had a chance.

“We went back to delib­er­ate,” he said. ​“I said that from the time the cops arrived on the scene, that boy was dead. I said, ​‘I’m not vot­ing to kill that boy.’ ”

Moore lost his bid for clemen­cy, which would have com­mut­ed his sen­tence to life in prison, by a 3 – 2 vote.

Death in a Florida prison

Bennie Demps, 49, was exe­cut­ed last June for the 1976 mur­der of a fel­low inmate at Florida State Prison. But ask the inves­ti­ga­tor on the case just how the mur­der hap­pened and who was involved, and his answer is that he does­n’t know for sure.

“When you have a killing inside a prison, nobody ever knows what hap­pened,” Wiley Clark, who inves­ti­gat­ed the stab­bing for the Bradford County state attor­ney’s office, said in an inter­view. ​“You’re nev­er going to fig­ure out the real truth.”

Like most killings behind the con­crete walls and razor wire of a prison, the mur­der of Alfred Sturgis involved char­ac­ters so seedy that truth and sym­pa­thy were equal­ly dif­fi­cult to find.

When Demps was accused, he, as well as the vic­tim and the key wit­ness, were all con­vict­ed mur­der­ers. Years ear­li­er, Demps had been sen­tenced to death for a dou­ble mur­der. But he escaped exe­cu­tion when, in 1972, the U.S. Supreme Court declared cap­i­tal pun­ish­ment uncon­sti­tu­tion­al because it was being car­ried out in an arbi­trary man­ner. Demps’ death sen­tence was com­mut­ed to life.

Until the day he died, Demps claimed prison offi­cials framed him for the Sturgis killing because he had escaped that ear­li­er death sentence.

There was evi­dence that would have helped Demps, but author­i­ties did not turn it over to Demps’ lawyer. That includ­ed a report that did not sur­face until 20 years after the mur­der — one pur­port­ing to describe the dying inmate’s iden­ti­fi­ca­tion of his killers. But that report does not men­tion Demps at all.

Prosecutors said at tri­al that before Sturgis bled to death, he named Demps, James Jackson and Harry Mungin as his assailants. Larry Hathaway, an inmate serv­ing a 99-year sen­tence for mur­der, became a pros­e­cu­tion wit­ness after he report­ed see­ing Jackson stab Sturgis with a shank, while Demps held down Sturgis and Mungin act­ed as lookout.

Clark, a for­mer police offi­cer, said he was loath to trust eye­wit­ness tes­ti­mo­ny, and was par­tic­u­lar­ly sus­pi­cious of Hathaway, whom prison med­ical records described as ​“extreme­ly manip­u­la­tive” and hav­ing a ​“per­son­al­i­ty disorder.”

Before the tri­al, Hathaway told an attor­ney for a pris­on­ers rights group that he did not wit­ness the Sturgis mur­der. At tri­al he insist­ed he did. Then after the tri­al, three inmates came for­ward to say that Hathaway was nowhere near the scene of the stabbing.

Finally, in 1994, Hathaway told an inves­ti­ga­tor for Demps’ lawyers that he had lied at trial.

There was no phys­i­cal evi­dence link­ing Demps to the mur­der, so pros­e­cu­tors relied large­ly on the tes­ti­mo­ny of Hathaway and two prison guards, A.V. Rhoden and Hershel Wilson. The guards tes­ti­fied that Sturgis named Demps as one of his three attackers.

“I told just what Sturgis told me. Nothing else,” Rhoden told the Tribune.

The three inmates were con­vict­ed in 1978 and pros­e­cu­tors sought the death penal­ty for all three. The jury rec­om­mend­ed death for Demps and Jackson and life for Mungin.

Even though Demps was not the alleged attack­er in the stab­bing, the judge gave him death, cit­ing his con­vic­tions for the two pre­vi­ous mur­ders. He gave Jackson and Mungin life in prison. Interviews with Jackson and Mungin could not be arranged.

Demps’ attor­neys nev­er received a let­ter writ­ten before the tri­al by Bill Beardsley, the prison offi­cial who over­saw the mur­der inves­ti­ga­tion. The let­ter crit­i­cized Hathaway for his ​“fab­ri­ca­tion” in anoth­er inves­ti­ga­tion and could have been used by Demps’ lawyers to ques­tion Hathaway’s credibility.

Lawyers also were nev­er giv­en a copy of a one-page report from chief inspec­tor Cecil Sewell that was writ­ten the day after Sturgis died and sent to Secretary of Corrections Louie Wainwright. It said that ​“before Sturgis died, he named James Jackson, B/​M, #029667, as his assailant.” Demps and Mungin are not named in the report, which sur­faced 20 years after the murder.

In an inter­view with the Tribune, Wainwright, who retired in 1986 after 24 years as sec­re­tary, said the report was meant to apprise him, in detail, of inci­dents at the state’s pris­ons. ​“It should have been fair­ly detailed,” Wainwright said. ​“It should have had all three inmates.”

Demps’ attor­neys also argued on appeal that Hathaway, for his tes­ti­mo­ny, received undis­closed ben­e­fits that would have pro­vid­ed him with ample incen­tive to lie.

To but­tress their argu­ment, they cit­ed a let­ter Beardsley wrote a year after Demps was sen­tenced to death. That let­ter sup­port­ed ​“spe­cial parole con­sid­er­a­tion” for Hathaway, even though he had served only four years of his 99-year sen­tence. Beardsley, who described Hathaway as an infor­mant and crit­i­cal wit­ness, made anoth­er parole request for Hathaway in 1983, accord­ing to his letters.

Now retired, Beardsley said those let­ters were not tied to a deal for Hathaway’s testimony.

The inves­ti­ga­tion of the mur­der of prison inmate Leroy Colbroth, sev­en months after the Sturgis killing, also pro­duced infor­ma­tion that could have helped Demps. That, too, was kept from Demps’ lawyers.

Colbroth, who was known as ​“99” because he was serv­ing a 99-year term for armed rob­bery, ran gam­bling, loan-shark­ing and drug oper­a­tions in the prison, accord­ing to his prison records. Before he was killed, inves­ti­ga­tors had iden­ti­fied him as a lead­ing sus­pect in two prison stab­bings, one of them fatal, the records show.

During the inves­ti­ga­tion of Colbroth’s mur­der, sev­er­al inmates swore in depo­si­tions that Colbroth was killed because he had stabbed Sturgis. Other inmates lat­er said that they saw Colbroth kill Sturgis or that he admit­ted killing him.

Some of those inmates want­ed to help Demps, but did not, say­ing in sworn affi­davits that prison offi­cials either threat­ened them with ret­ri­bu­tion if they tes­ti­fied or offered incen­tives, such as trans­fers or short­er sen­tences, for refusing.

The two inmates charged with killing Colbroth were acquitted.

Thomas Elwell, who pros­e­cut­ed Demps and Colbroth’s alleged assailants, declined to be inter­viewed unless he was paid. He became a judge in Gainesville but resigned in 1992 amid an inves­ti­ga­tion into alle­ga­tions that he removed price tags from mer­chan­dise at a Pic ​‘n Save depart­ment store and replaced them with low­er price tags. He was not charged.

Since he has been in pri­vate prac­tice, he has been sus­pend­ed four times by the state bar for vio­lat­ing con­flict of inter­est rules and for finan­cial irreg­u­lar­i­ties, accord­ing to disciplinary records.

Demps’ appel­late lawyer, Bill Salmon, sought a new tri­al from the Florida Supreme Court. But the court refused, say­ing that although pros­e­cu­tors per­haps should have turned over the chief inspec­tor’s report, it did not nec­es­sar­i­ly clear Demps. ​“Assailant,” the court said, might have referred only to Jackson, because he was iden­ti­fied as the inmate who wield­ed the shank.

On the day Demps was exe­cut­ed, the win­dow to the exe­cu­tion cham­ber opened to reveal the con­demned man lying on the gur­ney with a white sheet draped over his chest and legs. Angrily, he chas­tised offi­cials who had cut deeply into his leg to find a vein suit­able to car­ry the lethal injection.

“They butchered me back there,” Demps declared to wit­ness­es. ​“This is not an exe­cu­tion, this is mur­der. I am an innocent man.”

Gerald Kogan, who was chief jus­tice of the Florida Supreme Court, found the case trou­bling, even though he did not vote to give Demps a new trial.

“I had grave doubts about Bennie Demps,” said Kogan, now retired. The case ​“keeps com­ing back and back and noth­ing new is raised. But you can’t do any­thing after a while.”