The American murder trial as a metaphor for the nation as a whole has become, in recent years, almost a cliché. Our best writers have seized upon it as a vehicle of self-expression. Academics argue over its myths and realities. The producers of TV series capitalize on its imagery, earning the networks heady profits second only to those raked in by Oprah. At some point or another, almost every American, rich or poor, white or black, has confronted the American justice system and its complexities—with pride, skepticism, awe, revulsion, or a combination of all these.
I began this project with the assumption that the Christa Worthington murder would be the basis for my “trial book” (every journalist wants to do a trial book), that it would take only 18 months to complete, and that my involvement as the author would be no different from my involvement in the half-dozen other books I’ve written, even though I’d known Christa Worthington, my neighbor in the town of Truro on the tip of Cape Cod, Massachusetts, for more than a dozen years.
Like so many assumptions, these proved false, largely because of what I found while digging into the crime, its investigation by the Massachusetts State Police, and the trial I’d planned to cover in the style of the late Dominick Dunne, notebook in hand, memorializing courtroom events in a so-called objective manner. Instead, I wound up lending assistance to the defense team and soon found myself in a great deal of trouble—specifically (not to say surreally), hauled into court, where I was indicted on a series of felonies after voicing my belief, both in print and as a guest commentator on Court TV, that the Cape and Islands district attorney in charge of the case (and also the case against me) was an ambitious, racially insensitive politico who’d cut corners in the courtroom and during the three and a half years he’d supervised the police investigation. My run-in with the lawman, however, is a story for another time.
I began the project in spring 2005, shortly after the arrest of Christopher McCowen, 34, a black trashman with a borderline IQ. A layman, I lacked any close familiarity with the law or the courts. It did not take long to learn that the typical criminal trial is a deeply flawed process. Narrative and storytelling, not evidence, determine many a trial’s outcome. The art of jury selection—voir dire, as it is called—is also critical, more so than most people would imagine. Experienced practitioners know that jurors, ordinary Americans of ordinary intelligence, have a way, as Harper Lee put it, of “carrying their resentments right into the jury box.” The best trial lawyers also know that judges, the vast majority of whom are white, must be educated as much as possible, within the limits of protocol, when the defendant is black; the court should never be allowed to sidestep the issue of race, although most judges will try.
None of this should come as a surprise. The principal figures in every jury trial are ego-driven mortals, each with his own agenda: DAs want to win in order to get reelected (and perhaps slake a native bloodlust); expert defense lawyers work out authority issues while running high-profile, publicity-generating cases; and, again, jurors are not self-sacrificing citizens driven by common sense most will vote in a way that reinforces who they are, what they believe in, what they value the most.
The jury room is a stage, a pulpit, as the Oscar-nominated film 12 Angry Men illustrated more than 50 years ago. Even judges with tenured appointments are part of this food chain. Bound by precedent, they rule on evidentiary questions with the record ever in mind, and those who aspire to an appellate bench or to political office have every reason to interpret the facts of the case narrowly, to preserve the status quo. Even when their choices are blatant and obvious, judges are the most protected element in our court system, rarely questioned.
There are, of course, dedicated lawyers and truly disinterested jurists, just as there are prosecutors who can see their way to dropping a case against a defendant wrongly charged. But recent history has forced such folks to work overtime. The Vietnam War, the Wall Street financial scandals originating in the early ’80s, the callow adventurism of the Bushes, Sr. and Jr., at home and abroad (made worse by the mainstream press’s failure to expose them), all have had a lasting effect. Lying, bending the rules, and a growing readiness to abandon constitutional safeguards have invaded the popular culture and courts alike, sanctioned by the events of September 11, 2001, and their progeny.
This is no small matter, obviously. The normally staid New YorkTimes has pointed out that the Federal Bureau of Investigation, the Office of Homeland Security, and other federal agencies have improperly obtained more than 8,500 telephone accounts from 2003 to 2006 without following legal procedures. Next to the financial sector, local representatives of the law-enforcement community have most taken this new value system to heart. “Testilying,” for example, has become common, police officers bending the truth while on the witness stand. Another form of police misconduct is the withholding of exculpatory evidence; the ACLU, the Innocence Project in New York City, the Center on Wrongful Convictions at Northwestern University, and a rash of appellate court rulings across the country have shown that hundreds of criminal defendants have been set up by less-than honest cops. Equally alarming, the local courts have been loath to blow the whistle during this time of orange alerts and nationwide anxiety. Better we overlook the bad apples than risk besmirching the much-needed good guys.
Of course, there is another view. Conservatives such as Sean Hannity will argue that there is nothing new here, that what’s happening is just a Hobbist reassertion of the human condition, and, yes, we should all feel the more blessed for it. But before jumping into this little book of mine, I’d scarcely realized how bad, how dark, things had gotten on Cape Cod, my childhood summer home of art openings and clam bakes, until I had read through the Massachusetts State Police file, case number 02-102-0900-0007, Comm. v. McCowen; consisting of forensics, criminalistics, and surveillance reports, DNA screenings, polygraph results, police interviews, and internal memos.
The file was a journalistic gold mine, as were the minutes of the grand-jury proceedings since what both showed was a miasma of law enforcement shortcuts running through the case like mold on a particularly smelly blue cheese. The local legal community had become so ingrown, so incestuous, that the courts looked upon the cops as family, and given the pressure on police to find Christa’s killer, it seemed nobody and nothing was safe, least of all the Constitution.
It took no genius to see this to ferret it out since much of what the DA and the cops did was right out in the open. The official file showed, for example, that my own phone records had been grabbed without a subpoena or court order the day after Christa’s body was found; my wife, who is not a professional journalist protected as I am by the First Amendment, had her records pried out of Verizon and during the investigation the records of at least 45 others were obtained via demand letters to a compliant Verizon, as well.
My DNA was snatched, along with the DNA of a half-dozen other locals, swabbed from discarded cigarette butts and cast-off water bottles. We were not suspects but, rather, “persons of interest,” meaning that police felt no compunction about violating our privacy even as they couldn’t determine that any one of us was materially relevant to their probe, either.
If pressed, these investigators would probably defend their actions on the grounds of thoroughness. But that argument is limited. Time and again, while conducting my interviews, I heard locals speak of being confronted by plainclothes detectives banging on their doors, unannounced, at 9:30 p.m., which on off-season Cape Cod is the equivalent of midnight. One suspect, Christa’s onetime boyfriend Tim Arnold, was grilled for several hours while confined at a Cape-area psychiatric facility, in open defiance of his lawyer’s insistence that interviews be cleared in advance. Arnold was sedated at the time but that made no difference to detectives, who, apparently failed to consider that the Effexor and amnesia-inducing lorazepam Arnold was taking might render their truth-gathering efforts less than reliable, at best.
Then, too, on the third anniversary of Christa Worthington’s death, the frustrated investigators, after going to the FBI for pointers, conducted a DNA sweep of our sleepy little town of Truro wherein they intimidated reluctant donors by threatening to record license plate numbers on a “special list.” The ACLU and the Boston Globe called the sweep something just short of a fascist outrage; the story made USA Today and the New York Times, but what the public never learned was that the majority of the 150-odd swabs collected were never even turned in for analysis. Rather, the samples languished in DA Michael O’Keefe’s office until Christopher McCowen was arrested in April 2005, four months after the sweep, more than a year after McCowen’s DNA was collected. It, too, had sat on the shelf in O’Keefe’s corner office while Truro trembled.
In addition, the director of the Massachusetts State Police (MSP) crime lab was discharged after more than 25 DNA samples were misfiled, while five of the 13 fingerprints lifted from the Truro murder scene turned out to belong to local police and EMTs. Inexplicably, key evidence, including fibers and vaginal combings, were never tested.
But disorganization, incompetence, and a corrupted crime scene were business as usual. An MSP report dated December 10, 2002, “Blood Sample of Anthony R. Smith for Comparison in Worthington,” documented the nadir of police misconduct. Here, lead detective Christopher Mason reported that he’d requisitioned two vials of Smith’s blood from the coroner’s office and delivered it to the crime lab for analysis, without, it appears, a court order or family permission.
Anthony Smith was the son of a stubborn defense witness who would insist to the end that he’d seen a truck or van speeding out of Christa’s driveway the day before her body was found; the driver was white, not black like Christopher McCowen. Mason was covering all bases, as he usually did, since he is a very thorough man. But he ran roughshod over the Fourth Amendment in the process, displaying utter insensitivity to a parent’s grief. Smith, who lived with his father, the witness, had recently taken his own life.
The rationale for this official act of quasi-vampirism made it worse, however, for the cops were relying on an unverified telephone hotline tip that Smith “lived in the area of the murder and perhaps committed suicide after committing the murder,” according to Mason’s report of May 16, 2003.
Nothing tied the young man to the murder. Nothing. But beyond the blindness of such efforts, the file also revealed a world of drug-dealer snitches protected by police, and a particularly self-invested DA. The new off-season Cape Cod was made up of single welfare mothers, wild-eyed alcoholic wife abusers, “wash-ashore” laborers living on food stamps while waiting for the tourist restaurants to reopen in May, and an ever-growing horde of teenagers dragged into court up and down the Cape, their OxyContin-fueled lifestyles combining with post-9/11 jitters to empower the cops like nothing anyone had ever seen before.
It was after plowing through the official file that I began interviewing people on both sides of the law. Almost all interviews were face-to-face, not on the telephone, and often the drama that accompanied these encounters were as illuminating as the words, for once again I found myself on a Cape Cod I’d only heard about. The former director of the Cape NAACP, for example, insisted on coming to my house for our meeting, then excused himself when it was only mid-afternoon, apologizing that it wasn’t wise for a lone black man to drive the Truro-Orleans stretch of Route 6, the “gauntlet,” as he put it, after dark.
Soon, a white drug dealer, a Truro-Wellfleet townie with deep local connections, told me that at night he always drove with his interior lights on. Why? So the “federales,” he explained, would know who was behind the wheel, not pull him over. Combined with the NAACP man’s behavior, this was enough to remind me that the Cape is only an hour and a half’s drive from Charlestown, home of Boston’s infamous busing crisis, and that the situation wasn’t helped any by the fact that African-Americans make up only 1.6 percent of the Cape’s population, but a miniscule fraction of the 13.5 percent national average.
My interviews continued right through the trial, which was a David-and-Goliath proposition from the start. The DA threw his full staff onto the case the way Rommel used his tanks to overrun France. Day after day, a dozen or more of his lawyers, researchers, interns, and secretaries filled the lawyers’ dock on the left side of the courtroom, just as the Commonwealth had the resources of the State Police and state crime lab.
Attorney Robert George, by contrast, was flying solo. George fought the good fight, but in the end, he lost. Most reporters covering the trial felt his client deserved a hung jury, at least; according to nearly 40 percent of those responding to a Cape Cod Times poll conducted after the verdict, the defendant’s color made the difference.
It is an open question whether any defense lawyer—even Clarence Darrow or Perry Mason—could have won the case in that courtroom, with that judge, that jury.
I openly sided with the defense—supplying research, feedback, and editorial contributions to briefs and motions—out of the belief that the trial’s racist subtext was substantive and real. As I told the BostonGlobe, it would take moral impotence to miss prosecutor Robert Welsh’s strategy: playing to jurors’ biases while simultaneously insisting that race had nothing to do with the proceedings.
A black garbageman charged with the rape and murder of a white Vassar grad? And on traditionally conservative Cape Cod where even JFK had not gotten the local vote? Whom did Welsh think he was fooling?
Republican governor Mitt Romney’s announcement of prosecutor Welsh’s appointment to a district court judgeship at the start of deliberations was another not so small outrage. Few people on Cape Cod, white or black, did not know that during the past century, local judgeships had been held by the prosecutor’s great-grandfather, grandfather, and father. Still another Welsh ran the court clerk’s office in the Cape’s outermost district court. The nepotism was offensive, but Romney’s timing was worse.
Welsh, with his Plain Jane suits and humorless, rubbery face, was a Babbitt ready-made for skewering,a smug Tea Party Republican who thought he could get away with anything. I do not exaggerate. Halfway through trial, our prosecutor cum newly appointed judge had the audacity to claim he did not to have the probation file on one of his major witnesses. He did have that file; he had to. Yet he got away with his lie, as has been documented in the defense’s brief to the Supreme Judicial Court, the state’s highest tribunal.
Given the importance of injecting some balance into all of this, I also made it a point to share all research with the court and the prosecution. This was de rigueur. One of George’s motions, charging the prosecution with withholding exculpatory evidence, announced my contributions in its opening pages in order to send the message that nothing underhanded was going on. Even so, a Harvard journalism professor queried by the Boston Globe alleged that my “loss of objectivity” called into question anything I might write about the trial, which,then as now, I answer by saying that the prof didn’t recognize alternative reportorial strategies.
Aside from the access it got me, my alignment with the defense became so widely known that even a year after the verdict I was sought out by one juror’s relative, a black woman in her seventies, who claimed that her nephew had been racist since the age of 15 and lied during the jury-selection process meant to sift out bias. On this, I notified the court, and the woman was called as a witness at a post-verdict hearing.
The disparity between the prosecution and defense arsenals was a constant, and if my participation would help level the playing field, so be it. Black people too often get screwed in America, and on that issue I have never been, nor will I ever be, prepared to brook debate even when it’s coming from Harvard.
Did all of this affect my ability to report the trial fairly? Unlikely. My involvement provided a unique vantage point, not to say access to materials that I would not otherwise have had. Robert George and I talked daily during the trial process and then throughout three years of postverdict motions and appeals.
Did I talk to the other side? After speaking with Michael O’Keefe before trial, I then approached the DA, Welsh, and lead detectives on multiple occasions; I was rebuffed, orally and in writing, as were all other reporters I know of who requested one-on-ones with the prosecutor. This is the DA who storms out of press conferences, snapping, “You must be kidding” or “Grow up,” when he doesn’t like reporters’ questions.
Some will fault George’s defense as understaffed, sometimes under researched, and underfunded, and perhaps worse yet for my involvement. I say that without Robert George’s energy and commitment, the sheer loudness of his pugnaciousness, Chris McCowen would have disappeared like so many other uneducated, marginally functioning defendants in courts across the country. McCowen would have been swept through the process with no one the wiser, another casualty of our lopsided justice system.
Innocent or guilty, the vast majority of indigent defendants do suffer that fate. The corridors of local courthouses across the country are filled with attorneys looking for cases, ready to be court-appointed and step in at a moment’s notice. Their prep work is nil. They cop plea bargains. They neither test the system nor challenge prosecutors nor protect the rights of the individuals they claim to defend.
McCowen’s trial was expected to take two weeks, not five. Day to day, George stuck, a high-priced criminal defense lawyer stepping into William Kunstler or Charlie Garry country. He didn’t have the politics (perhaps a plus), but he had something out of the ordinary, something genuine, even if he overly enjoyed being surrounded by reporters. Maybe he realized that this was the case of his career, that rare shot that lawyers, like athletes, get but once or twice in a lifetime. Or maybe it was nothing more than the sentiment he expressed after the verdict, while wrestling with whether he could afford to take on the appeal. “Now my kids won’t think I just represent bad guys,” he said. “Maybe they’ll understand that defense lawyers can do something that’s useful and important.”
His work was useful. The system I’d observed over the previous months was too ready to do what it shouldn’t. George challenged that, stamped his foot. His resolve had as much to do with prosecutorial irregularities and bad calls from the bench as with McCowen’s innocence or guilt, as well it should. That’s what we have defense lawyers for.
Readers will draw their own conclusions. My account of the trial relies on the official transcript of 3,878 pages. I’ve condensed that record, using ellipses and paraphrasing, ever mindful of remaining faithful to the content of all testimony, sidebar exchanges, and rulings from the bench. Readability was a major consideration, but I consciously erred on the side of inclusiveness and accuracy.
Much of the information in this book is based on my interviews, many done “on background” for reasons already acknowledged. Granted, this is not the best arrangement. But such confidentiality was necessary to secure the subjects’ cooperation, in some instances because of the menacing air surrounding the case. In verifying key matters, especially criminal activities or persons and events impinging directly on the murder, I insisted on at least two, preferably three, sources, as well as confirming documents. Material gleaned from MSP interviews and incident reports was always checked.
Some potential sources repeatedly refused to talk even after a year or two of my nagging, worried that the murderer was still “out there.” But many also feared local police in Truro, Wellfleet, and Eastham, who wield the power to inflict a drunk-driving bust or do a pot search at two a.m. So real was the fear factor that several sources even called me after interviews, wanting to retract their comments. Not once in my career have I had to fall back on anonymous sourcing as I have for this narrative.
On the other hand not all was so grim. A number of individuals stepped forward unsolicited, among them, a former assistant district attorney, now in private practice, who introduced himself on the checkout line at a local supermarket; his information proved invaluable to my understanding of the personalities and social world of the Cape’s court system and law-enforcement agencies.
Another ex‑prosecutor explained District Attorney Michael O’Keefe’s foibles—his heavy drinking, priapic tendencies, blind ambition, and racial insensitivity. Not so surprising was the help I received from McCowen’s girlfriend, Catherine Cisneros, and from his father and stepmother, who provided the defendant’s childhood medical records and other documents, in addition to explaining what life was like for a black child growing up in rural southwestern Oklahoma.
Other sources were people whose trust stemmed from my book Ptown: Art, Sex, and Money on the Outer Cape, which does not shy away from discussing the ongoing class war between locals and wealthy summer visitors. Happily, a number of these individuals worked in local town offices and in district and superior courts; they guided me to records buried in dusty files and offered sub-rosa tips about local officials. One Truro selectman, for example, was quietly shouldering two OUI convictions; a third would land him in jail, my tipster pointed out, explaining “why the bastard keeps backing the police.”
By the time I finished writing, the core documentation for this project filled sixteen three-ring binders and seven file boxes, not counting interview transcript and the trial record. Unlike the Massachusetts State Police and the FBI, I used a cassette recorder to memorialize my 200 or so interviews. I also filled nine of my beloved French Rhodia notepads inside the courtroom.
In the end, I still remained puzzled, and called several out-of-town friends, well-known lawyers and one of the most celebrated PIs in the country, a man who’d worked with the defense for the Oklahoma bomber and John Walker Lindh, the California youth who joined the Taliban. I did this for a reality check. Was I exaggerating about the cops, who were, after all, trying to nab a killer? Was the misconduct of the prosecution really as egregious as I was saying? The collective reply was, “It’s very bad. These guys were out of control. Had your man been tried in Boston, even Dayton, Ohio, it probably would have turned out differently.”
None felt it necessary to belabor the fact of race, though all alluded to it. Again, readers will draw their own conclusions. New developments in the McCowen case will unfold within the year. The account that follows is based on the best information and documentation available now.
Chapter One
The Murder
Like any other bleak winter day, Sunday, January 6, 2002, was gray and windy, the metallic smell of rain heavy in the air. Cape Cod knows only three colors in winter: gray, darker gray, and the muted green of omnipresent scrub pines, somber hues that only add to the depression that engulfs many locals during this phase of the year. As Henry David Thoreau once observed, “It is a wild place, and there is no flattery in it.”
Just outside the kitchen of the bungalow at 50 Depot Road, Christa Worthington’s green Ford Escort was parked, as usual, at the top of her long driveway. A plastic Little Tikes car belonging to her daughter, Ava, was not far away, waiting to be used once more come spring.
The telltales were barely noticeable at first glance: on the flagstone walkway curving back to the house lay a barrette, also a pair of eyeglasses near the Escort’s driver’s door. Under the front tire was a wool sock, its mate several feet away in a flower bed. Farther away still, south toward the woods, a set of keys lay on the ground on the Escort’s passenger side, as if someone had flung them from the house.
Inside, the home seemed too small for its contents. What was always known as the “back door” led into the kitchen, which was Cape Cod tiny, a mere 120 square feet, not accounting for the appliances, the free-standing cabinet just behind the door, and the counters. The table was covered with newspapers, old mail, flyers, and notes. Toys scattered across the floor made the room even smaller.
Dirty dishes overflowed in the sink. Food-encrusted pans covered the burners of the galley-style stove opposite the doorway. At the right rear corner, the room opened into a narrow hallway that led to the living room. Along the right side of the hallway, on the easterly side of the house, were two doors: one led to Christa’s study, the other to the bathroom.
In the study, a lone desk lamp illuminated a room nearly as cramped as the kitchen and just as messy, with a floor-to-ceiling stack of cardboard file boxes, plastic bins, a desk and chair, piles of magazines, and more loose paperwork. A Dell laptop computer, its screen still glowing, reported that the last user had logged off the Internet.
In the northwest corner of the house, the living room offered a “million-dollar” view of the salt marsh leading down to Pamet Harbor, then the bay and Provincetown, with the Pilgrim Monument in the distance. Paintings by Christa’s mother, Gloria Worthington, covered the walls. Two couches, a coffee table, a Christmas tree, and Christa’s childhood piano made this space cramped, too. The couches were littered with coats and books. On the far side of the living room, the north end, the so‑called front door was locked. It had not been used in years, the kitchen entry being closer to the turn around where occupants always parked. The door to the bedroom, kitty-corner to the locked front entry, was shut, too. More toys strewn across the floor made the living room hard to navigate.
The little girl who owned the toys, barely two and a half, managed the transit with no problem. She had turned on the television to play her favorite video but hadn’t been able to figure out how to get the VCR tape into the machine. She’d put it in end first, then tried it sideways, then upside down. She soon stopped, wondering when her mother was going to wake up.
Despite the mess, the house appeared to be in its natural state, unaffected by the force of a struggle. The only aberration lay on the floor in the hallway: a woman’s body, naked from the chest down. Her head leaned toward her right shoulder, and blood had pooled on the floor below her swollen mouth. On her bare stomach were tiny red handprints.
The little girl made her way back toward the kitchen, stopping to tug at her mother again. She was hungry and equally starved for attention. She had never gone this long without talking to an adult. Most of all, she missed her mother’s smile, her cooing sounds. Earlier, she had tried to clean her mother as her mother had so often cleaned her, using a hand mitt to wipe up the blood.
In the kitchen, she poured herself a bowl of Cheerios, a skill she’d recently acquired. She added milk to the bowl, barely noticing the bloodstains she left on the glass bottle of organic milk her mother always bought. Her hands were covered with blood. It was under her fingernails and in her hair. She ate a little but did not finish. Her attention wandered again.
The late-afternoon sun began to set. The day had almost passed, and her mother still had not gotten up. She grabbed a bottle of apple juice from the refrigerator and put it down next to her mother, then curled up beside her on the floor. Her mother had said she would have to stop nursing soon, but for the moment, she gave up on the juice for the familiarity of her mother’s nipple.
Most eyes in Massachusetts that Sunday were on the New England Patriots, winners of five straight games and closing out a Cinderella season. The Patriots needed a victory to clinch the AFC East division title and a loss by the Oakland Raiders to seal an improbable bye in the first round of the playoffs. The victory was almost a certainty, their opponents being the Carolina Panthers, a team in the midst of a fourteen-game losing streak. Still, New England was leading just 10–3 at halftime when Robert Arnold, in his late seventies, went to pick up his son, Tim, age 44, in Wellfleet.
Since his brain surgery seven months earlier, Tim suffered double vision and balance and coordination problems, and he couldn’t drive. He normally lived with his parents, but since mid-November, he’d been house-sitting for friends in Wellfleet. His father was picking him up so Tim could do his laundry at home.
By the third quarter of the game, the clothes were in the dryer and the Patriots had jumped ahead 24–6. Tim decided to call Christa Worthington, an ex‑lover who remained a friend, to see if she still wanted to go out for Sunday night dinner. He had suggested Saturday, but she had said no. Tim had gotten the impression she was going off-Cape to see her dad. When she didn’t answer, he thought she might still be away. He left a message on her answering machine and went back to the game.
A half hour later, with New England up 38-6 and running out the clock, Robert Arnold was ready to drive the six miles back to Wellfleet. Noticing a flashlight Tim had borrowed from Christa, he suggested they return it on the way. Robert grabbed the flashlight, Tim picked up the laundry basket, and they got into Robert’s seven-year-old Ford Windstar.
As Robert drove around Old County Road and then cut back up Depot, Tim wondered whether he should return the flashlight unannounced. Christa had chastised him before for showing up without calling, and although he’d left her a message, she hadn’t given him the OK to come by. Seeing her always stirred emotions. Just two months earlier, he had written in his journal: “There is such an ache where she and Ava used to be. The first Father’s Day gift she gave me was a picture of Ava in my arms. Ouch. That hurts badly. Especially now that I can look back and see how little she was involved.”
Often, he’d tried to convince himself that he had the upper hand, writing in his diary that she could be “impatient, angry, hostile, unpleasant,” and that he had “left her several times because she was so difficult, so cutting, so caustic, on the attack.” But he couldn’t give up the idea of the two of them together.
He decided it would be best just to leave the flashlight on her back porch.
As they slowed to take the left into Christa’s driveway, it was Robert who first saw two copies of the New York Times in familiar blue plastic wrappers. Tim got out and grabbed the papers. They drove up the 175-foot drive, a narrow dirt road topped with weeds and crushed clamshells. As it curved to the left near the house, Tim was surprised to see Christa’s car. He also noticed the light on in her study. It was dusk. He got out, flashlight and newspapers in hand, crossed the flagstone walkway, and went up the three steps to the kitchen landing.
The rickety wooden storm door was closed. The inside door stood open more than halfway. Looking inside, as he later recalled, he immediately saw Christa on the floor with Ava. The child appeared to
be breast-feeding. He thought it an odd place to nurse, then remembered
that Christa would often stop whatever she was doing to give Ava her breast, no matter where.
When he called out, Ava’s head popped up. The little girl ran to him as he stepped into the kitchen, putting the newspapers down. Ava was usually a talkative child, but at this moment, she said nothing, only clung to him. He took the three or four steps across the kitchen
with the child in his arms and looked down at Christa. She was naked from the chest down, a bathrobe and black fleece shirt around her shoulders. Her legs were splayed. Her right knee was bent, pointing at the ceiling. Her left leg was bent at the knee, too, but entirely flat on the ground.
Tim blinked, having trouble with what he was seeing. Her lips were horribly swollen, as if she had been hit, and a lot of blood had run down the side of her face onto the floor. Some of it was still wet, glistening. Her eyes were wide open, staring at the ceiling, unfocused.
He looked into her eyes, and all he saw was white. In a daze, he reached down and touched her cheek. It was cold. Panic rushed through him. He looked for the phone, a cordless model that should have been on its cradle on the wall but wasn’t.
With Ava still in his arms, he stepped over the body and into the living room. The television was on, a children’s show. The flashlight was still in his hand, and he put it down on a windowsill to turn the TV off, then stepped back over the body and reached down to check Christa’s pulse. Nothing. The open bathroom door was just beyond her head. Inside, he saw blood on the rim of the sink and a red-stained wash mitt on the floor underneath. Ava’s little step stool was there, too. The child, he realized, had tried to clean her bloodied mother. He forced himself to whisper comforting words to Ava as she clutched him.
He looked around the kitchen once more, remembering that the inside door had been open. Christa must have just gotten home. What could have happened so quickly?
He carried Ava out to the Windstar. His father had already turned the van around, so that it pointed downhill, back toward the road. As Tim climbed inside, he said, spelling for the sake of the child, “Christa is D‑E-A-D,” his voice shaky. They sat in stunned silence, the only sound the whirr of the vehicle’s heater. Then Tim said, “I can’t find a phone anywhere.”
Robert left the Windstar to go inside. As he later testified in court, first he could bear only a quick glance at the body as he looked around the kitchen, putting his hand against the wall to steady himself. He had never been in Christa’s house before and wasn’t sure where to look. The place was cluttered. He looked at Christa again. He was a retired veterinarian; he’d seen death before but not like this.
The right side of the young woman’s face had been beaten, contusions covering her upper lip, nose, and forehead, and smeared streaks of blood laced her chest and abdomen. Her lips were swollen but pulled back, exposing her teeth, gleaming reddish from the blood she’d aspirated. He stepped over the body to check the living room. No phone. Quickly, he returned to the Windstar.
They sat in the van in silence again, both rattled, having trouble deciding what to do. After a moment, Tim passed Ava to his father and went back inside. Again, he checked the kitchen, the living room; he opened the bedroom door and took a quick look, remembering other times when Christa’s phone was difficult to find, a cordless in a cluttered house. He turned around for the second time, deciding that the only recourse was to go back up the path to his father’s house to call from there. He left the house without noticing Christa’s cell phone on the kitchen table. It was on, the illuminated screen revealing a lone 9.
As in 911.
He ran up the 100-yard path to his father’s house, then dialed the police emergency number. It was just before 4:30 p.m. In a surprisingly coherent voice, he told the dispatcher he thought Christa Worthington had fallen down her stairs. The Truro police switchboard logs report him saying, “I think she is dead.”
Robert continued to wait in the minivan, holding Ava, who rested her head against his neck. Although he never talked about it later, he had to have smelled both Christa’s blood and Ava’s dirty diaper. Meanwhile, Christa’s cousin Jan Worthington, a member of Truro’s rescue squad, was reading the newspaper at her North Pamet Road home two miles away when her pager went off. The dispatcher announced: “You have a rescue call—50 Depot Road, the Worthington
residence—for an unconscious, unresponsive female.”
Jan thought of her mother, Cindy, who had a pacemaker. The address was wrong, but errors like that were made all the time. She drove as fast as she could, slowing only when she pulled abreast of her parents’ house on the opposite side of Depot from Christa’s, several hundred yards west. No cars, no activity.
She turned back to Christa’s driveway. At the top of the hill, she saw Tim Arnold standing next to his father’s minivan. “It’s Christa. I think she’s dead.”
She ran up the steps and stopped at the landing. Through the kitchen door, Jan saw Christa on her back, wearing what appeared to be a green bathrobe bunched up around her shoulders. Her legs were in a weird position, “akimbo,” as Jan later described them. She turned back to Tim, screaming for an explanation. He repeated that maybe Christa had hit her head and fallen. But he didn’t know.
She again yelled at Tim, telling him to call the police. He said he couldn’t find the phone, forgetting that he had already called 911. Jan panicked and ran down the driveway, screaming, “Call the police! Somebody—call the police!” Halfway down the drive, she met the ambulance that had just returned from Hyannis and was minutes away when the emergency call for 50 Depot Road came in. Paramedic Jeff Francis, responding from his nearby home, followed in his car. All of them later recalled Jan’s shrieks.
Francis was the first official responder to step inside. The ambulance crew followed, one carrying the “first-in bag,” three others bringing the defibrillator and oxygen. They flipped the light switch near the kitchen table, and Francis noticed a pool of blood about eight inches by 14 inches around Christa’s head. He bent to feel the pulse on her neck.
“Code ninety-nine!”
The patient was not breathing. He instructed the crew to clear an area so they could move the body. They slammed the open portable dishwasher shut, slid it back to create space, and began moving toys away from Christa’s feet. The body had stiffened in its awkward position.
“Code thirteen,” Francis reported on his radio, meaning that rigor had set in. They gave up on moving her. Two members of the ambulance crew later recalled seeing the sea-green bathrobe around Christa’s shoulders and two bloody handprints on the flat of her stomach. Fecal matter was under her and between her legs, blood behind her ear. They used a brown blanket from the couch to cover her body. A plastic yellow disposable blanket from the ambulance was also put on top of the body.
The deputy fire chief and two emergency medical technicians had arrived. The kitchen was getting crowded. Outside, a second ambulance pulled up, then a Truro police lieutenant and the Truro fire captain. Cars and trucks were parked end-to-end along the narrow driveway, and Jan was still screaming. She stopped only with the arrival of her father, on foot, from across the road. The ambulance crew searched the house, looking for the baby, whose toys and handprints were everywhere.
Outside, Tim Arnold explained that Ava was safe in the Windstar with his father. Someone brought out a supply of diapers, and EMT George Malloy carried the little girl down the driveway to Jan’s parents’ home. Malloy would state that the child, whom he held in his arms for the next hour, “never once stopped shaking.”
He added, “Anybody who says she didn’t see what happened up there is totally crazy.”
Later that evening, the long probe into Christa Worthington’s murder began.
During the fall of 2008, I was in the San Francisco Bay area on a book tour for The Framing of Mumia Abu-Jamal. The tour was arranged by Jeff Mackler, the executive director of the Mobilization to Free Mumia Abu-Jamal, and it involved about fifteen speaking engagements at different venues. Jeff told me that supporters of death-row inmate Kevin Cooper – whom I had not heard of -- would be attending a number of these presentations, and that they would be asking me to write a book about Kevin’s case. Indeed, two of Cooper’s most dedicated supporters, Carole Seligman and Rebecca Doran, did just that.
Cooper had been convicted in 1985 of the brutal murders of Doug and Peggy Ryen, their ten-year-old daughter, Jessica, and eleven-year-old houseguest Christopher Hughes, and the attempted murder of the Ryens’ eight-year-old son Joshua.
Jeff had gotten to know Cooper over the years, and had visited him about twenty times. Kevin’s case was quite different from Mumia’s, he said, in the sense that Mumia is essentially a political prisoner and Kevin was anything but.
When I decided to begin researching the Kevin Cooper case in early 2009, I had no pre-conceived notions about his guilt or innocence. Each case is different, radically so. My first step was to read and notate the trial transcripts, documents of over eight-thousand pages. I then read all the police reports, witness interviews and various newspaper accounts. Finally, I read all of the appeals and the judicial rulings. By this time I was ready to begin interviewing various people involved in Cooper’s trial and his subsequent appeals.
One problem in researching a crime nearly twenty-five years after it occurred is that a number of key people involved in the investigation and trial have passed away or have retired or have simply forgotten important factual details. Another obstacle is that, because Cooper technically still has appeals open to him, the San Bernardino County District Attorney’s Office refused to discuss the case.
During the summer of 2009, I made arrangements to interview Kevin Cooper in a visitor’s cell on death row at San Quentin. On several issues, particularly those regarding his criminal record previous to the Chino Hills trial, I found him protective and less than forthcoming. That was all behind him, he seemed to suggest.
On the other hand, I was taken by his equanimity and his resolve to prove he was wrongfully convicted of the gruesome Chino Hills murders. I could see that the many years he had spent on death row, instead of diminishing him, had turned him into a person worthy of the high regard that his supporters – and his attorneys at the Orrick law firm – felt for him. On death row, Kevin Cooper had finally grown up.
Contrary to popular belief, most of the nation’s more than three-thousand-five-hundred death row inmates do not profess innocence. In fact, unlike Kevin Cooper, very few do. For those who do, the road to exoneration is a long, slow trek that usually fails. But it does succeed occasionally. Since 1973, when the U.S. Supreme Court allowed states to resume executions, one-hundred-thirty-six death-row inmates have been exonerated. In the majority of those cases, the proof of the inmate’s innocence was so convincing that the prosecutor dropped the charges rather than retry the case. In forty-five cases where there was a retrial, the inmate was acquitted.
There are two things that do link the Mumia Abu-Jamal and Kevin Cooper cases: Each was prosecuted by a district attorney’s office hell bent on winning a death-penalty conviction; and neither defendant received a proper defense. What separates the two cases is that, while Mumia’s trial was a mockery of the justice system’s standards for a fair trial, Cooper’s trial had the trappings of fairness – but was lost long before the trial opened. Two pre-trial developments caused this outcome: The San Bernardino County Sheriff’s Department destroyed evidence that could have exonerated Cooper; and his public defender insisted on going it alone. Not many Davids actually slay Goliaths.
This then is a book about a gruesome murder case, painfully recounted; all quotes are from either documents or interviews I conducted doing my research. It is also a book about how justice can go astray. It is the true story of the Chino Hills murders, and the prosecution of Kevin Cooper, a prisoner who escaped once too often and found himself in the wrong place at the wrong time. Since 1985, he has been on death row at San Quentin asserting his innocence in failed-after-failed appeal while awaiting his execution.
Chapter One. Chino Hills
Five years after Mexico ceded California to the United States in 1848, the County of San Bernardino was formed out of the vast expanses of deserts and mountains of Los Angeles County.
In most ways it is the exact opposite of its glitzy neighbor to the west. While Los Angeles County is home to the City of Angels, Hollywood, Pasadena, Brentwood, Malibu, Bel Air and Westwood, a majority of Americans could not name any city in San Bernardino County other than the county seat itself. This is as it has always been, since the town of San Bernardino was so named on May 20, 1810 by Father Francisco Dumetz, a Franciscan missionary, to honor the feast day of Saint Bernardino of Siena.
What San Bernardino County lacks in national lore, it makes up for in size alone. It is the largest county in the continental United States, encompassing over twenty-thousand square miles that sprawl from the Riverside-San Bernardino area to the Nevada border and the Colorado River. It is larger than nine U.S. states and is larger in area than Maryland, Delaware, Rhode Island and Massachusetts combined. It is the only county in California to border both Arizona and Nevada.
The San Bernardino Valley is at the eastern end of the San Gabriel Valley, and, along with Riverside County, is part of the Inland Empire, so named to distinguish the region from the coastal areas of Los Angeles County. The San Bernardino Valley includes the cities of Chino, Chino Hills, Colton, Fontana, Grand Terrace, Hesperia, Highland, Loma Linda, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, and Yucaipa.
Chino Hills is nestled in the southwest corner of San Bernardino County. Its forty-five square miles of rolling hills border Los Angeles County on its northwest side, Orange County to the south, and Riverside County to the southeast. In 1771 the Spanish founded Mission San Gabriel and began using the area to graze the mission’s cattle.
Developer Richard Gird bought the land in 1910, the same year he founded the nearby city of Chino. During Prohibition the Carbon Canyon Mineral Springs opened for business and the Los Serranos County Club soon followed, drawing both day visitors from Los Angeles and bootleggers to the isolated area.
By the mid-1970s, Chino Hills was still unincorporated with less than twenty-thousand residents. About half of Chino Hills consisted of undeveloped grazing land for equestrian ranchers and dairy farmers. Over the next twenty years the area experienced rapid development. When Chino Hills was incorporated in 1991, its population had more than doubled to forty-two thousand residents.
A somewhat worrisome aspect of life in Chino Hills is the presence of a major state prison located just three miles away with over four-thousand convicted felons. Over the preceding ten years, escapes had occurred with unsettling frequency, ranging from eight to thirty per year.
The California Institute for Men sits in a barren southwest corner of San Bernardino County, sandwiched between two state highways, in the town of Chino. When it opened in 1941 it was known as “The Prison Without Walls.” Its first warden, Kenyon Scudder, believed in education and rehabilitation. He took the title of superintendant and the guards – all unarmed – were referred to as “supervisors.” The only fence Scudder allowed on the two-thousand-six-hundred acre property was a low barbed-wire one erected to keep dairy cows from wandering through the prison complex. In 1952 Doubleday published Warden Scudder’s seminal work on penology, Prisoners Are People. The 1955 movie, Unchained, was based on his book. Chester Morris of Boston Blackie fame played the role of the groundbreaking superintendent.
As California’s prison population exploded in the 1970s – thanks in part to the crackdown on drugs and the overcrowding that produced throughout the state’s prison system – CIM devolved to the traditional mode of simply incarcerating prisoners in maximum, medium, and minimum-security facilities.
The minimum-security area, the only holdover from the Scudder days in terms of appearance, sits in an open, grassy area with dorms, surrounded by a waist-high, chain-linked fence. Guards do not patrol its perimeter.
Chapter Two. The Ryens of Chino Hills
The secluded area of Chino Hills that Doug and Peggy Ryen and their two-year-old daughter, Jessica, and infant son, Joshua, moved into in 1975 fulfilled a long-held dream for Peggy Ryen, joining a small, close-knit community of Arabian horse breeders who operated adjoining or close-by ranches. Their neighbors referred to their ranches along Old English Road as the “Arabian Horse Center of Southern California.”
From their hilltop house, the Ryens looked out over a maze of white fences that hemmed in their and their neighbors’ ranches. In the Ryens’ stables were more than a dozen white Arabian show horses, including their champion stallion, Tutal.
Peggy had owned her own horses since she was twelve years old, gifts from her twice divorced mother, Dr. Mary Howell. Peggy loved to train horses and enter them in competitions near her mother’s chiropractic practice in Lititz, Pennsylvania, not far from Lancaster. As a teen she aspired to be become a veterinarian, but her mother persuaded her to follow in her footsteps. Like her mother, Peggy attended the Palmer School of Chiropractic in Davenport, Iowa, graduating in 1963 and then joined her mother’s chiropractic clinic in Santa Ana. Three-and-half years later, Peggy opted to venture out on her own, opening her own clinic in Santa Ana. At an alumni reunion at Palmer in 1970, Peggy Ann Howell met Franklin Douglas Ryen, an ex-Marine who was in the final year of the school’s four-year program and who by now was separated from the woman he had married in 1964. Doug, who descended from Norwegian ancestry, grew up on the outskirts of Des Moines, Iowa.
At a Lutheran Church in Corona Del Mar, California, two months after Doug’s divorce was finalized, Doug and Peggy were married on December 20, 1970. For eighteen months, Doug joined Peggy at her clinic, but when Peggy became pregnant they decided to sell the practice. They used the $10,000 proceeds to open their own clinic in Olympia, Washington. Peggy bought her first two Arabian horses and threw herself into training them. Jessica Kate Ryen was born in Olympia on November 9, 1972.
In Olympia, as they would be to an even greater degree in Southern California, the horses were an economic burden. The cost to maintain them strapped the couple for cash. At one point, Peggy was forced to tap her mother for money to buy hay. With Peggy’s new responsibilities as a mother and her dedication to her horses, establishing the new chiropractic clinic fell mostly to Doug. With the practice failing to take hold, the Ryens reluctantly opted to close their Olympia clinic and accept Mary Howell’s offer to join her successful and lucrative chiropractic clinic in Santa Ana in mid-1973.
The Ryens, thanks to a $5,000 down payment provided by Dr. Howell, bought a home in Santa Ana with a backyard big enough to hold the Arabians. By December Peggy had three Arabians in her backyard, one still in Olympia, and one in training about thirty-five miles away. Her mare was pregnant. In a post-Christmas letter to her half-sister Lillian Shaffer, she wrote, “We can’t wait for our ‘big mama’ to have her baby…We’re hoping for a filly (girl) – they sell for more.”
The hand-written letter was on newly printed stationery inscribed “Ryen Arabian Ranch” that Doug had given her for Christmas. “Where we are now we should call it ‘Backyard Arabians!’ Look out a window and see a horse looking back at you – but we love it,” Peggy wrote.
When the Ryens’ neighbors in Santa Ana began to complain persistently about Peggy keeping her horses in her backyard, Dr. Howell bought a four-bedroom house in Chino Hills with six acres so the horses could be kept there.
In another letter to Lillian, this one written in May of 1974, Peggy brimmed with enthusiasm about her plans to breed and train Arabian horses. “Right now we are horse poor, but give us five years of our planned breeding program and we’ll have only the best. It’s so exciting! Finally, after all of these years of wanting I’ve got what I’ve always wanted.”
She wrote about Doug and her watching their mare foal at 2:30 a.m and described the newborn as “a real pistol.” They named him Barna-B, but “of course we call him Barny.” She said because Barny was a full brother to their dark stallion, he would be for sale later on. “It’s so much fun having a little one to train since our other youngests are two years old already. Jessa loves having one her size around.”
In other news, Peggy mentioned buying a five-year-old Arabian stallion she named Scruffy, and arranging to impregnate one of her mares with the highly regarded stud, Sahara Prince, whose photo was on the back cover of the current Arabian horse magazine. “We’ll have the foal next year. Can’t wait to see his babies – we should make a mint when we sell that one.”
Her other two mares were going to be bred to two top stallions also featured in that issue of the magazine. “These stallions are pure polish and really gorgeous animals,” she wrote. “The dark stud’s fee is $1,500, a real bargain. The blood line of our one mare is a very valuable cross and the foals are going for $20,000 or so. Untrained! But we won’t sell that one – I’ll show it next year.”
Her other mare would be bred to the white stud shown in the magazine “and what a movin’ machine we’ll have from that cross.”
With three foals on the way next year and one already born, the Ryens began ranch hunting. By now, Peggy was pregnant again. Several months after Dr. Howell moved to Chino Hills, a five-acre, a hilltop ranch directly above Dr. Howell’s house came on the market. Doug and Peggy Ryen sold their home in Santa Ana and bought it. Peggy said that the property came with “a gorgeous barn and huge riding ring but rotten house! Oh well, we can always change that.” The three-bedroom, two-bath house featured a sunken living room, a family room, and a Jacuzzi in the patio off the master bedroom. The Ryens would never get around to fixing up the well-worn house.
Chapter Three. June 4, 1983
On Saturday, June 4, 1983, the Ryens and eleven-year-old Chris Hughes attended a potluck barbeque dinner with about a hundred other Arabian horse people and their families at the Chino home of George and Valerie Blade. George Blade made his living as a horse shoer, a service he had provided the Ryens for the past eight years. It was a BYOL affair. Doug and Peggy brought a bottle of pink Chablis. Earlier that afternoon, Chris called home to get permission to spend the night with his friend Josh. That night, the Blades’ young son, Jason, pleaded with his parents to allow him to spend the night at the Ryens’ as well, but he was not allowed to because his grandmother was visiting and it was already 9 p.m., an hour after his normal bedtime.
Around 9:30 p.m. the Ryens and Chris returned to the Ryens’ rambling, split-level, pentagon-shaped home. After awhile, the children went to sleep, the boys in sleeping bags on the floor in Josh’s room and Jessica in her room. Doug Ryen watched some television before joining his wife in bed, probably after 11 p.m. As was their custom, the couple slept in the nude in their king-size waterbed.
When Chris did not come home at 9 a.m. to join his family for church the next morning, his mother, Mary Ann Hughes, began calling the Ryens’ house only to get repeated busy signals. At 11 a.m. she drove the short distance to the Ryens’ house, went to the front door and knocked. When no one answered, she tried to open the door but found it locked. She walked around to the west side of the house and looked into the children’s bedrooms but could not see or hear anyone. She called out several names but got no response. She noticed that the Ryens’ station wagon was gone and then drove home to ask her husband to go take a look.
Bill Hughes, an agriculture professor at Cal Poly Pomona, got in his Audi and drove up to the Ryens’ house. He went to the front door, but no one answered and the door was locked. Hughes went around to peer through a sliding glass door into the Ryens’ master bedroom. He could not at first believe what he was seeing. “It was a very bloody scene and my first recollection was that this can’t be blood, this is paint, makeup…I thought what kind of crazy game is this?”
Peggy Ryen was lying on her back naked in the middle of the room and Doug Ryen, also nude, was kneeling over by the edge of the bed. Both were covered in blood. Not far from Mrs. Ryen, Chris Hughes was lying on his stomach and Josh, drenched in blood and curled up in a fetal position, was near him. Josh was moving, but his eyes were glazed and the left side of his head was “gashed up.” Josh had been left for dead with his throat slit from ear to ear, a hatchet blow to his head that fractured his skull, several stab wounds to his back that broke three of his ribs and collapsed one lung, broke his collarbone, and nearly severed his left ear. He had survived by keeping his fingers pressed to his throat to staunch the bleeding, and then going into shock for eleven hours until help arrived.
Hughes tried to enter through the glass door, but couldn’t budge it. The door was unlocked, but in his panic, he was tugging it the wrong way. He yelled to Josh to open it. Josh tried to move but could not. Hughes ran around to another side of the house and kicked in the kitchen door. In the kitchen were the Ryens’ Irish setter, their golden retriever, and three kittens playing on the floor. “I thought that was strange, that they were playing,” Hughes recalled. As he approached the master bedroom he saw the bloodied, incredibly lacerated body of Jessica Ryen, sprawled across the doorway. He reached down and touched her and by her stiffness knew she was dead. He entered the master bedroom and called out to Josh. When Josh looked at him, Hughes asked him what had happened, but Josh could only mumble. He told Josh to just lie there.
Hughes checked his son and the Ryens for signs of life and found instead massive face and head wounds. Rigor mortis had set in. Hughes tried to call 911 from the Ryens, but both phones were out of order. He raced to a neighbor’s house and asked Bob Howey to call the police and request an ambulance for Josh. Hughes, recalling that he was “somewhat in a state of shock,” went home to tell his wife what he had seen while Howey went up to the Ryens to wait with Josh until help could arrive.
A crew of six from the Chino Fire Department – three paramedics and three firefighters – arrived and soon began treating Josh in the master bedroom about 12:30 p.m. Josh was lying on his left side, with his head turned toward the end of the water bed. Ruben Guerrero, a fire department medic, put some Vaseline on Josh’s neck wound, then gauzed and bandaged it. He then rolled Josh over on his back and attempted to start an IV but could not locate a vein in his arm. Josh was manifesting numerous signs of being in shock: no bleeding from an open wound, no blood pressure and no pulse. His system had literally shut down, but he was able to raise eight fingers when Guerrero asked him how old he was. The medic tore Josh’s pajama top off and cut his clothes away and washed away some of the blood and fecal matter on him with a white towel another medic removed from the master bedroom bathroom. The towel ended up on Peggy Ryen’s leg.
As the medics were treating Josh, a firefighter was coming in and out of the master bedroom, providing treatment advice being relayed from the emergency room of Loma Linda University Hospital. In response, Guerrero placed anti-shock trousers – called a MAST suit – on Josh. Anti-shock pants are used to get any blood that is pulled to the lower extremities back up to the vital organs.
A little after 1 p.m., a helicopter arrived and air-lifted Josh to the nearby hospital, arriving there at 1:36 p.m. En route, an IV was started and an oxygen mask attached. Josh was given ten liters of oxygen a minute, a substantial amount.
At 1:50 p.m. Dr. Imad Shahhal, a neurosurgeon, began operating on Josh’s head wounds as another team of surgeons began treating the wounds to his neck. Dr. Shahhal found Josh surprisingly responsive. As he shaved the boy’s head he could see the fracture in Josh’s skull. He cleaned and sutured the wound. Another surgeon, Dr. Larry Habenicht, inserted an endotracheal tube in Josh’s windpipe to aid his breathing.
Chapter Four. A Massacre
San Bernardino County Sheriff’s Department Deputy Paul Beltz was the first officer at the crime scene, arriving six minutes ahead of the paramedics. Dispatch had told him to go to 2943 Old English Road, a homicide scene with one survivor. Beltz, with his gun drawn, entered through the kitchen door. He soon saw Jessica sprawled in the bedroom doorway and checked her for vital signs. He stepped over her to enter the master bedroom. “I thought, my God, what in the hell have I come across. The walls were all white, but smeared with blood – I mean everywhere,” he told a newspaper reporter from the Daily Bulletin. “It was like something you see in a Helter Skelter movie. That must have been one holy battlefield. I felt inadequate holding a handgun.”
The murders had an uncommon viciousness to them, as if the killers meant not only to kill, but to send a message of payback or retribution. There would be no open caskets at these funerals. Each of the murder victims sustained numerous deep chopping wounds to the face and head and stabbing wounds to the body inflicted by a long knife. An ice pick was also used. Many of the wounds to Jessica Ryen were meted out post-mortem. The autopsy reports stated that more than one-hundred-forty wounds, twenty-eight fractures, and two amputations were inflicted on the four murder victims.
Forty-one-year-old Doug Ryen was found slumped kneeling against his bed, the victim of thirty-seven hatchet and knife wounds. Two of the hatchet blows fractured his skull. One of the knife wounds to his chest penetrated five inches through the right pleura cavity and then through the right lung. Another transected the left carotid artery causing extensive hemorrhage and arterial blood spraying on the wall behind the water bed. He sustained that injury on the opposite side of the bed from where his body was found, indicating he was mobile during part of the onslaught. Oddly, all four fingertips of his left hand were lightly touching the edge of the waterbed on his side of the bed. Another indication that the solidly built six-foot-two chiropractor had at least a few moments to attempt to ward off the attack was a severed finger on his right hand. The blow that amputated the finger was delivered with such force that the finger was propelled into a bedroom closet. Also suggesting that Doug actively resisted the attack were a number of defensive-type wounds slashed into both of his arms, one of them fracturing the ulna of his right forearm above his wrist.
Peggy Ryen, also forty-one years old, was positioned in the middle of the bedroom with her arms straight out, her left leg straight out and her right knee slightly bent inward, much as though she had been nailed to a cross. The blood drain pattern running from her right thigh to her right foot indicated to the medical examiner, Dr. Irving Root, that she was standing when she incurred that wound. He said the bruising near her nose indicated that she was alive for one to three minutes after being hacked in the left cheek. A smudge pattern on her left knee meant “she had to be elsewhere for a period of time” from where her body was found. During the attack, and while still alive, she suffered hatchet wounds to both her face and the back of her head and a stab wound to her left breast.
Her body was covered with smeared dried blood and what the deputy coroner, David Hammock, described in his crime scene report “as a number of loose hairs about the subject body, including some very long brown hair, both on the left thigh and, in particular, about the auxiliary areas and arms. These hairs are longer than the subject’s own head hair.”
Peggy sustained seventeen hatchet wounds to the forehead, face and chest and four separate knife wounds to her chest. She, too, showed signs of resisting the attack, with stab wounds on fingers of both hands and left forearm. The hatchet wounds exposed her skull to the bone and caused multiple skull fractures. The medical examiner listed thirty-three separate wounds, most of them delivered with great force and destruction.
Although San Bernardino County Sheriff Floyd Tidwell told the media that the killings were in no way “ritualistic,” a good deal of staging could be inferred from the placement of both Doug and Peggy Ryen’s bodies. It was as equally unlikely that Doug Ryen would have died kneeling with his fingertips barely touching the front side of the bed as it was for his wife to have died with her body splayed straight out in a T.
Jessica, who died with a clump of blond or light brown hair clutched in her fingers, sustained the most wounds, forty-six, and had the most defensive type wounds to her hands and arms. Her autopsy reported eight separate stabbing wounds to her right forearm and four to her right hand and wrist. The little finger of her left hand was cut to the bone. At four-feet-nine-inches and eighty pounds, she apparently sustained all those wounds before succumbing to having her forehead and face hacked in and her throat deeply slit. One hatchet blow to the right side of her mouth was delivered with so much force that it caused three of her teeth to dislodge from her gums.
A knife was dragged across her back and then inserted. Dr. Root said the bruising around the entry wound indicated it occurred early on in the assault.
In another display of staging, Jessica’s chest was dotted with twenty puncture wounds most likely inflicted post-mortem with an ice pick in what the medical examiner described as showing “some type of pattern.” Her head was twisted up so that her heavily mutilated face was visible.
Some of Jessica’s hair was found on her mother’s body. This led Dr. Root “to believe the mother was cradling her daughter at one point during the attack.”
Chris Hughes endured twenty-six separate wounds, including a deep hatchet gash that ran from his eyebrows to the tip of his nose. He sustained numerous skull fractures. He was stabbed clear through his sternum. His hands, wrist and arms also revealed numerous defensive wounds: his left arm was nearly severed and the second finger on his right hand was attached by a flap of skin.
Theft did not appear to be a motive for the killings. In reviewing the crime scene the day the murders were discovered, Detective John Clifford saw no signs of ransacking. On a counter between the kitchen and the dining room, he saw coins and some bills in plain view next to Peggy Ryen’s purse. Her purse contained over $40 in cash and numerous credit cards. There was also a small amount of cash in Doug’s pants. Clifford also located a coin collection in a safety deposit box on the upper shelf of a master bedroom closet. Also visible in the bedroom was a jewelry box with jewels in it, as well as a video camera, stereo system, and a TV with a VCR. In a nightstand drawer less than five feet from where Peggy Ryen’s body was laying, he found a loaded .22 Ruger pistol. In Doug Ryen’s closet, about two feet from where his body was found, was a loaded .22 caliber Winchester Magnum rifle with scope attached. An unloaded Smith & Wesson pellet gun was on the bottom shelf of that closest. Doug Ryen’s wallet was missing, but it would be found under the front seat of his pickup truck in late July. Only the Ryens’ station wagon had been stolen. Their pickup truck, a 1976 Chevy Silverado with “Ryen Arabians Chino California” printed on the side, was still in the driveway with the keys in it.
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Just before closing time at the Teigin Bank in the suburbs of Tokyo, on January 26th, 1948, a nondescript and middle-aged man walked in through the front entrance. He was later identified, possibly incorrectly, as artist Sadamichi Hirasawa, but claimed to be Dr. Jiro Yamaguchi and had a business card to prove it. He left less than an hour later, but what happened between his arrival and departure was to shock the whole Japanese nation and reverberate through the Japanese courts for decades to come.
The man identifying himself as Dr.Yamaguch arrived wearing an armband bearing the label “Metropolitan Office, City Hall of Tokyo,” carrying a medical bag over his shoulder. He explained that dysentery had broken out in the area and that he had been sent to vaccinate the bank’s staff. Tokyo having been very heavily bombed during the later stages of World War II meant that dysentery (and other diseases) could still pose serious public health problems and, the Japanese being a people usually deferential to and respectful of authority figures, the bank staff both believed and obeyed him implicity. None of them suspected, even slightly, that Dr. Yamaguchi wasn’t who he claimed to be.
Most of them would pay for this trust with their lives.
Farah Jama, a 21-year-old Somali immigrant in Australia was convicted – based on contaminated DNA evidence – of raping a woman he had never met at a bar in Melbourne he had never been to. His exoneration, after 16 months in prison, led to important reforms in how DNA material is collected from rape victims.
All over the world, young men sometimes still go to prison for crimes they didn't commit. But in 2008, in Melbourne, Australia, a 21-year old Somali-born student went to jail for a crime that didn't even happen. This unlucky young man was not the victim of police corruption or manufactured evidence. Instead, he was convicted by a piece of forensic evidence produced in a one-in-a-million “CSI moment:” the kind of improbable, but theoretically possible scientific episode that only a scriptwriter for the famous CBS series might dream up.
Sadly for Farah Jama, his “CSI moment” was real. It happened at Melbourne’s Austin Hospital, one of several in the city with suites of rooms where rape victims are taken for forensic examination.
It was here, in the early hours of Saturday, July 15, 2006, that an agitated young woman was waiting for the on-call forensic doctor to arrive and examine her. There was a sticky-looking substance in her hair: male ejaculate from a sexual encounter she’d been involved in a few hours earlier. The episode, involving oral sex, had not been romantic. But the girl hadn’t been raped. A girlfriend had urged her to pursue a rape allegation, but she later withdrew it.
As the young woman paced up and down, her hair was shedding tiny, invisible fragments of male DNA. These unseen flecks floated in the air, some near a trolley holding swabs, slides and other equipment. One tiny fragment landed in an open box of slides. It sat there, a microscopic forensic time bomb, waiting to go off.
Just over 24 hours later, the same forensic doctor returned, having been called in to examine another patient. As the woman lay down on the bed next to the trolley, the doctor opened the box of slides, unaware that at least one of them was already contaminated with male DNA. With a gloved hand she took a sample from the woman and dabbed it on to the slide. She then sealed the slide in an evidence bag, and handed it to the waiting police.
Four months later, that tiny forensic bomb exploded.
Justice on Trial is a landmark study of prosecutorial misconduct conducted by the Northern California Innocence Project at Santa Clara University School of Law and released in October of 2010.
In 2007, a California Court of Appeal set aside the murder conviction of Mark Sodersten because a Tulare County deputy district attorney had improperly withheld from the defense audiotapes of his interviews with a key witness.
The Appeals court personally listened to the tapes and concluded they contained dramatic evidence pointing to Sodersten’s innocence. Based on this finding, the court vacated his conviction. “This case,” the court declared, “raises the one issue that is the most feared aspect of our system—that an innocent man might be convicted.”
For Sodersten, however, the ruling came too late. He had died in prison six months earlier, after spending 22 years behind bars. The prosecution had sought the death penalty, but the jury sentenced him to life without parole.
The ruling was one of 707 cases of prosecutorial misconduct uncovered in a year-long investigation by the Northern California Innocence Project (NCIP) at Santa Clara University School of Law.
The investigation, made public October 4, 2010 is the most in-depth statewide review of prosecutorial misconduct in the United States.
The investigation reviewed more than 4,000 state and federal appellate rulings, as well as scores of media reports and trial court decisions, covering the period 1997 through 2009, to produce a comprehensive analysis of publicly available cases of prosecutorial misconduct in California.
The NCIP study, conducted by Kathleen Ridolfi, NCIP executive director, and Maurice Possley, a Pulitzer Prize-winning journalist and currently a visiting research fellow at Santa Clara University School of Law, suggested that cases of prosecutorial misconduct averaged one a week over that 13-year period.
But that figure undoubtedly understates the total number of such cases. The 707 were just the cases identified in a review of appellate cases and a handful of others found through media searches and other means.
In another 282 cases examined by the NCIP, the courts did not decide whether prosecutors’ actions were improper, finding that the trials were nonetheless fair.
The report details how prosecutors are rarely disciplined for their misconduct and how the courts fail to report it. The California State Bar rarely investigates such misconduct.
It expanded upon a study of prosecutorial misconduct conducted by Ridolfi after she was appointed to the California Commission on the Fair Administration of Justice in 2004.
The records show the California Bar did investigate the Sodersten case, but failed to take action. Even though Sodersten’s death ordinarily would have ended the case, the Appeals Court took the unusual step of issuing a ruling anyway because of the importance of the issue: “[W]hat happened in this case has such an impact upon the integrity and fairness that are the cornerstones of our criminal justice system that continued public confidence in that system requires us to address the validity of [Sodersten’s] conviction despite the fact we can no longer provide a remedy for petitioner himself.”
The court concluded: “To do otherwise would be a disservice to the legitimate public expectation that judges will enforce justice. It would be a disservice to justice. Most of all, it would be a disservice to [Sodersten] who maintained his innocence despite a system that failed him.”
The prosecutor was never disciplined. Sodersten’s attorney filed a formal complaint with the California State Bar, arguing that the prosecutor “asked a jury to kill a man based on a conviction he perverted.”
In April 2010, the State Bar closed the investigation, because “this office has concluded that we could not prove culpability by clear and convincing evidence” – even though the tapes the prosecutor wrongfully withheld included interviews with a key witness conducted by the prosecutor himself.
The prosecutor, Phillip Cline, has never been held responsible for his actions, and it is virtually certain that he never will. He has absolute immunity from any civil liability for his conduct as a prosecutor. Cline was elected District Attorney for Tulare County in 1992 and remains in that position today.
In the vast majority – 548 of the 707 cases – courts found misconduct but nevertheless upheld the convictions, ruling that the misconduct was harmless. Only in 159 of the 707 cases – about 20 percent – did the courts find that the misconduct was harmful; in these cases they set aside the conviction or sentence, declared a mistrial or barred evidence.
The study shows that those empowered to address the problem – California state and federal courts, prosecutors and the California State Bar – repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.
Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.
Notably, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutors involved (600 cases), 67 prosecutors –11.2 percent – committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five.
The report contains a series of recommendations aimed at reducing prosecutorial misconduct. These include:
development of a course by the California District Attorneys Association, California Public Defenders Association and California Attorneys for Criminal Justice to address ethical issues that commonly arise in criminal cases;
adoption by District Attorney offices of internal policies that do not tolerate misconduct, including establishing internal reviews of error;
and adoption by District Attorney offices and law enforcement agencies of written exculpatory evidence policies.
Moreover, the report seeks expansion of judicial reporting to include any finding of “egregious” misconduct, as well as any constitutional violation by a prosecutor or defense attorney, regardless of whether it resulted in modification or reversal of the judgment. The report recommends that judges be required to list attorneys’ full names in opinions finding misconduct.
And the report also recommends that the State Bar expand discipline for prosecutorial misconduct and increase disciplinary transparency.
The Northern California Innocence Project (http://www.ncip.scu.edu/ ) at Santa Clara University School of Law, founded in 2001, operates as a pro bono legal clinical program, where law students, clinical fellows, attorneys, pro bono counsel, and volunteers work to identify and provide legal representation to wrongfully convicted prisoners.
NCIP educates future attorneys, exonerates the innocent, and is dedicated to raising public awareness about the prevalence and causes of wrongful conviction. The project also promotes substantive legislative and policy reform through data-driven research and policy recommendations aimed at ensuring the integrity of our justice system.
To read the excutive summery of the report, please click here (.pdf file).
Rachel Nickell, Andre Hanscombe and their son Alex in the park
Not even Scotland Yard’s famed Murder Squad is immune from locking in on one suspect to the exclusion of all others and allowing its conceit to permit a serial rapist and murderer to stay at large for years after the evidence to convict him was in the police’s hands.
In the photograph, her smile is wide and bright. A blue sky is behind her and she squints slightly from the sun as a wisp of blonde hair drifts across her face in a breeze. She seems incredibly happy. In another photograph, she and her boyfriend smile at the camera, bundled up against the chill. Between them is the buggy holding their young son.
Some people just radiate happiness, people who are attractive and put a smile on the face of those who saw them, even if they didn’t know the person.
Rachel Nickell was one of those people. Bright, attractive, and with boundless generosity, she was instantly likeable, and was capable of achieving anything that she set out to do.
Rachel Jane Nickell was born on November 23, 1968 to Andrew Nickell, an officer in the army, and his wife Monica, and brought up in Great Totham, a village near Colchester in Essex. From a very young age, Rachel was naturally charitable, helping out with the elderly and with the disabled children in the area.
When she turned 11, Rachel went to the Colchester High School for Girls, and in her spare time, she joined the Essex Dance Theatre and took up singing, dancing, and acting. She could have pursued this course, but instead, decided to study and get a degree in History and English.
Rachel Nickell
Rachel got a job at a Richmond swimming pool as a lifeguard, and it is there, in 1988, that she met a young motorcycle courier named Andre Hanscombe. The couple fell in love, and a year later, Rachel gave birth to her son, Alexander Louis. Rachel and Andre never married, and there is no indication that they were even thinking about it.
Rachel decided to stop working, at least for then, and devoted herself to being a full-time mother, even though she had been offered work as a photographic model. Maybe when Alex was old enough, she would pursue her ambition to be a children’s television presenter, an ambition in which she no doubt would have excelled.
The young family moved to Balham, in South London, and life seemed perfect. Wimbledon is also in South London. Known throughout the world for hosting the world’s most prestigious tennis tournament, people flock there in the summer to watch the matches and eat strawberry cream tarts at the afternoon teas in the pavilions.
But tennis is not the only thing the area is known for.
In 1997, Ted Kuhl was convicted and sentenced to 40 years in prison for murdering his girl friend, Janet Nivinski, in Loves Park, Illinois. Reporter Harriet Ford presents the case for his innocence.
Just after midnight on December 6, 1996, Janet Nivinski, a 28-year-old, blue-eyed blonde, was murdered beside her car in the parking lot of a strip mall in Loves Park, Illinois, a small township located outside Rockford, Illinois in Winnebago County. The bullet that killed her was fired assassination style, six inches from her head.
During the last week of Janet’s life, she had been investigating a discrepancy at Amcore Bank, where she was responsible for transferring large sums of money overseas. She spoke to a male friend about it. She was disturbed and said, “I can’t say what it is right now, but something is not right at the bank.” A bank employee was fired that week. Police interviewed him and dismissed him as a suspect.
An unknown man also stalked Janet a few weeks before her death. A neighbor woman became suspicious and jotted down the license number of his car, but this number was lost –one of several pieces of possible evidence to be misplaced.
Janet and her best friend Christa Peterson were planning to fly to California together in January. Janet’s boyfriend, 48-year-old Ted Kuhl, surprised the two women with plane tickets, which he had purchased for them, possibly as an early Christmas gift.
Earlier on Janet’s last day, Ted took her shopping for a Christmas tree at a lot owned by his friend, Dan Johnson. The pair spent over an hour picking out just the right tree. Dan said they were having an enjoyable and affectionate time together. Ted purchased the tree for Janet and she took it home to decorate
Ted went to deliver a gift to Janet’s mother, Sandy Ostrander, but she was not home.
Later that evening, Janet met Ted and a group of seven friends including Dan Johnson, Ricky Mueller, and Christa Peterson met at the Backyard Bar and Grill for a late supper. Located in the Loves Park Meadowmart strip mall, the bar stayed open past midnight because, according to the bar tender, everyone was having an enjoyable time, laughing and bantering with him as well as each other.
The only member of the group who seemed a little out of sorts was Christa. She did not like what she considered flirtatious behavior toward her from Ricky Mueller, a married man whose wife was not present.
At a previous social gathering, Janet also had voiced concern about Mueller, telling a friend, Carol Brannon: “Rick gives me the creeps. I don’t trust him. He told Ted that women are like a raccoon scratching in the garbage can. You shoot ‘em and they just keep coming back. That remark was meant for me.”
The Stalker in the Bomber Jacket
Outside in the strip mall parking lot, a man in a leather bomber jacket and ball cap kept pacing around the perimeter. Two security guards grew suspicious and asked him what he was doing. The unknown man snarled a few curse words. Then he said, “I’m waiting for someone inside.”
The temperature was 28 degrees, yet the man continued to walk the parking lot for more than an hour instead of entering a place of business. He made a call from a payphone to young woman who is the daughter of a gang member. After midnight, the guards went home. The strip mall parking lot lights blipped out. The stalker was veiled in darkness.
Many vehicles were still parked in the area because the Game Place was just closing. Around 1:18 a.m., Ted and Janet decided to leave the Backyard Bar and Grill. Other people left also. Ted walked out with Janet and Christa. Ricky Mueller, a longtime friend of Ted’s, headed for his car parked near Ted’s pickup at the far north end of the lot and some distance away.
Ted and Janet stopped at Christa’s car and said their goodnights. Christa began scraping ice from her frosted windshields. Walking five or six stalls farther on, Ted kissed Janet goodnight beside her car.
At 1:26 a.m. Ted turned to walk away. He heard Janet scream. He heard four to five shots ring out and zing past his head. He began running in a zigzag pattern as if dodging bullets, according to a shopkeeper who heard a bullet strike his storefront window and looked out.
Ricky panicked, gunned his van, and sped away from the scene. Several blocks away, he used his cell phone to call 911. In a panicky voice, he reported someone had just been gunned down, and he provided a description of a suspect in a leather bomber jacket, baseball cap, and tan pants. This is the same description later furnished by two additional witnesses, the security guards, who saw a man walking in the area just prior to Janet’s murder.
Stopping to grab Christa, who was trying to crawl under her car, Ted rushed her back inside the restaurant and shouted, “Someone just shot my girl!”
Dan Johnson ran outside with Ted. They found Janet lying in a pool of blood, clearly beyond help. The bullet from a .357 Magnum entered her head on the right temple area and exploded in her brain.
Loves Park Police arrived within three minutes. During those three minutes, Ted ran from vehicle to vehicle pounding on windshields and demanding, “Who did this?” Dan remained with him.
Loves Park Chief of Police Darryl Lindberg arrived and said he didn’t like Ted’s angry behavior. He asked an officer to seat Ted in the back of a squad car. He also said, “You’d better check his vehicle for a gun.”
The Bearded, Barefoot Man
An excited witness at the crime scene pointed to a vehicle and said, “There he goes!” For no other reason than he apparently saw a guy jump inside and gun the engine. An officer made a traffic stop and conducted a “field interview.” He found the bearded driver, barefoot and bare-chested despite the sub-freezing temperature outside. Giving his name as Darrel D. Weichert, the driver was allowed to leave the scene, based solely on his denial of any involvement. Weichert was not asked to step out of the car. The officer did not check for bloody shoes or shirt. He apparently regretted this.
A short time later, the same officer (apparently realizing he had made a serious mistake) knocked at Weichert’s door in Loves Park, and the man appeared without the beard. He did not shave it off, because according to coworkers, he had never worn a beard. His story was that he had been out doing drugs and removed his shoes so he wouldn’t wake his wife. Police evidently believed it. Could he have been the unknown man walking the lot in the bomber jacket? Street gang members were known to wear that style of jacket.
WROK Radio man Fred Speer arrived to photograph the body. He said the area was so dark he had to turn headlights on from five feet away in order to see Janet’s corpse.
Officers drove Ted and Christa to the station to take their statements.
From blocks away, Ricky phoned the Backyard Bar and Grill to ask if Ted had been shot. Then he drove to the police station and gave Ted a consoling hug. Police took his statement also.
Christa and Ted gave short simple statements to Loves Park police and were allowed to go home. Their vehicles were kept overnight inside the yellow crime-scene ribbon.
The next day, Ricky Mueller arrived at Ted’s house and asked Ted to go skeet shooting with him.
Also the next day, police and fire department members scoured the crime scene area, the garbage cans, and the entire roof of the strip mall. No gun was ever found.
Zeroing in on Ted
First believing the murder was a gang-related shooting, police continued to press Ricky, Ted and Christa for more details. They were stymied by the fact there was no apparent motive for the murder.
It is apparent from the chronology of these reports that Ricky began to fear he would be accused. He eventually turned suspicion toward Janet’s boyfriend and lover, Ted.
It is a staple of police investigation to take a hard, close look at the people closest to a murder victim, such as a spouse or lover. Ted fit the bill.
By all accounts, Janet and Ted lived together off and on for two to three years. Janet told Christa that she would set ultimatums: “If you don’t want a child by November (Dec. etc.), I’m moving out.” After it became apparent to her that Ted, the father of a college-age son, did not want more children she moved out a final time. Nonetheless, the couple still enjoyed a close personal relationship. They continued to see each other socially, and on occasion, intimately. In fact, a pregnancy exam was actually part of the forensics report. Janet was not pregnant.
The second area of potential conflict was Janet's request to Ted to have her name taken off the mortgage on the house they had purchased while living together. There was no indication in any of the statements that this conflict was more than a verbal request by Janet.
The money Janet loaned Ted for the down payment of his house had already been repaid months earlier. Thus, there did not appear to be any friction over money aspects of the house.
There was later a mention by Janet’s mother Sandy Ostrander (only after Ted became a suspect) suggesting that Ted and Christa might possibly be seeing each other.
Christa’s night at Ted’s
Christa was Janet’s close friend since grade school. The 28-year-old single mother was emotionally shattered by Janet’s murder. She felt surrounded by violence. Just 12 weeks earlier, her ex-boyfriend had been gunned down during a drug-related incident. Now Janet’s bloodied body lay on the tarmac. She reasoned, “What if the killer saw me and might be coming after me too?”
Christa’s children had stayed with their father that weekend. She did not want to go home alone to an empty house. She asked Ted if she could sleep on his sofa until morning.
That innocent request led investigators to conclude that Ted and Christa were having an affair – a manufactured motive for the crime-of-passion theory. They could find no other motive. Both Ted’s and Janet’s close personal acquaintances and family members later stated to me and to investigators that they knew this alleged affair never happened.
A co-worker with Ricky Mueller also knew Ted, Janet, and Christa on a social basis. He spoke to me much later after the trial to say he drove past Ted’s home every night on his way home from work. He never saw Christa’s car there—only Janet’s car.
The Interrogations
Ricky, Ted, and Janet were interrogated on several occasions during the remainder of December.
On December 18, Ricky’s 10th contact with police, he was taken to Reid and Associates for a polygraph examination. He failed all questions regarding his supposed knowledge that Ted was the shooter.
After failing his polygraph test, Ricky’s nervous state increased, and he changed his story again, eventually 16 times in the records and even more times to friends. Ricky began to claim he had furnished false statements to police in order to protect himself from Ted and indicated he feared Ted would also shoot him.
Once Ricky was willing to say he saw Ted with the gun, Illinois State Police persuaded him to make a pretext call to Johnstone Supply (heating and air conditioning) where Ted worked, to get Ted to implicate himself. They recorded the call and listened in.
In the call, Ricky says in a very nervous voice, “I can’t sleep. I can’t eat. I need to know what to do to protect you and me. Why’d you do it Ted?”
Calmly, Ted answers Ricky, “Come on buddy. I was there. If you really believe I shot Janet, where’s the gun?”
Christa’s Consistency
Significantly, Christa Peterson’s and Ricky’s first statements matched before he began to change his story.
Christa saw Ted running from an unknown man firing at him. She tried to crawl under her car and Ted grabbed her and ran with her to the restaurant. At least three additional witnesses, identified by private investigator Joe Lamb, reported seeing a shooter simultaneously while Ted was fleeing.
In an attempt to get additional information, police began to accuse Christa of lying. Still she refused to verify several police scenarios in which they suggested to her that Ted was the gunman. They said they had photos and evidence to prove that she was lying. They also said Ted had confessed to shooting Janet. Even with that revelation, her story remained consistent. She kept asking what possible motive could Ted have to shoot Janet.
It is apparent from police reports that police hoped to break Christa’s story. They continued to press her concerning Ted's actions, implying that she was not telling the truth and was withholding information. This is documented in several parts of the report as "Christa became defensive."
On January 8, 1997, Christa took a polygraph test and passed it. The examiner said she was truthful in her statements.
Ted
Shocked that his best friend would accuse him, Ted suggested that he and Ricky meet at the Illinois State Police headquarters, where he expected to confront his accuser and go home. He reasoned correctly that they had no evidence against him.
His employers urged him to have a lawyer present, but Ted foolishly believed he did not need an attorney: “I knew I was not guilty. I did not want to appear guilty by asking for a lawyer. I also believed police would do their job. They would find the killer.”
It was Ted’s suggestion to confront Ricky at the police station instead of running and hiding, as a guilty person would do. He showed up after a full day’s work and underwent a brutal 14-hour interrogation throughout the night, during which he was shouted at, accused of lying, given coffee but refused permission to go to the restroom.
State law dictates that in the course of an investigation, a suspect must be informed of his legal rights.
It is clear that by the December 19 interview, police believed Ted was the offender and had begun to focus on him to the exclusion of all other possible offenders.
Theoretically, the rights advisement should have been initiated once incriminating statements were obtained and additional such statements were being sought.
In some jurisdictions, when incriminating statements are obtained from an interviewee, without benefit of a rights advisement, a "cleansing statement" is required prior to continuing the interview.
A cleansing statement essentially is a clear advisement by police, basically stating that even though incriminating statements were made without benefit of rights advisement, the interviewee has no obligation to continue with the interview.
A legal expert needs to evaluate whether Ted's rights were violated at this time.
Interrogators began suggesting differing scenarios of the crime, and as the night progressed, a wearied Ted began to change his story. Eventually, they promised him that he could leave if he signed a statement written by them, in which they claimed Janet “pulled a gun and Ted wrested it away from her. During the struggle, the gun accidentally fired.”
Actually Janet died with a shot glass in one hand and car keys in the other. It is evident that she did not have a gun.
Exhausted and believing the scenario impossible, Ted foolishly signed it.
Ted later said, “I was broken. I was in shock. I was shaking so badly I had to pull over and stop my truck in order to gain some composure. I also knew it was an impossible scenario. From where I stood with my back turned, I would have had to be left-handed and a contortionist to shoot Janet in the right temple, and I believed the police would realize that when they checked the facts. But they stopped checking the facts when they got that document—which was never a confession to premeditated homicide—signed.”
From that point on throughout the remainder of the investigation, police made no effort to corroborate any of the statements made by Ted or Christa.
Satan’s Disciples
Loves Park Police also ignored investigating other possible suspects. Private investigator Joe Lamb examined surveillance video film from that night and traced license plates to members of a violent street gang, the Satan’s Disciples, known for drive-by shootings in Rockford. Loves Park police had originally believed the crime to be a drive-by shooting. Another car in the lot belonged to a driver who actually had a murder conviction on his record. This information was withheld from the jury.
No Forensic Evidence
From the Crime Lab’s reports covering the forensic examination of the physical evidence, there was no physical or forensic evidence that linked Ted to the shooting.
The bullet fragments recovered from Janet and from the Game Place should have been compared on the Integrated Ballistics Identification System through the state crime lab to determine if the weapon used in this homicide was ever used in another violent crime. If it were used after this incident, then it would be very strong evidence that another person was the actual killer.
Police believed the multiple gunshots reported by Ted, Christa and other witnesses were a result of echoes within the parking lot. However, there was nothing to indicate any efforts were made to verify this fact.
At the time of the investigation into Janet’s murder, I was a newspaper reporter for the Rockford Labor News. I found a bullet hole in a utility pole near Christa’s car, indicating that shots were fired in her direction, but police also ignored this. They claimed it could have been there for some time. The bullet hole indentation strongly supports Ted’s and Christa’s statements that the gunman fired at them after he shot Janet. This refutes the theory of Ted being the shooter. “Why would he run dodging bullets fired by himself?" I asked. I could find no police report of gunfire at Meadowmart Mall in previous months.
Inconsistencies at the Trial
In 1997, Ted Kuhl was sentenced to 40 years without any forensic evidence, no gun ever found, no motive ever substantiated, and a single eyewitness who changed his story 16 times as a matter of court record.
Several inconsistencies worked against Ted at the trial, many of them related only indirectly to the actual homicide investigation.
Age difference
Ted Kuhl was 48 at the time, 20 years older than Janet. The age difference worked against him in the trial. A Rockford attorney later said, “Juries typically do not like cradle-robber boyfriends, such as Ted was portrayed.”
Too Dark to See
Ricky testified he could see Ted from 50-feet away aiming a gun. This is highly unlikely. WROK radio news reporter, Fred Speer, who photographed the crime scene, said it was so dark he had to turn the headlights on to see the body from even five feet away.
I visited the parking lot at 1:26 a.m. (the time of the shooting) on a December night and stood approximately where Ricky said he was. I do not believe Mueller saw what he described unless he was much closer than he claimed to be.
Too Far Away
Fifty feet from the victim is also inconsistent with Forensic Doctor Larry Blum’s autopsy report. Stippling around the wound indicated the gunman fired from as close as six inches. That is consistent with what Christa saw before she dropped to the pavement to hide. She described the gunman standing in front of Janet. Janet screamed and turned her head toward Ted, so the bullet entered her right temple. Christa also saw Ted begin to run under gunfire.
At least three other witnesses at the scene saw the gunman and Ted simultaneously, but they could not agree on the description so their testimonies were laughed out of court.
The Wrong Color
Ricky Mueller also stated in court that Ted’s ball cap was white. In fact Ted wore a green ball cap that night. His attorney had the cap in the courtroom, but failed to call the discrepancy to the attention of the jury.
The funeral dress
Even though her story remained completely consistent, prosecutors treated Christa as a hostile witness, quickly identifying her as the “other woman.” They pointed out that she spent the night with Ted after Janet’s murder. They also suggested he bought the blue dress for Christa, which she wore to Janet’s funeral. Christa had a Visa receipt to prove she purchased the dress—not Ted—however this was not noted in court.
Not Enough Emotion
Ted’s calm demeanor worked against him at the trial. Janet’s mother, Sandy Ostrander, initially described Ted to me as “charming.” Sandy had been the one to introduce Ted to her daughter at a pizza bar in Loves Park.
Once police began to suspect him, she turned bitterly against Ted because, “He didn’t even cry at her funeral. Is that the way a man acts who is supposed to love Janet with all his heart?” The jury appeared to be suspicious of Ted’s lack of visible emotion.
Ted’s brother Monty Kuhl spoke with me. He said that both he and Ted were never outwardly emotional. They did not openly weep at their own mother’s funeral. Ted’s grief was very private, however Monty saw Ted’s tears during times they were together shortly after Janet’s death.
The Viet Nam Lie
Janet’s mother did not begin to suspect Ted until police began to listen to Ricky’s accusations. That’s when she accused Ted of being a pathological liar and pointed to a lie he admittedly told—that he had served in Viet Nam and saved other soldiers but could not save Janet.
This lie actually damned Ted in court, even though it had absolutely nothing to do with the murder investigation. Assistant State’s Attorney Weber used the Viet Nam lie to persuade the jury. He thundered, “Ted Kuhl lied from the beginning of this investigation and innocent men do not lie!”
Twenty years earlier, Ted had claimed he served in Viet Nam to impress a boss, and later to impress Janet’s pro-military father. Joe Lamb later mused, “Ted had told the Viet Nam lie for 20 years and he never killed anybody. If everyone who ever told a lie is guilty of murder, the prisons couldn’t hold them all.”
Missing From Police Reports
Unfortunately, Loves Park Police did not write in their reports that no gun was found in Ted’s or Christa’s vehicles. This worked against Ted at trial. The glaring omission from the reports prevented defense attorney Albert Altamore from having the grounds to argue that no gun was in the vehicles. Altamore was widely known as a DUI defense attorney at that time.
The omission also allowed Assistant State’s Attorney Glen Weber to create doubt in the minds of the jury: “Ladies and gentlemen, you know the gun had to be there.”
Both Christa’s and Ted’s vehicles were left inside the yellow crime-scene ribbon and driven the next day by an officer, who would have seen a gun if it had been lying on the floorboard or seat. But this was not permitted in court simply because it was not in the police reports.
I also had a statement directly from Loves Park Police Chief Lindberg that the vehicles were searched, but this was not admissible at trial.
Information withheld
Defense attorney Albert Altamore was never informed that Ricky Mueller had recanted a statement in which he claimed to hear Ted say he was planning to kill Janet. In a lost post-conviction relief appeal, defense Attorney Dan Cain asked, “How can anyone flip flop on such a damning statement? How can anyone forget that?”
At the appeal, Cain called the prosecutor to the stand. Attorney Mark Karner admitted withholding this information from the jury. Also present at the appeal, Ricky admitted he did not recall Ted ever threatening to kill Janet. He did not make eye contact with Ted, and kept his head down.
In spite of this, Chief Judge Michael Morrison denied Ted’s appeal. “The evidence shows that Janet was shot from very close, and by your own admission you had walked only three or four steps,” said Morrison. The judge ignored all the witness statements that a second man stood in front of Janet.
Cain later stated, “Any good trial lawyer knows that he could have turned the verdict on this point alone.”
Did political motivation play a part?
Both Loves Park Chief of Police Darryl Lindberg and the aspiring young assistant state’s attorney, Glenn Weber, were campaigning for career moves—Lindberg for mayor of Loves Park, and Weber for a judgeship. Without implying intentional wrongdoing on their parts, I view both of these two as strongly motivated to bring the murder case to a quick close.
All criminal justice professionals are motivated, and rightly so, to convict the guilty as well as to protect the innocent; however not to the extent that they overlook other strong possibilities in a murder case and bend the facts to fit their theory. Clearly, that is what happened. Investigators left so many other avenues unexplored, once they decided to prosecute Ted Kuhl.
Gang Related?
Defense investigator Joe Lamb believed the killing might have been a case of mistaken identity. Janet had a twin sister involved with a man known to associate closely with the Hell’s Angels gang. Lamb also believed the man in ball cap and bomber jacket, who was seen circling the parking lot, was the real killer. Lamb may have been able to prove it if he had lived just one more day. He had identified a gay male exotic dancer, who had moved to Chicago, as one of the men in the parking lot on the night of Janet’s murder. Lamb had scheduled an interview with the dancer, however Lamb died in his sleep of a heart attack the night before. That dancer’s name was buried with him, to my knowledge.
Significantly, I received correspondence from the leader of the Satan’s Disciples street gang, Johnny White, convicted two years after Janet’s death for the 1998 drive-by shooting death of Rockford woman, Paula Proper. Johnny White strongly implied that Ted is not the killer. His specific words included, “It was a very dark night in the parking lot (the night of Janet’s death). He also drew an outline of a hand on the paper and wrote across it, “The hand of the true killer.”
His letter drew my attention, because Satan’s Disciples were known to be at the crime scene on the night of the murder, documented by Joe Lamb. Loves Park police never questioned these gang members, though it is well known to police that gang members do commit drive-by shootings in order to move up in the gang.
Missing Evidence
Six video surveillance cameras, which actually may have filmed the shooting that night, went missing. Police somehow lost this potentially crucial evidence, and it has never turned up. Post conviction relief Attorney Cain asked, “Doesn’t that raise a red flag in any thinking person’s mind?”
Cain prepared seven significant issues for a second post-conviction relief appeal.These issues were never heard, due to a missed filing deadline by a matter of hours. At least one of these issues included the highly suspicious driver, Darrel D. Weichert, stopped by police, who was not wearing shoes or shirt, and had on a fake beard. It was 28 degrees that night. Why no shirt and no shoes and a fake beard on a freezing night just moments after a fatal shooting?
The barefoot man, Darrel Weichert, has a link to the victim's family. He was living with a Darla Fawcett at the time. Her relationship to Gary Fawcett is uncertain, as the family refuses to speak to me, however Janet's twin sister was living with Gary Fawcett and they had a two-year-old child. If Fawcett was not an actual member of the Hell’s Angels, he did have a key to their club building, according to Dan Johnson. Janet's twin and Gary Fawcett were said to be heavy drug users and Janet had been threatening to remove their child. Was that a motive for murder? People who knew and feared Fawcett said he was certainly capable of violence.
The Gunman
Other people have contacted me at the newspaper office since Ted’s conviction, one of them a woman, returning from a late shift. She said she saw a man running through her yard behind the Meadowmart shopping mall minutes after the shooting. According to her, the man carried a gun.
That gunman was not Ted Kuhl, (as police later suggested to me) because Ted was seated in the Loves Park squad car at the time. He never left the crime scene.
Ted was never alone in the parking lot. Where and when could he have hidden a gun in front of numerous witnesses at the scene?
The answer is, he could not.
Joe Lamb documented the time of gunfire from video surveillance cameras, which show a bullet striking a storefront glass. Ted had only 12 seconds to hide a gun, which nobody ever found. Lamb also conducted his own ballistics test and confirmed to himself that more than one shot was fired from where Janet’s body dropped. These shots were fired toward Ted and Christa.
No history of angry outbursts
I spent hours talking with Ted’s family and friends. All of them, including a next-door neighbor who has known him from childhood, his former wife of 18 years, Diana, and his son Jason, say Ted never had a single incident of violent behavior. In short, he was mild mannered and not given to outbursts of temper.
Ted was a Boy Scout leader, a hard working middle-class citizen and a law-abiding man with no previous criminal history. His employers, Albert and Roseanne Kunze at Johnstone Supply, were adamant that Ted did not kill Janet.
Psychologists say it is highly unlikely that a mentally stable man would suddenly exhibit a violent, murderous psychotic fugue immediately after kissing his girlfriend goodnight. Yet that is what police say happened—that he walked three or four steps, turned, and shot her without provocation or motive.
The Case for Ted Kuhl’s Innocence
Ted’s employers were so shocked at Ted’s arrest that they hired a pair of top-notch private investigators to look for the real killer.
A highly respected forensics scientist, Arthur Chancellor, was employed as an investigative consultant. He examined police reports and witness statements.
In his professional analysis, Arthur Chancellor states: “Minor personal conflicts between Ted and Janet were not violent or long lasting. Such personal problems or conflicts that evolve into motives for a homicide have traditionally come to the attention of family and friends over a period of time. If this were the case, it would be consistent and expected that family and friends would be able to identify specific times and events in the recent past when heated arguments, accusations, or even physical assaults occurred (as in the case of Howard Purcell who was known to attack his wife more than once before he was convicted of murdering her in Rockford's staircase-killer case). No family member or close friend ever identified such conflicts.”
Ted’s college-age son, Jason Kuhl, had in fact, just days before the homicide, spent Thanksgiving with Ted and Janet at Ted’s place. He said the three of them had truly enjoyable time together. He would have known had there been any animosity or friction between them.
In the words of Chancellor: “There is not enough evidence to convict Ted Kuhl of premeditated murder. I find no logical motive. I do not see any evidence of where the gun came from or where it went afterwards.
“I am struck by the dichotomy presented by police of Ted, ‘the intelligent murderer’ who is able to conceal a weapon all evening and then dispose of it in 12 seconds in front of witnesses. But at the same time, Ted stupidly picks a public place when he could easily have lured Janet to a private location and shot her without any witnesses.”
Chancellor also pointed to Ricky’s behavior immediately after the shooting as inconsistent with the behavior of someone in deadly fear of another. “Would Ricky hug Ted at the station and then ask Ted to go skeet shooting the next day if he honestly believed Ted was trying to shoot him or harm his family? Absolutely not.”
“I do not believe this was a crime of sudden passion. There are just too many inconsistencies. Christa, Ricky, and two additional witnesses (names withheld from reporters but furnished to Chancellor) observed the gunman who matched the description of the man in the bomber jacket waiting for someone inside.
“The last official contact available for my review is Christa's grand jury testimony. Transcripts document possible government misconduct, in that while they were waiting to testify, Christa and Ricky were placed in the same waiting room where Rick openly discussed his proposed testimony. Ricky specifically said he was going to testify that he actually saw Ted shoot Janet (something he later denied).
“Ricky’s startling claim coupled with Christa’s prior knowledge of Ted's so-called confession (which the police had told her during interviews) may have been an attempt to induce her to change her testimony or to be uncertain as to what exactly she observed that evening. However she remained steadfast, even though police repeatedly told her she was in denial and that her mind had blocked out painful details.”
After the trial, Christa actually went to a hypnotherapist to find out if she had indeed blocked details from her mind. She told the same consistent story under hypnosis—that she saw Ted run when an unknown gunman fired at Janet.
The Man in the Bomber Jacket
In Chancellor’s analysis of the crime, he states: “I see the time and location of the homicide as very inopportune.
“Waiting until Ted and Janet parted, appearing out of the dark, firing without leaving Janet a chance to defend herself, then shooting other rounds at the potential witnesses while leaving the scene, having a planned escape route and getting away unobserved—these are marks of premeditation. This is all consistent when the unknown man in the bomber jacket walking the lot is substituted as the gunman.
“None of it makes sense when Ted is considered the suspect. The most important aspect of the police interrogation is the fact that neither Ted’s oral admissions nor final written statement make any sense when compared to other evidence documented in this case. There is a legal maxim that roughly states a man cannot be convicted based on his confession alone. Yet in this case, it appears the only real evidence police have is what they were able to obtain through questionable interrogation techniques. That evidence basically consists of Ted’s and Ricky’s statements.”
Joe Lamb’s investigation led him to identify people associated with violent street gangs overlooked by the investigators. He believed one of them killed Janet. Lamb was not certain of the motive, but he believed the street gang certainly had stronger reasons for killing Janet than Ted Kuhl, who had none.
What Now?
Ted Kuhl remains in prison – convicted in 1997. His son, friends, and loyal employers continue to visit him. I made a visit to his prison only once, where I heard his story and was satisfied that he told the truth.
Ted has lost every appeal. He recently asked for a clemency hearing, which also was denied. He writes to me occasionally. He has indicated that he could plead guilty, ask for mercy, and perhaps be released, but that outcome is uncertain. His former employers, Albert and Roseanne Kunze, spent thousands of dollars in the hopes of overturning his conviction. They hired Joe Lamb and Arthur Chancellor at their own expense. Both highly respected investigators arrived at the same conclusion independently, that Ted is not guilty.
Ricky Mueller and his wife were later divorced. Mrs. Mueller absolutely refused to speak with me about the case. Her demeanor and bearing indicated she was terrified.
I have heard rumors from the streets suggesting that Ricky actually was threatened by street gang members and forced to say his best friend pulled the trigger. There is no way to prove this is true, but I would consider it more believable than Ricky’s story of fearing that his best friend would kill him for no reason.
I once interviewed a Loves Park bar bouncer known as Big Tiny, who had information linking a drive-by homicide with the Satan’s Disciples, (the leader of which wrote to me hinting he knew the real killer). Big Tiny has since died.
Janet’s mother, Sandy Ostrander, died of cancer a few years after Ted went to prison.
Ricky Mueller moved out of town and took a job in Freeport, Illinois. A former co-worker called the news office years after Ted’s conviction to say Ricky once tried to sell him a supposedly “hot” gun during the time of the investigation. This co-worker has since moved to Wisconsin.
Both Joe Lamb and I spent hours talking with Christa Peterson. She remained tormented by Ted’s conviction and the suggestion that she was having an affair with him. Her reasoning was: “Janet was like a sister to me. She slipped Christmas gifts under my tree so my kids would have surprises. We were going to California together. So even if it was true, and Ted had these two women who are still great friends, why would he need to kill one of us?”
Christa eventually moved out of town. I have no information on her whereabouts.
The young assistant state’s attorney and trial prosecutor, Glen Weber, lost his bid for a judgeship. He took a position in Jo Daviess County in northwest Illinois as state’s attorney. He was later dismissed due to allegations of official misconduct. I have a copy of the official document. A Rockford policewoman once said to me that Weber tried to coax her to lie on the stand. That officer has since died of cancer.
Weber was welcomed back to the Rockford court system and later worked for a respected legal firm in Rockford.
Chief of Police Darryl Lindberg was soon elected mayor of Loves Park where he has enjoyed a long career.
Illinois has a history of wrongful convictions. In January of 2003, then-Governor George Ryan commuted the sentences of 167 death row prisoners, calling the system “terribly flawed” after 13 death row inmates were exonerated by DNA evidence. That number grew to 151 nationwide while I was working on the Ted Kuhl case.
Since then, wrongful convictions have continued to be overturned by DNA evidence. Sadly, there was no DNA evidence in the Janet Nivinski homicide. Ted has very few options left. He will serve his 40 years if additional evidence does not exonerate him at some point in the future.
My book, Shadow in the Rain, a fictionalized re-telling of Ted’s story is available on Amazon.com.
The case of the Scottsboro Boys often seemed like one of dueling prejudices. Entrenched racism against blacks, anti-Semitism, the Madonna/Whore dichotomy, and regional stereotypes would all be on full display as the Scottsboro Boys grabbed headlines for well over a decade throughout the 1930s. It is a story of cowardice and heroism, of lies and manipulation, of fear and hatred, of caring and commitment, a story in which every facet of the human personality is seen in all its embarrassing weakness and glorious strength.
Few cases in the annals of American justice have had as far-reaching effects as the “Scottsboro Boys.” Through years of trials, convictions, appeals winding all the way up to the United States Supreme Court, and re-trials, the Scottsboro Boys case exposed the way sexual and racial tensions met and exploded in the Jim Crow South. It sent shock waves through the American psyche that reverberate to this day. Scottsboro helped fan the fires of the nascent civil rights movement. It also heightened conflict between that movement and other branches of the American left. While nine innocent youths grew to adulthood in the purgatory of prison, many people rose up to protest the injustice they had suffered and, in the process, move against the racism that made that injustice possible and perhaps inevitable.
The case of the Scottsboro Boys often seemed like one of dueling prejudices. Entrenched racism against blacks, anti-Semitism, the Madonna/Whore dichotomy, and regional stereotypes would all be on full display as the Scottsboro Boys grabbed headlines for well over a decade. It is a story of cowardice and heroism, of lies and manipulation, of fear and hatred, of caring and commitment, a story in which every facet of the human personality is seen in all its embarrassing weakness and glorious strength.
“The next time you want by, just tell me you want by and I let you by,” an irritated Haywood Patterson, 19, said to the white youth who had for the second time stepped on Patterson's hand. The black teenager hung onto the side of a freight train and the white teen was walking across the top of the cars.
The white youth responded with a racial epithet.
It was March 25, 1931 in the midst of the Great Depression and Patterson, like the white boy with whom he quarreled, was doing what many impoverished people, blacks and whites, usually men but sometimes women, did on freight trains: hitching a ride to get from one place to another for free. It was illegal to “hobo” on these trains but even train workers tended to look the other way during this desperate period. Patterson was accompanied by three close friends who, like himself, were from Chattanooga, Tennessee, and sought work in Memphis, Alabama. They were Eugene Williams, 13, and brothers Andrew and Leroy “Roy” Wright who were 19 and 13 respectively.
Patterson and the white boy exchanged insults and the latter shouted, “All you black bastards better get off!”
Racist protocol of the period dictated that blacks submit to whites but Patterson would not take guff from anyone. “We got as much right here as you!” he replied.
The train slowed at a steep grade. The white boy and his friends jumped off the train. They grabbed rocks and tossed them at the four black youths hanging off the sides of the cars. Patterson, Williams and the two Wrights took cover inside a freight car. The train stopped at Stevenson, Alabama, where Patterson and his buddies went off. They met up with some other black youths who planned to hop aboard the train. These black youths agreed to help Patterson and his friends if the whites confronted them again.
The white youths clambered back aboard the train, the blacks returned to it as well and the fight resumed. Soon the blacks got the best of it and began chasing the whites off the train.
By the time only one white, Orville Gilley, was left, the train had picked up speed and it was likely he would be severely injured if not killed from going off it. In Patterson's words, the blacks “took pity on him” and pulled him back into a car as he hung from a side.
The bloodied whites made their way to the Stevenson train station. They reported that a group of blacks had picked a fight with them and that they wanted to press charges against their attackers. The stationmaster got on the phone to alert authorities in the next Alabama town, Scottsboro. Those on the other end of the line said that the train had passed through a few minutes before and that its next stop was Paint Rock, Alabama.
Posse at Paint Rock
According to Dan T. Carter in Scottsboro: A Tragedy of the American South, Alabama Jackson County Sheriff M. L. Wann telephoned Deputy Sheriff Charlie Latham and told Latham to “capture every Negro on the train and bring them to Scottsboro.” Latham deputized a group who lined up along the Paint Rock train station. The train stopped and the posse went on board to search the freight cars.
The posse found nine black youths, a young white man named Orville Gilley, and, much to their surprise, two young white women decked out in men's caps and wearing overalls covering their dresses. The women were close friends Victoria Price, 21, and Ruby Bates, 17, who were returning home to Huntsville, Alabama. They had ridden to Chattanooga in search of mill work but failed to find it.
There are differing reports as to exactly when and under what circumstances an accusation of rape was made. It seems most likely that, as one of the reports recorded in Stories of Scottsboro states, a deputy asked the women “if the Negroes had bothered them.” Bates and Price knew that racist ideology held that black men would rape white women at the first opportunity and that the officers questioning them believed the arrested men had enjoyed such an opportunity. They probably also feared that they themselves might be arrested for illegally riding the train.
The women gave the answer that they probably believed was expected: “Yes.”
The flames of fear
The blacks were taken to jail, initially under the impression that they were being charged for the brawl. In addition to Patterson, Williams, and the Wrights, were five others, all strangers to the four friends and to each other.
Charlie Weems at 20 was the only one out of his teens. Clarence Norris and Ozie Powell were older teenagers. There were also two youths who had taken no part in the brawl. They were Olen Montgomery, blind in his left eye and possessing partial vision in his right, and Willie Roberson, afflicted with advanced syphilis and gonorrhea that had caused his genital area to painfully swell, who walked with a cane.
When the group arrived in Scottsboro, Sheriff Wann sent Ruby Bates and Victoria Price for a medical examination.
The rape accusations led a mob to assemble in front of the jail. Sabrina Crewe and Michael V. Uschan write in The Scottsboro Case, “some 500 angry white people gathered around the jail in Scottsboro.”
The accused, who would become known as the “Scottsboro Boys,” were not the only ones behind bars for the alleged rapes. As James R. Acker reports in Scottsboro and Its Legacy: The Cases That Challenged American Legal and Social Justice, “Price, Bates, and the several white boys who had been on the train and had fought with the blacks, were all held in the Scottsboro jail as material witnesses.”
Southern white women: genteel ideal vs. often grubby reality
The South idealized white women as pure and genteel. The reality could be far removed from that ideal. James Goodman in Stories of Scottsboro notes that Ruby Bates and Victoria Price “lived with their mothers in unpainted shacks in the worst sections of town.”
Ruby Bates's mother, Emma, had picked cotton and taken in laundry. Ruby's hard-drinking, violence-prone father also picked cotton. Emma fled more than once from her husband. She worked for awhile in a Huntsville mill but was unemployed and widowed by 1931. Ruby was her sole support.
Victoria Price's mother had worked in a mill until left disabled by a fall. Like Ruby, Victoria was the sole support of both herself and her mother. Bates and Price were what most Southerners reviled as “white trash” – until they accused blacks of raping them. In their alleged violation, they became martyrs to many whites. Price would come to relish her new role.
Sadly, the lies were soon supported by one of the accused. As Carter wrote, “Roy Wright – when accused by Orville Gilley in the presence of newsmen – began insisting that he and his three friends were innocent; the other five had assaulted the girls.”
A dodderer and a drunk for the defense
Most local attorneys did not want to be associated with blacks accused of raping white women. Lawyer Milo C. Moody agreed to represent the Scottsboro Boys, perhaps because the 69-year-old no longer had much business. Carter quotes an observer describing Moody as “doddering.” In Chattanooga a leading black physician, Dr. P. A. Stephens, summoned a group called the Interdenominational Colored Ministers' Alliance and they raised $50.08 for the defense. Even in 1931, it was a small sum for an attorney's retainer but Dr. Stephens and the Alliance found a taker in attorney Stephen R. Roddy. Like Moody, Roddy's skills were modest. Drinking often hampered what skills he had. Retainer in hand, he headed for Scottsboro.
Trials of all nine defendants began April 6, 1931.
Judge Alfred E. Hawkins presided. Circuit Solicitor H. G. Bailey prosecuted. For reasons not clarified at the time, Bailey moved to have the trials separated as follows: Clarence Norris and Charlie Weems tried first; Haywood Patterson tried second; Olen Montgomery, Ozie Powell, Willie Roberson, Andy Wright and Eugene Williams fourth; Roy Wright tried last.
Hawkins granted this motion and the trial of Norris and Weems started that same day.
Alabama law at the time limited jury service to a county's “male citizens” between the ages of 21 and 65. It did not state that jurors had to be white but the entire jury pool was white.
Victoria Price gave her testimony in a straightforward but flamboyant manner. Acker records, “She testified that she and Ruby Bates had traveled from their hometown of Huntsville, Alabama to Chattanooga on Tuesday, March 24. They spent the night with Mrs. Callie Brochie, a friend of [Victoria's] who lived in Chattanooga on Seventh Street. When their search for a mill job proved unfruitful, the two women hopped a freight train to return home shortly before noon on the 25th.” She described a fight breaking out between black and white youths on the train and the whites, except for Gilley, being tossed off.
“Are you going to put out?”
Then she got to Clarence Norris. Price said he had demanded, “Are you going to put out?”
She testified she replied, “No, sir, I am not.” Then six of the defendants overpowered her. For what seemed like hours, she elaborated, six men – Weems, Norris, the Wrights, Patterson, and Montgomery – raped her. In an attempt to appeal to the common sentiments of the day against women with non-marital sexual experience, Roddy tried to cast doubt on Price's testimony on cross-examination by showing she had been promiscuous. Bailey objected and Judge Hawkins sustained.
Bailey called Dr. R. R. Bridges, one of the physicians who had examined Price and Bates within an hour and a half after the alleged attacks, to the stand. Bridges testified that he had found only a few small bruises and scratches on her. “She was not lacerated at all,” he said. “She was not bloody, neither was the other girl.”
Bridges said he had found semen in Price's vagina but that the spermatozoa in it was “non-motile,” meaning it was no longer alive. The significance of this would not be clarified in this trial. In answer to a question from Bailey, Bridges said it was “possible” that Price and Bates had been raped.
Dr. Marvin Lynch testified that there had been a fair amount of semen in Bates's vagina but a very small amount in Price's. He testified that, “the vagina was in good condition on both of the girls. There was nothing to indicate any violence about the vagina.”
Although neither Weems nor Norris was charged with raping Ruby Bates, the prosecution wanted her to corroborate Price's story.
On the witness stand, Bates’s demeanor contrasted sharply with that of Price. Bates appeared nervous and often hesitated before replying to questions. Bates supported her friend's testimony in basics. Acker reports, “She confirmed Price's testimony that the two young women had spent the previous night at Mrs. Brochie's house on Seventh Street in Chattanooga and had sought jobs in a mill.”
Weems, Norris – and a disaster
The defense called Charlie Weems to the stand. The youth appeared sure of his answers as Roddy questioned him. Weems recalled how Patterson had claimed some white boys had started a fight and Weems agreed to help the blacks. Then Bailey cross-examined Weems. Carter writes, “In rapid succession, [Bailey] fired question after question . . . But Weems held his ground.”
Roddy and Moody put Clarence Norris on the stand. Carter describes Norris as “fidgeting” as he testified.
Bailey cross-examined and Norris appeared to panic. To the horror of defense counsels, Norris testified that “every one of them have something to do with those girls after they put the white boys off the train.” Norris described a gang rape but claimed he alone was innocent.
A flustered Roddy requested a recess. Judge Hawkins granted it. Roddy offered to plead not only Norris but Weems as well guilty in exchange for a sentence of life imprisonment instead of death. Bailey refused the offer.
Under re-direct-examination, Roddy tried to undo the damage. He showed that Norris claimed to not know whether Price and Bates had worn dresses or overalls. Roddy drew forth the admission that he had recently claimed he had seen no rape but Norris stuck to his new story claiming that not only Weems but all the others accused had raped the women while insisting: “I did not.” After a brief but dramatic trial, the defense rested in despair.
As the jury retired to deliberate the fates of Norris and Weems, the trial of Haywood Patterson began before an all male, white jury. Price was as confident as she had been at the previous proceeding. Ruby Bates was again nervous and hesitant.
As Bates left the stand, the bailiff informed Hawkins that the Norris and Weems jury had reached a verdict. The Patterson jury was escorted into the jury room.
The foreman of the Norris and Weems jury announced, “We find the defendants guilty of rape and fix their sentence at death.”
“The announcement spawned a raucous celebration in the courtroom that quickly spilled into the street,” according to Acker.
At Patterson's trial, Dr. Bridges gave essentially the same testimony he had at the previous trial. The prosecution did not call Dr. Lynch.
The defense called Patterson to the stand. Patterson recalled how he and his friends had hopped the freight train to Memphis in hopes of finding work. Under cross-examination, Patterson appeared to fall apart. Like Norris, Patterson apparently panicked and thought he could save himself by implicating others. He testified he had seen five of the defendants rape Price but he and his three friends had not. Within minutes, he contradicted himself by saying he had never even seen the females while he was on the train. “I did not see the girls in there,” he insisted. “I did not see any girls in there until we got to Paint Rock.”
Roddy called 13-year-old Roy Wright to the stand. He described the fight and how the whites were forced off the train except for Orville Gilley.
Then Roy Wright, like Norris before him, dropped a bomb on the defense. He testified to seeing the accused – save for himself, his brother Andy, and his friends Williams and Patterson – “down there with the girls and all had intercourse with them.”
Roddy and Moody did not make a summation. The prosecution made a brief one, the judge instructed the jury on the law, and Patterson's case went to the jury.
Five on trial
As a jury pondered Patterson's fate, Ozie Powell, Willie Roberson, Andy Wright, Eugene Williams, and Olen Montgomery went on trial, once again before an all white, male jury.
“It was easy to see why the solicitor had postponed these cases until last, as they presented a number of problems,” Carter wrote in his book.“In the first place, each defendant so far had told a relatively plausible story and had held to it through cross-examination. Norris, Weems, and Patterson had all been positively identified by Victoria Price, the state's star witness. In this trial, however, it was up to Ruby Bates to point out at least three of the defendants.”
Additionally, Roberson's advanced venereal diseases had left his genitals painfully swollen and Montgomery had limited vision. Both conditions would make it difficult to rape.
Price testified that the first man “to put his hands on me” was the man “with the sleepy eyes, Olen Montgomery.” Montgomery had raped her while Williams held an open knife above her and Roberson held her legs open. Others ran excitedly about shouting, “Pour it to her! Pour it to her!” Price firmly stated that Montgomery, Andy Wright, and Williams had raped her and that she had seen Powell and Roberson rape Bates.
Word came that Patterson's jury had reached a verdict after deliberating for only twenty-five minutes. Judge Hawkins ordered the jury for the present trial out of the courtroom. The Patterson jurors trooped in. The verdict was read: Patterson was guilty and sentenced to death.
The trial of Powell, Roberson, Andy Wright, Williams, and Montgomery resumed, with the state calling Bates to the stand. As usual, she was shaky. However, she did testify that she and Price had been to Chattanooga in search of work and spent the night at Mrs. Brochie's establishment. When talking about the alleged events on the train, Bates testified that the defendants, armed with both knives and guns, had barged into the gondola in which she and Price were riding.
Dr. Bridges went through the same evidence he had given in the two previous trials. Bridges testified that Roberson's sex organ had been “very sore” so that intercourse would inevitably be “attended with some pain” but speculated it would still be “possible.”
The defense called Roberson to the stand. He testified he had been on the freight train to seek help for his illnesses in Memphis. Acker reports that Roberson testified to getting into an empty boxcar toward the end of the train. He said he had not even known about the fight and could not have committed rape. Acker quotes Roberson as testifying, “There was something the matter with my privates down there; it was sore and swelled up . . . I am not able to have sexual intercourse.”
Andy Wright testified to the fight but claimed innocence even of that. Carter describes Bailey's cross-examination as “brief and fiery.” Bailey asked, “Did you not tell her after the rape, 'Yes, you will have a baby after this?'”
Andy Wright replied, “I did not have any such talk as that; I swear that I was not in that car where the women were.”
Regardless of Andy Wright's denials, the scenario Bailey suggested had to have a powerful emotional impact on the jurors. It brought up the universal specter of the horror of rape being extended by the victim's pregnancy and, equally horrifying to a jury of the time period, the specter of a white woman giving birth to a black baby.
Montgomery testified, “If I had seen them, I would not have known whether they were men or women.”
For the first time in any of the Scottsboro Boys trials, Orville Gilley testified. “I saw those five in the car,” Gilley stated. “I saw every one of those five in the gondola.” He was asked if Price and Bates were there as well and he replied, “Yes, sir.” Acker writes that Gilley “offered nothing to confirm that the women had been raped and he was asked no questions on cross-examination.” After a trial lasting one day, the case went to the jury.
One defendant had yet to be tried: Roy Wright. He was 13 and, as Carter reports, “Under Alabama law he could be tried only in a juvenile court unless the state brought waiver proceedings.”
On April 9, 1931, the jury for the other five announced its verdict: guilty. It recommended death for each.
Despite the prosecution having asked for only life imprisonment for the 13-year-old Roy Wright, seven of his jurors wanted to sentence him to death. After being told the jury was deadlocked, Judge Hawkins declared a mistrial.
Later that same afternoon, Judge Hawkins, with tears in his eyes, sentenced the other eight defendants to die.
Letters poured into Governor Miller's office asking for mercy and the Alabama Interracial Commission met in Birmingham to pass a resolution demanding a “careful review of these cases in the courts.”
Communist and NAACP tug of war
Perhaps the most important communications received by both Judge Hawkins and Alabama Governor Miller were telegrams demanding a “stay of execution and opportunity to investigate and prepare for a new trial” that were signed by the International Labor Defense (ILD), the legal arm of the Communist Party, U. S. A. Its chief lawyer was Joseph Brodsky.
The case also attracted the attention of the National Association for the Advancement of Colored People. The organization was then headed by Executive Secretary Walter White who, like other NAACP officials, was alarmed by the communist entrance into the case. Acker writes, “The NAACP accused the ILD of exploiting the case for propaganda purposes and being willing to make martyrs of the Boys to advance its political agenda.” The ILD recruited respected attorney George W. Chamlee Sr. to take over the case.
Soon Brodsky headed to the Birmingham jail where he spoke with the Scottsboro Boys. Brodsky told them that the ILD wanted to do everything possible to save them. Then he asked them to sign an affidavit giving the ILD control of their cases. Impressed by the man's apparent sincerity and absence of racial prejudice, Andy Wright signed and the others, who were unable to write their own names, placed their marks on the document.
Upon learning of this agreement, Walter White sent word to Dr. P. A. Stephens, a member of the Chattanooga Negro Ministers' Alliance, telling him that the Chattanooga Negro Ministers' Alliance must be made aware of the communist philosophy of the ILD and that the Boys must be persuaded to cut the connection. Stephens convened a meeting of the alliance in which he informed them of the nature of the ILD and then contacted Roddy.
Roddy drove to the Birmingham jail for a chat with the Boys. Roddy told them that the ILD could do them more harm than good and they signed a statement Roddy had prepared telling the ILD to leave the case.
Acker writes that there were “months of wrangling and altering allegiances” that left the Boys “bewildered.” He continues, “After a last-ditch effort, negotiations broke down . . . the NAACP bowed out of the case.”
ILD: No fair trial
The ILD attorneys went before the Alabama Supreme Court on January 21, 1932. Brodsky argued that the juries were not composed of “peers” of the defendants since blacks had been excluded. Brodsky also argued that biased newspaper accounts together with the presence of crowds obviously hostile to the defendants had made a fair trial impossible. Finally, Brodsky told the court that Roy Wright should have been tried in a juvenile court because of his age.
Chamlee argued that defense counsel had been inadequate.
Alabama Attorney General Thomas G. Knight Jr. argued for the state. It would seem that he had an advantage in arguing before the Alabama Supreme Court because one of the sitting justices on it was his father, Justice Thomas Knight Sr.
“Why should we assume that the gathering of a curious mob would have influenced the jurors and judge of the trial court?” Knight asked.
The Alabama Supreme Court upheld the convictions of all defendants except Eugene Williams, who was granted a new trial because he was a juvenile when first tried and should have been tried in a juvenile court. (Instead of getting a new trial, Williams was left to languish in jail for six years before being released in 1937.)
Justice Thomas Knight Sr. wrote of the argument that the Scottsboro Boys had not been denied a fair trial because blacks were excluded from the state's juries: “The State of Alabama has the right, within constitutional limitations, to fix the qualifications for jurors.”
After this defeat, the ILD engaged Walter Pollak, a lawyer known for his acumen in constitutional law. On May 27, 1932, Pollak presented preliminary arguments to the United States Supreme Court and the highest court in the land agreed to review the Scottsboro Boys case.
Pollak made the same arguments before the U.S. Supreme Court that Brodsky and Chamlee had previously made before the Alabama Supreme Court.
On November 7, 1932, the U.S. Supreme Court overturned all Scottsboro convictions, without addressing the exclusion of blacks from juries. It made its decision solely on the grounds that the defendants had been denied adequate counsel. The ruling stated that the “due process” clause of the 14th Amendment meant that inadequate counsel rendered a trial unfair.
To continue fighting the good fight, the ILD approached Samuel Leibowitz, a New York City attorney who was widely considered one of the top legal talents in the country, second only to Clarence Darrow in reputation. The ILD told this usually expensive lawyer that it would not be able to pay him any fee at all and asked him to take the case for humanitarian reasons. Leibowitz agreed to defend the Scottsboro Boys without payment because, he said, the case “touches no controversial theory of economy or government, but the basic rights of man.”
On March 13, 1933, Leibowitz arrived in Alabama and took over leadership of the case.
Knight encountered a worry as he prepared for trial: the Huntsville police could not find Ruby Bates. Her mother said Ruby left the family home on February 27, 1933. While Bates was a much weaker witness than Price, the prosecution still regarded Bates's testimony as vital. However, that testimony had been thrown into question by events earlier in the year.
As Carter reports, “On January 5, 1932, Huntsville police had arrested Miron Pearlman . . . on a routine charge of drunkenness. When they searched the ex-prize fighter, however, they found a letter which caused consternation from Scottsboro to Montgomery.” It was a letter written by Ruby Bates to a boyfriend. Bates wrote, in part, “. . . is a goddam lie about those negros jassing me . . .”
Pearlman told police that Chamlee had paid Pearlman to get Bates drunk and talk her into writing a letter claiming she had not been raped. Police found Bates. She signed an affidavit disavowing the letter: “I was so drunk that I did not know what I was doing.”
The new trial of Haywood Patterson opened March 27, 1932, with Judge James E. Horton Jr. presiding.
“You're a pretty good actor yourself”
For the fifth time, Price dramatically told her story of rapes. She identified Patterson as one of those who had attacked her.
In preparation for his cross-examination of Price, Leibowitz had asked the Lionel Corporation to build a replica of the train. The attorney asked Price if the replica resembled the fateful train.
Price replied, “That is not the train I was on. It was bigger, lots bigger. That is a toy.”
In answer to a question from Leibowitz, Price stated she was bleeding from her vagina after the rapes.
Leibowitz returned to her previous statement that she had stayed at the boardinghouse of Callie Brochie the night before being on the train. He questioned her closely about exactly where that establishment was located. Was it two miles from the train yard? “No sir, I wouldn't say two miles,” she answered.
When Leibowitz remarked that she was “a little bit of an actress,” Price retorted, “You're a pretty good actor yourself.”
A man named Lester Carter
Leibowitz questioned her on her activities on the day prior to the incident. “Do you know a man by the name of Lester Carter?” Leibowitz inquired. She said she knew that he was thrown off the train but had not known him prior to that.
Leibowitz's manner showed that he considered this of crucial import. He said, “Mrs. Price I . . . want to ask you that question again and give you an opportunity to change your answer if you want to. Did you know Lester Carter before that day, yes or no?
For the first time, Price appeared anxious. “Before in Scottsboro – he – was on the train.”
Leibowitz pressed, “Before this day on the train did you know Lester Carter?”
“I never did know him,” she replied.
Leibowitz then turned to the subject of Jack Tiller. In 1931, Victoria Price had been convicted in Huntsville, Alabama of fornication and adultery with the married Tiller. Both had been fined and sentenced to a short stint in jail. Leibowitz asked, “Did you have intercourse with Tiller a short time before you left Huntsville?”
Price denied it.
Leibowitz queried her about the woman who owned the boardinghouse where she had claimed to stay the night previous to getting on the train. The lawyer said, “The name of Mrs. Callie you apply to this boarding house lady is the name of a boarding house lady used by Octavus Roy Cohen in the Saturday Evening Post series – “Sis Callie,” isn't that where you got the name?” Knight instantly objected and Judge Horton sustained the objection.
Dr. R. R. Bridges again took the stand. Knight questioned him and he repeated his previous testimony about finding semen in Price's vagina. Leibowitz then asked him about Price and Bates’s physical condition. The physician testified that neither woman had dilated pupils and each had normal pulse and respiration – readings unlikely just an hour and a half after suffering gang rape. Dr. Bridges also testified that the sperm in the women were non-motile and that sperm usually remains motile in the vagina from 12 to 48 hours after being deposited in the vagina – thus making it unlikely, if not impossible, that the semen in the women was the result of intercourse less than two hours prior to the examination. He also said there was no bleeding from Price's vagina.
The second physician to examine Price and Bates after the alleged rapes, Dr. Marvin Lynch, was scheduled to take the stand, but before calling him, Knight asked for a recess to confer with Judge Horton. The recess was granted and Horton, Knight, and Lynch met in another room in the courthouse.
Carter writes, “When Knight and the other lawyers for the state returned to the courtroom, however, the doctor asked Horton if they could meet privately.” They did. Carter continues, “The young doctor, who appeared unnerved and agitated, went straight to the point. Contrary to Knight's statement, said Lynch, his testimony would not be a repetition of Dr. Bridge's, because he did not believe the girls had been raped.”
Horton exclaimed, “My God, doctor, is this whole thing a horrible mistake?”
The judge urged Dr. Lynch to testify but the doctor cowered and said, “If I testified for those boys I'd never be able to go back into Jackson County.” Horton excused him.
When Leibowitz began the defense portion of the trial, he led off with a witness who would contradict Price's testimony about having spent the evening before the train ride in a boardinghouse.
Dallas Ramsey, who lived near the Chattanooga railroad yards, testified that on the morning of the alleged rapes, he strolled through a wooded area near his home and saw two women. Later that same morning, Ramsey claimed to have seen the two women and a man board a freight train. Leibowitz indicated Price and asked if this was one of the women Ramsey had seen. “Yes sir, I recognize her,” the witness replied.
Chattanooga gynecologist Dr. Edward A. Reisman testified. “To my mind it would be quite inconceivable that six men should have intercourse with one woman and not leave telltale traces of their presence in considerable quantities in the vagina.”
Then Leibowitz gave an explanation for the small amount of semen that had been found in Price by calling Lester Carter to testify. Carter told the jury that he had been in the Huntsville County Jail for vagrancy in January 1931 where he met Price and Tiller who were serving time for adultery.
After Carter's release, Price arranged a date between Carter and Bates. On the evening of March 23, 1931, the four met up together. In a wooded area known as a “hobo jungle,” Carter claimed, “I had intercourse with Ruby Bates and Jack Tiller had intercourse with Victoria Price.”
Carter testified that he rode a rail headed to Chattanooga as did Bates and Price. The three encountered a man who said his name was “Carolina Slim” but whose real name was Orville Gilley. Now a group of four, they found their way to a hobo jungle where Carter again enjoyed sexual intercourse with Bates. He did not know for sure what, if anything, Price and Gilley might have done. Just as the defense rested, Leibowitz received a surprise that would result in a genuine shock for the rest of the people assembled in the courtroom.
Ruby Bates - witness for the defense
A messenger handed Leibowitz a note. Upon reading it, Leibowitz approached Judge Horton. The defense attorney requested a recess that was granted. When the court reconvened, Leibowitz called Bates to the stand. Bates appeared nervous, as she had in her prior courtroom appearances. This time, though, she was better dressed than she had been in those appearances. Leibowitz got right to the point. On the evening of March 23, 1931, he asked, “Did you have intercourse with Lester Carter?”
“I certainly did,” Bates replied, her answer forthright but her demeanor subdued.
Did Price have sex with Jack Tiller in Bates's presence? “She certainly did,” Bates testified.
Leibowitz asked if rape had taken place on the freight train. Bates replied that she had not been raped and that she did not believe Price had been either and that the two of them had been together throughout the train ride.
Bates related how she had left Huntsville for Montgomery after that fateful train ride. She hitched a ride to New York. Her conscience gnawed at her because of the lies she had told. She heard of a famous Christian minister who resided in New York named Dr. Harry Emerson Fosdick. Bates mispronounced his name as “Fostick.” She arranged a visit with him and he urged her to return to Alabama and tell the truth.
Knight began cross-examination by taking note of the witness's obviously improved wardrobe. “Where did you get that coat?” the prosecutor asked. Bates mumbled, “I bought it.”
He demanded to know where she got the money to buy it and she answered, “I don't know.”
“You don't know?” Knight mocked. “Where did you get that hat? Who was the beneficent donor?”
The judge asked her more gently, “Do you know?”
Bates said, “Dr. Fostick of New York.”
Wade Wright gave the summation for the prosecution. He urged the jury to “show them that Alabama justice cannot be bought and sold with Jew money from New York!”
Leibowitz leapt to his feet. “I move for a mistrial,” he said. “I submit that a conviction in this case won't be worth a pinch of snuff in view of what this man just said.”
Judge Horton rebuked Wright for what the jurist characterized as an “improper” remark but denied the motion for a mistrial.
In the defense summation, Leibowitz pointed out how evasive Price had often seemed. He discussed the testimony of Dr. Bridges and Dr. Reisman and insisted that their statements indicated it was physically impossible for Price and Bates to have been raped. He said that Carter's testimony easily explained the small amount of semen found in the vaginas of the two alleged victims and urged the jury to accept Bates's recantation.
Leibowitz tried to undercut the appeal to anti-Semitism that Wright had made with his “Jew money” comment. “I'm not getting a fee in this case and I'm not getting a penny toward expenses,” he said.
The trial had lasted two weeks. Carter describes the case as going “to the jury just before 1 p.m.” on a Saturday and the jury sending word at 10 a.m. on Sunday that they had reached a verdict. They found Patterson guilty and sentenced him to die.
“Those bigots whose mouths are slits”
Leibowitz was understandably upset. In an interview with a reporter he lashed out in a manner guaranteed to arouse the resentment of Southerners in general. The perplexed reporter asked him how the jury could have come to the decision it did and Leibowitz replied, “If you ever saw those creatures, those bigots whose mouths are slits in their faces, whose eyes pop out like a frog's, whose chins drip tobacco juice, bewhiskered and filthy, you would not ask how they could do it.”
Offense to this comment was widespread throughout the South with the Montgomery Advertiser representative of many publications in deriding the attorney as the “voice of bigotry.”
When court convened on April 18, Judge Horton criticized Leibowitz's statement as a “millstone around the necks of the defendants.” He cited it in postponing the trials of the other Scottsboro Boys until there was time for the offense caused by it to subside.
“Women of the character”
Judge Horton reconvened court on June 22, 1933 for what was expected to be Patterson’s formal sentencing. He discussed the major points of Price's story and pointed out that if she were telling the truth, there should have been independent corroboration for many parts of it. For example, an hour and a half after a rape by six men, one would expect to find large quantities of semen in the vagina and that the sperm would be motile. Price had also testified that her vagina was bleeding after the attack.
Yet doctors had found only a small amount of semen and non-motile sperm. They had found no vaginal bleeding. Thus, Judge Horton concluded, “this woman was not forced into intercourse with all of these Negroes upon that train, but that her condition was clearly due to the intercourse that she had had on the nights previous to this time.”
Unfortunately, Judge Horton did not rest his conclusions simply on the absence of physical evidence to support the rape allegations. In a case rife with dueling prejudices, he buttressed his decision with the ancient Madonna/Whore dichotomy. He said, “History, sacred and profane, and the common experience of mankind teach us that women of the character shown in this case are prone for selfish reasons to make false accusations both of rape and of insult upon the slightest provocation or even without provocation for ulterior purposes.”
The judge vacated the jury’s verdict and ordered a new trial for Haywood Patterson.
While Horton can be faulted for his stereotyping of uneducated, lower-class women, he showed himself to be a judge willing to put principle ahead of his own career. This unpopular decision would doom him to defeat when he ran for re-election the next year in 1934.
After Horton vacated Patterson’s verdict, state officials put the Scottsboro cases under the jurisdiction of Judge William Washington Callahan.
In November 1933, Haywood Patterson went on trial yet again.
Judge “Speedy” Callahan
In Judge Callahan’s conduct of the trial, he often appeared decidedly unsympathetic to the defense. Callahan had long been a well-respected jurist but he was also one who had, as Carter notes, “Very fixed ideas about how trials should be conducted.” Carter elaborates that Callahan had told friends he wanted to “debunk the Scottsboro case” because he felt that it had simply been over-publicized and received more attention than it deserved.
He made it clear that he wanted the trial to progress at a smart pace. Before the trial proper, as Leibowitz questioned prospective jurors, the judge told him to “hurry it along” and sometimes cut his questioning short with “that's enough on that.”
An all-white, all-male jury was seated and the prosecution brought Victoria Price to the stand to once again tell her story, which she did with her usual aplomb.
On cross-examination, Leibowitz tried to lay the foundations for the contention that semen in Price's vagina had been from previous voluntary intercourse. Leibowitz queried Price as to who she had been with on the train to and from Chattanooga.
An irritated Callahan sternly warned Leibowitz, “I can't allow the time of the court wasted on matters so immaterial. You mustn't ask that question again.”
With much of the defense case effectively gutted, Leibowitz valiantly pushed forward to try to trap Price in contradictions.
As Carter reports, “At Scottsboro and before Judge Horton she insisted Norris had tried to hurl her from the train; now she was first certain and then 'pretty sure' it was Patterson. Although she had vividly testified of a '.45 caliber pistol' held by Patterson, she finally acknowledged under cross-examination that she did not know one gun from another. She recalled that it was Patterson who fired the gun, although she could not remember that at Scottsboro, less than two weeks after the incident. She became hopelessly confused about where she was struck, or how hard, or how seriously.”
Orville Gilley, traveling poet
The prosecution called Orville Gilley. Like both alleged victims and defendants, Gilley spent much of his time going from place to place on freight trains. However, he asserted that he was no run-of-the-mill hobo. “I am an entertainer,” he proudly testified. “I recite poetry and take up a collection after I finish, in hotel lobbies, restaurants, out on the streets, any place.” Gilley backed up Price's story.
Leibowitz cross-examined Gilley on events prior to the alleged attacks. Gilley said he and Price had been together in Chattanooga but Callahan cut off the line of questioning.
Then Leibowitz pointed up something odd about Gilley's story: that he testified to witnessing these horrors and doing nothing about them. Gilley admitted that at “no time while this raping was going on did I ever make any attempt to notify any engineer, or any officials of that train what was going on in this gondola car.”
The defense badly wanted Ruby Bates to testify to her recantation but was forced to make do without her because she was in the hospital.
At this trial, for the first time, the prosecution did not call either doctor who had examined Price and Bates in the aftermath of the alleged rapes.
So when the defense commenced, Leibowitz called Dr. Bridges to the stand on November 28 as a witness. The doctor testified that there was “no blood at all” dripping from Price's vagina. He continued, “I saw no blood on her face or her forehead.”
In summation, Prosecutor Bailey conceded that Price and Bates were not the sort of women that most Southerners idealized. He argued that these impoverished women were to be respected for seeking honest, humble work rather than “to rouge their faces and stand on the street corners.” Bailey ridiculed the defense suggestion of a frame-up and appealed to the jurors' sense of local pride.
In the defense summation, Leibowitz once again tried to appeal to distaste for women who engage in non-marital sex. He claimed he would not be defending the accused had the accusations been brought by a “decent, respectable, Southern white woman.” However, he said that Price was a “lewd woman” and a “girl tramp.”
He discussed the conflict between Price's testimony and that of Dr. Bridges and asked, “Who's on the level in this case, this doctor or Victoria Price?”
The jury retired to consider the fate of Haywood Patterson. Within minutes, the court was filled with white, male prospective jurors for the trial of Clarence Norris.
The next day, Patterson's jury returned with its verdict: “We find the defendant guilty as charged in the indictment and fix his punishment at death.”
The dedicated Leibowitz keeps trying
The next trial of Clarence Norris began before Judge Callahan and an all white, male jury. The dedicated, unpaid Leibowitz plugged away. Carter writes that when Price “testified that she was struck in the face with the butt end of a pistol, Leibowitz borrowed one of the deputy's pistols, handed it to her, and demanded to know which was the butt end and which was the muzzle. She stared at it for a moment and then mumbled that she did not know; the only thing she knew about pistols was what she had 'been told.'”
Repeatedly Leibowitz sought to bring out Price's sexual history and just as repeatedly Judge Callahan blocked that line of questioning even when it concerned extremely recent history directly relevant to the semen doctors had found in her after the alleged rapes.
On December 6, 1933, the jury returned with its expected verdict and sentence: Norris was convicted and sentenced to death.
Judge Callahan sentenced Patterson and Norris to be executed on February 1, 1934 but the appeals Leibowitz filed soon after automatically gave them stays.
As appeals wound their ways through the higher courts, Leibowitz found himself reeling under an unexpected blow. As Carter put it, “Two ILD attorneys had been caught red-handed trying to bribe Victoria Price.”
In June 1934, a man named J.T. Pearson, claiming to represent Victoria Price, wrote to ILD officials that Price might retract her accusations for a payment. Using the alias Daniel Swift, Samuel Schriftman, an attorney associated with the ILD, began negotiating with Pearson.
Pearson had not actually been working with Price’s knowledge or her behalf but he knew how to get in contact with her and did so when the ILD told him she could get $500 for recanting. When Pearson relayed this offer to Price, she refused it. Without telling Pearson about it, she contacted Huntsville police and reported the attempted bribery. They advised her to play along.
In late September, Pearson offered her $1,000. She appeared to accept.
Schriftman and Brodsky associate Sol Kone arranged to meet Price in a Nashville hotel where the pay-off was to take place. Carrying a briefcase filled with $1,500 all in $1 bills, Schriftman and Kone flew to Nashville. They may have taken along $500 more than was agreed upon because they thought Price could attempt some last minute dickering.
Pearson picked up Price in a car and they headed for Nashville. On the way to that city, police forced Pearson to the side of the road and arrested him. At the same time, other police arrested Schriftman and Kone.
Meeting up with Brodsky, Leibowitz raged that the ILD had “assassinated the Scottsboro Boys with that sort of business.”
Leibowitz and ILD tug of war
When Leibowitz denounced the ILD, they fired him.
The committed Leibowitz believed only he could rescue the Boys from being executed and was determined to hold onto the reins of the case. He won over several black ministers to his side and they obtained affidavits from Norris and Patterson firing the ILD and re-hiring Leibowitz.
The ILD was also determined to hold onto the case. William Patterson, whom Acker describes as “a black attorney from Harlem and the national secretary of the ILD,” appealed to Mrs. Wright and Mrs. Patterson. On October 31, attorney Benjamin Davis and Josephine Norris were at the prison. At their urging, Clarence Norris and Haywood Patterson signed affidavits turning their cases back over to the ILD.
A Leibowitz representative was at the prison the next week. He got affidavits from both Boys returning the case to Leibowitz.
So it went, back and forth, with the young convicted men turning in one direction and then another.
In October, the American Scottsboro Committee (ASC) was formed at Leibowitz's behest. It boasted a prestigious line-up of officers: Its chair was executive secretary of the Federal Council of Churches' department of race relations, Dr. George E. Haynes, and its directors included famed performer Bill “Bojangles” Robinson.
Leibowitz and ILD lawyers hammered out a compromise: Leibowitz and Chamlee (no longer associated with the ILD) would defend Norris and ILD attorneys Fraenkel and Pollak would defend Patterson.
The U.S. Supreme Court review began on February 15, 1935. Leibowitz argued that Norris's conviction should be overturned because “Negroes” had been systematically excluded from the jury. ILD attorneys argued similarly for Patterson.
The defense attorneys won. A new trial was ordered for Norris and Patterson's case was ordered to be again reviewed by the Alabama Supreme Court.
Several opposing organizations that were concerned about the Boys began negotiating over control of the case. The NAACP, the ACLU, the ILD and the League for Industrial Democracy (LID, affiliated with the Socialist Party) met to discuss the Scottsboro Boys. They agreed that Leibowitz, who had done so much for the Scottsboro Boys, nevertheless presented a problem because of prejudice against him as a Jew and a Northerner, coupled with the offense occasioned by his outburst against previous jurors.
These groups met with Leibowitz. They said that they would support him as chief counsel if he would allow a Southern attorney to take the more prominent role in the courtroom proceedings. Leibowitz agreed.
In December 1935, the NAACP, the ILD, the ACLU and the LID formed a “Scottsboro Defense Committee.”
Civil rights activist Allan Knight Chalmers became SDC chair. At the 1936 trial of Haywood Patterson, Huntsville, Alabama attorney Clarence Watts sat beside Leibowitz.
Carter reports, “On Tuesday morning, January 21, the trial finally got underway as Victoria Price told her story for the eighth time.” Once again, Judge Callahan presided before an all white, male jury.
Watts devoted much of the defense to pointing out contradictions in Price's claims. As Carter reports, Watts pointed “out contradictions in her account of how she had fallen and supposedly fainted. W. W. Hill, the station master at Paint Rock, and Tom Taylor Rousseau, the young part-time Jackson County deputy, both said they had first seen her standing at least 10 cars farther back than the gondola where she claimed she had fainted as she got out.”
Leibowitz left all cross-examination to Watts with the exception of one prosecution witness. That witness was Obie Golden, a guard at the Kilby State Penitentiary, who testified that in 1934 Patterson had called out to Golden that he wanted to speak to him and then told the guard, “I am guilty of that crime. Also Clarence Norris and also those other seven up there in Birmingham Jail.” Leibowitz brought out that Golden had not notified the warden about this supposed confession, had not written it down, and had waited over a year and a half before reporting it to the prosecution.
The defense called Lester Carter to the stand to suggest a source for the small amount of non-motile semen found in Price.
Morgan County Solicitor Melvin Hutson, who had succeeded Wade Wright in that office, made the initial prosecution summation. He praised Price, asserting, “She fights for the rights of the womanhood of Alabama” who, whether “in overalls or furs,” are entitled to freedom from attack.”
In the defense summation, Clarence Watts approached the jury in a quiet manner. He told them that he was a “friend and neighbor” of theirs. Watts pointed to the many contradictions in Price's story and the medical evidence refuting it. He appealed to the jury to “do the right thing” and pointed out that when justice is unfair “there is not protection for anyone, man or woman, black or white.”
The trial had lasted all of three days, beginning on a Tuesday and going to the jury on a Thursday.
While the jury deliberated Patterson's fate another was impaneled in the new trial of Clarence Norris.
As the last juror for Norris was being selected that afternoon, word came back that the Patterson jury had reached a verdict.
The clerk read its verdict: “We, the jury, find the defendant Haywood Patterson guilty as charged and fix his punishment at seventy-five years in prison.” The conviction did not come as a surprise but the less than maximum sentence did.
The jury had settled on less than execution because foreman John Burleson argued long and hard for the prison term. His reasons were hardly enlightened. Burleson said blacks had “more animal in 'em than white folks. The beast in 'em overrides 'em and they go temporarily insane and do things they swear they never would do.”
The shock of the slashing
On January 25, heading back to the Birmingham jail after a day in court, Ozie Powell, Clarence Norris, and Roy Wright were riding in a car driven by Morgan County Sheriff J. Street Sandlin. Deputy Edgar Blalock was in the car to help guard the prisoners.
Sometime before 4 p.m., Ozie Powell slashed Deputy Blalock with a knife, cutting him across the fleshy part of his chin. Although he was behind the wheel, Sandlin reached back to push Powell before stopping the car which was by this time careening from side to side on the highway. After he halted the vehicle, Sandlin fired on Powell.
According to Carter, this scene was witnessed by filling station operator G. F. Anderson, who ran over to the commotion just in time to see Norris and Wright with their hands over their heads, and one of them shouting, “Boss we haven’t got anything on us. You can search us. We haven’t got anything at all.” Anderson saw Powell slumped in the seat, blood streaming from the bullet wound in his head.
Two versions of this altercation emerged. Norris and Wright claimed Powell found a pocket knife in the cell and put it in his pocket. While the three manacled prisoners were in the car, Sandlin and Blalock started bad-mouthing the Boys's attorney. Powell talked back and Blalock slapped him on the mouth. Then Powell slashed Blalock.
The officers claimed the attack had been unprovoked.
Powell sustained permanent brain damage.
On June 14, 1936, the Alabama Supreme Court upheld Patterson's conviction.
On July 12, 1937, a new trial began for Clarence Norrisbefore Judge Callahan and an all white, male jury,despite the fact that the U.S. Supreme Court had granted him a new trial based on the all white composition of his previous jury. Thomas Lawson headed the prosecution team. Watts and Leibowitz sat at the defense table.
The prosecution case remained what it had been.
Leibowitz read the previous testimony of the late Dr. Bridges into the record. The trial lasted three days.
The jury took two hours and 30 minutesto convict Norris and sentence him to die.
The trial of Andy Wright began with a surprise move from the prosecution: Lawson announced the state would not seek the death penalty.
Local attorney Watts was not there. The defeats of the previous trials had left him too discouraged to continue. Leibowitz slogged on, giving everything he had to rescue innocent men from injustice.
After a trial of a little over one day and deliberations that lasted an hour and 15 minutes, Andy Wright's jury returned a guilty verdict and a sentence of 99 years.
The trial of Charley Weems, with Leibowitz as sole counsel, began. Again, the prosecution did not ask for the death penalty.
Weems's trial went to the jury on the second day. They deliberated for three and a half hours on an afternoon and two and a half hours the next morning before convicting him and sentencing him to 75 years.
Four set free
On July 24, 1937 the prosecution dropped the rape charge against the now brain-damagedOzie Powell. It is likely the state did not want to bother with a rape trial since the disabled man was willing to plead guilty to assault of a police officer. Judge Callahan sentenced him to 20 years.
Lawson and Leibowitz went to the bench where they spoke in hushed tones to Judge Callahan. Then Leibowitz went to the county jail. He handed a court order to a jailer. Montgomery, Roy Wright, Roberson, and Williams were let out of their cells and allowed to follow their attorney into waiting cars. The state had agreed to drop charges against these four. They were free.
Many people were flummoxed at this bizarre compromise. The evidence against all nine Scottsboro Boys was essentially the same so how could these four be innocent and the others guilty? It seemed like either the state had agreed to freedom for four guilty rapists or four other men (Powell being incarcerated for an assault) were unjustly imprisoned.
Lawson read an explanation. He said that the state was convinced of the guilt of those convicted but believed Roberson and Montgomery were innocent because their disabilities made it unlikely they could have committed the crimes. Lawson said the state still believed Price but thought she had made an error of “mistaken identity.” Lawson continued that charges against Roy Wright and Williams had been dropped because they had been 12 and 13 at the time of the rapes and the six and a half years they had spent behind bars was adequate punishment for attacks committed when they were so young.
The U. S. Supreme Court refused on October 26, 1937 to hear Patterson's appeal.
The SDC went directly to Alabama Governor Bibb Graves, asking him to consider pardoning Patterson, Norris, Andy Wright and Weems. Graves agreed to consider it.
In June 1938, the Alabama Supreme Court upheld the sentences of Norris, Andy Wright, and Weems. Governor Graves commuted the Norris death sentence to life imprisonment.
In the meantime, the four set free went to New York City with Leibowitz who attempted to steer them into a stable life of vocational training and regular jobs.
The Boys believed they could get rich quick on their notoriety. Thomas S. Harten, a black minister, approached them, offering to become their manager. Harten soon had them on stage where they were billed as “the Scottsboro Boys . . . the symbol of a struggle for enlightenment and human brotherhood which will go on and on until it is won!”
Much of the money from the engagement went into the pocket of their manager while they had to buy new suits at their own expense. Instead of raking in a fortune, they plunged into debt.
Eugene Williams, Willie Roberson, and Leroy Wright eventually settled into fairly normal lives. The nearly blind and alcoholic Olen Montgomery careened from one low-paying job to another and was often jailed for public intoxication and drunk and disorderly conduct.
In October, Governor Graves met with the imprisoned Scottsboro Boys.
Graves informed Chalmers and Hall that the interview had been a disaster. Graves claimed that Patterson and Norris were enraged at each other and that a file fashioned into a knife had been found on Patterson. Said the governor, “They are anti-social, they are bestial, and they are unbelievably stupid and I do not believe they can be rehabilitated in freedom.”
According to Carter, many observers believed the hostilities between Norris and Patterson were just Graves's excuse for avoiding action. There was no evidence that Andy Wright and Weems (Powell was a special case) had been anything other that perfectly polite. It is likely Graves simply feared the political repercussions of pardoning the remaining Scottsboro Boys.
Weems was paroled in November 1943.
Andy Wright and Norris were paroled in January 1944 on the condition that they work at a lumber company near Montgomery. The two men also had to live in a small room and sleep in the same bed. Finding these conditions little better than imprisonment, they fled North.
After receiving official assurances that neither man would be returned to prison if they came back to Alabama, Chalmers persuaded the fugitives to return. Alabama officials broke their word and clapped Andy Wright and Norris behind bars.
In late 1946, Norris received a second parole. Powell was also paroled.
In 1948, Patterson was in a prison work gang. He ran from it, made his way to Detroit, and took refuge with his sister. Two years later, he was arrested by the FBI. Michigan Governor G. Mennen Williams refused to sign extradition papers. Alabama officials had no interest in pursuing the matter, thus setting him free.
In 1950 Andy Wright was paroled. Surrounded by reporters, the man who had served 19 years for a non-existent crime said, “I have no hard feelings toward anyone.” Asked about Price, he commented, “If she's still living, I feel sorry for her because I don't guess she sleeps much at night.”
Tragedies and a triumph
Not surprisingly, several of the Scottsboro Boys, who had grown to manhood in prison, met with tragic fates.
About a year after Andy Wright's release, a black woman accused him of raping her teenaged daughter. He was tried and acquitted. However, he saw this as further evidence that he could never escape his past. He said, “Everywhere I go, it seems like Scottsboro is throwed up in my face. I don't believe I'll ever live it down.”
In 1959, 22 years after gaining his freedom, Roy Wright found his wife with another man. He stabbed her to death and then shot himself.
With the help of journalist Earl Conrad, Patterson wrote a memoir entitled Scottsboro Boy. In 1950, Patterson got into a barroom brawl and stabbed a man to death. Convicted of manslaughter, Patterson died in prison from cancer in 1952.
By the early 1970s, Clarence Norris was married and working as a vacuum sweeper in New York City.
One day, he phoned the Alabama Governor's Office. He asked to speak to then-Governor George Wallace. An official came on and Norris related that he was one of the Scottsboro Boys. Norris told how he had “broke my parole” and wanted “to know if Alabama still wants me.” He was told to call the Department of Corrections. Norris did and learned that he was indeed still a wanted man.
Norris asked for assistance from the NAACP. Their attorneys pressured the Alabama Board of Pardons and Paroles into reviewing the case. After an extensive re-examination of the evidence, the board voted to grant Norris a pardon. However, the governor had to approve it for it to go into effect.
Governor Wallace had achieved fame as a fiery segregationist. He had once tried to block blacks from attending a previously all-white university by standing in a doorway and had proclaimed “segregation forever.” More recently, he had abandoned the segregationist cause and sought, with some success, to make political alliances with blacks.
He signed the pardon.
Several months after being pardoned, Norris met with Wallace who shook Norris's hand and told him he was glad to have signed the pardon. Many observers speculated that Wallace had signed the pardon as a ploy to get black votes. Goodman writes, “After leaving the governor's office, Norris was asked if he cared to comment on Wallace's motives. He said he didn't: 'I'm grateful to the governor, and I told him so. I'll tell him every time I see him.”
“Do I look dead?”
A made-for-TV film entitled Judge Horton and the Scottsboro Boys aired on NBC in 1976. The version of events recounted in this movie drew largely from Dan T. Carter's Scottsboro: A Tragedy of the American South.
According to Gilbert Geis and Leigh B. Bienen in Crimes of the Century: From Leopold and Loeb to O. J. Simpson, “The television drama mercilessly portrayed Price as a whore, a perjurer, and suborner of perjury.”
The day after Judge Horton and the Scottsboro Boys was broadcast, Victoria Price went to an attorney's office and introduced herself to the lawyer. “Does the name Victoria Price mean anything to you?” she asked.
The attorney replied, “But they said you were dead.”
Price pointedly queried, “Do I look dead?”
Carter's massive book was for the most part meticulously researched but ended with two errors. He wrote that both Price and Bates were deceased. When his book was published in 1969 – and indeed when the film aired in 1976 – both women were still living, although Bates was ailing.
Both women filed lawsuits against NBC. Bates died later that year before a court delivered an opinion on her case.
Price sued NBC for slander, invasion of privacy, and libel. She asked for $6 million in damages. Geis and Bienen report, “The judge declared a mistrial on the ground that there existed no material evidence upon which the jury could find in Price's favor on claims of slander or invasion of privacy. When all the evidence had been heard, the same result was reached in regard to the libel claim.” She appealed and an appellate court ruled against her.
The U.S. Supreme Court agreed to hear her next appeal. NBC and Price came to an agreement in which she dropped the case in exchange for an amount of money that was not made public. Geis and Bienen write that Price used the money to leave a residence that would usually be called a “shack” and “buy a small house, a dream she said she had carried with her all her life.” Crewe and Uschan note, “She died without ever apologizing for ruining so many lives with her lies.”
Bibliography
http://www.imdb.com/title/tt0074723/#comment, Judge Horton and the Scottsboro Boys. Acker, James R, Scottsboro and its Legacy: The Cases That Challenged American Legal and Social Justice, Prager Publishers, Westport, CT, 2008. Carter, Dan T., Scottsboro: A Tragedy of the American South, Louisiana State University Press, Baton Rouge, Louisiana, 1969. Crewe, Sabrina and Uschan, Michael V., The Scottsboro Case, Gareth Stevens Publishing, Milwaukee, WI, 2005. Geis, Gilbert and Bienen, Leigh B., Crimes of the Century: From Leopold and Loeb to O. J. Simpson, Northeastern University Press, Boston, Massachusetts, 1998. Goodman, James, Stories of Scottsboro: The Rape Case that Shocked 1930s America and Revived the Struggle for Equality, Pantheon Books, New York, NY, 1994.
Five innocent people were convicted in February 1997 in the deaths of six Kansas City firefighters in 1988. These two stories run a total length of 20,000 words, and won the Missouri Bar Association's annual "Excellence in Legal Journalism" award. On Oct. 30, 1998, the 8th U.S. Circuit Court of Appeals denied the appeal in the Kansas City Firefighters case. Read the full opinion hereand ouranalysis of the opinion. On Oct. 4, 1999, the U.S. Supreme Court declined to grant certiorari in the case.
For many years Frank and Skip Sheppard were the Injun Joes of Marlborough - the down-on-its-heels neighborhood in southeast Kansas City where six firefighters were killed in an explosion Nov. 29, 1988. Like the character by that name in Tom Sawyer, they were perceived by many as evil characters in whose wake woe would surely follow.
These two brothers - large, forbidding Native Americans, scared people. When Skip Sheppard was in a car wreck that killed his fiancée and left him in a coma, some people said he deliberately drove in front of a truck to get rid of the fiancée.
So it's no surprise that Frank and Skip were among the early suspects in the firefighter case - and that Frank's girlfriend, Darlene Edwards, Frank's nephew Bryan Sheppard, and Bryan's best friend Richard Brown, would be included as well.
When the firefighter case had gone unsolved for eight years - and seemed incapable of being solved - these five became expendable.
On Feb. 26, 1997, a U.S. District Court jury found all five guilty of causing the explosion that killed the firefighters. They will soon be sentenced to life in prison without parole. The defendants can and will appeal their convictions, but that is a years-long road filled with uncertainty. All five of those convicted are almost certainly innocent of that crime. The five became expendable because of the lives they'd led: being petty thieves, drunks, drug addicts and no-accounts in general.
The firefighter case, in the end, became not so much a search for truth as a quest for closure. Over the years, the pressure for closure had grown intense.
The families of the dead firefighters ached for this dark chapter in their lives to come to an end, so they could go on with their lives. These families had the overwhelming sympathy of the people of Kansas City.
The firefighters of Kansas City needed to know that you couldn't just kill six firemen and get away with it.
Alcohol, Tobacco and Firearms (ATF) Special Agent Dave True wanted to retire - but not with the biggest case of his career unsolved. True, who had said for years that organized labor was responsible for the explosion, deliberately misled a grand jury in order to get these five defendants indicted.
The deaths of the six firefighters on Nov. 29, 1988, constituted the most horrific, unsolved criminal case in the city's history. A year after the explosion, voters approved a nickel-a-pack increase in the cigarette tax to fund a Haz-mat (hazardous materials) unit in the Fire Department. That unit is dedicated to the dead firefighters. Three years after the explosion the Firefighters Fountain was dedicated at 31st and Pennsylvania, and six months after that the 30-41 Memorial to the slain firefighters was dedicated at the site of the explosion.
As late as February, 1995, ATF Special Agent True said on the TV series "Unsolved Mysteries" that the fire and explosion were consistent with previous acts by organized labor in the year preceding the explosion.
The five people indicted: Darlene Edwards, 43, Frank Sheppard, 46, Earl "Skip" Sheppard, 37, Bryan Sheppard, 26, and Richard Brown, 26, had no connection to organized labor. (Frank and Skip were brothers and uncles to Bryan, although estranged from him. Frank and Darlene had been living together for a number of years. Bryan and Brown were best friends. There was no love lost between them and Frank, Darlene and Skip.) At the time of the indictment, all but Brown were in prison on unrelated charges. Although Brown had no felony convictions, he was nonetheless well-known to police.
For Bryan Sheppard, it was the second time he had been indicted for the murders of the six firemen.
In 1989, after several jailhouse snitches said he had confessed to them that he was involved in setting the fire that caused the explosion, he had been charged with six counts of second-degree murder in Jackson County Circuit Court. (He'd been in jail for stealing a bicycle.) The murder charges were dismissed when it turned out the jailhouse snitches were lying. Specifically, informant Chris Sciarra said Sheppard had confessed while a particular Saturday morning television show was on. John P. O'Connor, Sheppard's attorney, was able to prove through jail records that Sheppard had been in the visiting room, in a different part of the jail, while that show was on.
John Driver, the key informant against Bryan Sheppard in 1989, has since stated publicly that the police intimidated him into signing a prepared statement implicating Sheppard. Driver, who'd been held on $100,000 bond for several felonies, including a charge of bombing the Brothers III nightclub, was then released on a signature bond. The police deny Driver's allegations.
Sciarra later gave O'Connor a sworn statement saying the whole scheme had been dreamed up by Driver, who wanted to collect the $50,000 reward.
This time the indictment against Sheppard and the four others was by the U. S. government. It charged the defendants with arson resulting in the deaths of the six firefighters (i.e., that they set fire to a trailer containing ammonium nitrate and fuel oil, which then exploded while the firefighters were trying to put out the fire). The case would be tried by Assistant U. S. Attorney Paul Becker, the chief of the federal Organized Crime Strike Force. And, instead of two jailhouse snitches, the ATF had rounded up scores of prison and jail informants, along with a handful of Marlborough residents.
Since the five defendants were all paupers, the federal court appointed private lawyers to represent each of them: Will Bunch, a 29-year veteran in criminal law, and the first criminal lawyer to be elected president of the Kansas City Metropolitan Bar Association, to represent Darlene Edwards; the previously mentioned O'Connor, a former Jackson County assistant prosecutor who had achieved wide recognition for his defense of Bryan Sheppard in 1989 and in subsequent high-profile cases, to once again represent him; Patrick Peters, a former Jackson County assistant prosecutor who became known as "Doctor Death" for his numerous death-penalty convictions as a prosecutor, to represent Frank Sheppard; John Osgood, who had recently retired as an assistant U. S. attorney who had lost only one criminal jury trial case in his long career (to Will Bunch), to represent Brown; and Susan Hunt, who frequently handled appointed cases in federal court, to represent Skip Sheppard. Hunt was assisted by attorney Elena Franco, who had recently been nominated to become a Kansas City municipal judge. (She was not appointed.) I assisted Bunch in the defense of Darlene Edwards.
The trial ran for five weeks in January and February, 1997. The jury returned with guilty verdicts on Feb. 26, 1997.
The word heard most often in the days following the verdict was "closure."
Then, on April 19, 1997, as the nation was mourning the anniversary of the bombing in Oklahoma City, a small group of people picketed the Firefighters' Memorial, protesting the convictions in the firefighter case - signs protesting the fact that the bulk of the government's case consisted of testimony from convicts and ex-convicts. One sign pointed out that the three defendants who had taken polygraph tests had passed them. (Although Darlene had volunteered to be polygraphed, she never was, nor was Skip Sheppard.)
Frank and Bryan Sheppard and Brown had passed polygraph tests years earlier concerning their involvement in the explosion. Several Marlborough residents had claimed the defendants took valium to pass the tests - but Frank Sheppard was in Municipal Farm when police asked him to take the test. At the time of his indictment, Frank Sheppard didn't even remember taking the test.
THE EXPLOSION
Nov. 29, 1988 was a crisp night with a full moon. At 87th Street and South 71 Highway the Bruce R. Watkins Memorial Drive was under construction. The 10 mile, $200-million project was the biggest concrete job in Kansas City in many years. The work crew from Mountain Plains Construction, on the east side of 71 Highway at 87th Street, had left at 5 p.m. Across the highway (the west side) was the equipment for Brown Brothers Construction, the general contractor. Brown Brothers had subcontracted with Mountain Plains Construction to do the blasting (Mountain Plains then hired Maynes Explosives).
The east construction site was atop a hill, which had an eight-foot earthen berm. Behind that berm were two trailers loaded with ammonium nitrate and fuel oil in cloth "socks." Holes were drilled in the bedrock, then packed with these long, cylindrical socks of ammonium nitrate, which were then detonated with dynamite. Ammonium nitrate in its pure form is simply fertilizer, but mixed with fuel oil it becomes a "blasting agent." The two trailers contained nearly 50,000 pounds of the ammonium nitrate/fuel oil mixture. The ammonium nitrate also contained 5 percent aluminum pellets, to increase the blast force, since the contract called for the bedrock to be broken into rock chunks of no more than 15 inches in diameter.
At 6 p.m. Donna Costanza and Kevin Lemanske, employees of Ameriguard, arrived at work. Their jobs were to guard the two construction sites. Costanza was the roommate and companion of Deborah Riggs. Robert Riggs, Deborah's brother, owned Ameriguard along with his wife Jenny. Deborah Riggs, six and a half months pregnant by artificial insemination, was on pregnancy leave from the Ford Claycomo plant and had recently begun moonlighting for her brother's company.
At 10 p.m. Costanza and Lemanske were replaced by Robert and Deborah Riggs (as with many aspects of the Riggs' story, there is some dispute on who relieved who, and when).
At 3:40 a.m. the Kansas City Fire Department received a call from Robert Riggs, which was recorded. Riggs reported a pickup truck on fire on the west side of 71 Highway. On the dispatch tape Deborah Riggs can be heard saying, "Oh, the explosives are on fire."
At 3:47 a.m. pumper 41, manned by firefighters James H. Kilventon, Robert D. McKarnin and Michael R. Oldham, told the dispatcher there were two fires, and they asked for a second pumper.
At 3:57:20 pumper 41 told the dispatcher it was an arson, and asked for the police to be sent. They also told the dispatcher to tell pumper 30 (on the way) to stay away from the trailer (on the east side of the highway), that explosives were involved in that fire.
At 3:58 a call went out to Battalion Chief Marion Germann, who was in car 107, along with his driver, Charles D. Gentry.
At 3:59:31 pumper 30, manned by Captain Gerald Halloran, Thomas M. Fry and Luther E. Hurd, asked the dispatcher: "Can you confirm as to whether there is explosives in this trailer or not?" . . . pumper 30: "Could you send 41 out there?" Pumper 41: "10-4. We're on our way now." 4:02:13: Pumper 41: "We've got a trailer and part of a compressor going up here."
They asked for a 4-wheel drive to haul some water in.
4:04:20: Pumper 41 then told car 107 they were on the east side of the construction site. "Yeah apparently this thing's already blowed up. We've got magnesium or something burning up here." They told car 107 that both companies were back by the burning trailer.
4:06:23: Car 107 arrived.
4:08:19: Car 107 reported the first explosion.
In their later statements to police, Chief Germann, his driver and the Riggses all described the same scene prior to the explosion: The firemen were using a long pole to pull a Mountain Plains pickup away from the burning trailer. The trailer itself was so hot it seemed to be transparent - they could literally see the socks of explosives through the thin metal walls of the trailer. There were no flames, and no mention of smoke. Just this white-hot, hellish heat with countless sparks leaping from it and the sound of tiny explosions, like strings of M-80s going off (the aluminum pellets.)
The explosion had five times the impact of the bomb that destroyed the federal building in Oklahoma City. It was so catastrophic that one of the two fire department pumpers evaporated. Literally. It was never found. The explosion broke windows and cracked walls for miles around and was heard as far away as Warrensburg, Mo., some 45 miles to the east. One woman, who lived a mile away, told police the explosion bent the car key laying on her kitchen table into an L-shape and broke her dog's eardrums. (She would testify for the government.) Many thousands of people claimed to have been knocked out of bed, or at least jarred awake, by that first blast.
In the wake of the explosion, more than 1,300 individuals and businesses would file $18-million in property-damage claims, and would eventually collect $4.5-million from Brown Brothers Excavating, Inc., Mountain Plains Construction, Maynes Explosives and Ameriguard, Inc. Mountain Plains, which had a million dollars in assets at the time of the explosion, went out of business because no bonding firm would underwrite it.
The explosion heavily damaged car 107 and Robert Riggs' station wagon. A gloved, smoking hand landed next to Battalion Chief Germann's car - several hundred yards from the explosion. Deborah Riggs said later that the firefighter closest to the trailer seemed to explode from the inside out. Robert Riggs wanted to go up and see if any of the firefighters could be helped, but Deborah Riggs refused. As she would say later, at a deposition:
Q: (Attorney): You made a reference in here to one of the firemen in the car being Manson like. Do you remember that?
A: (Deborah Riggs): Yes.
Q: What was that; what were you talking about?
A: Because he was up underneath the dashboard.
Q: What Manson are you talking about?
A: Charles Manson.
Q: The mass killer?
A: It had nothing to do with him being a killer. It was because supposedly when they caught Manson, he was in a cabinet, in a kitchen cabinet. He had crawled inside a cabinet.
Q: When you saw this fireman, that is what came to your mind?
A: Yes, because he also was supposedly in charge and he was underneath the dashboard.
Q: So it kind of was analogous in your mind?
A: Yes.
Q: What was his demeanor, the fireman, not Charles Manson?
A: I don' t know what you mean.
Q: Did he seem upset: was he crying; did he - was he uttering anything; was he bemoaning the loss of friends?
A: He was saying "call an ambulance," which didn't make a lot of sense to me. The firemen didn't need an ambulance.
Following the explosion, Germann, his driver, and the Riggses immediately left the site. The police blocked off the area, setting up a command post farther south on 71 Highway at 95th Street. Two firefighters - ignoring orders - entered the explosion site to see if any of the firefighters were still alive. They didn't get far, however, before they began to discover body parts. They could see dead firefighters scattered around. They left before the second explosion occurred, approximately 40 minutes after the first.
THE RIGGSES
By 6 a.m. the first finger of suspicion was being pointed. Shawn Roma, who lived east of the explosion site, told police that they should look at Ed Massey, a part-time bounty hunter and wood cutter. Massey and Roma had briefly been partners, cutting wood from the blasting site. There was a huge -football field sized -pile of wood from trees that had been razed from the construction site. Brown Brothers Construction had given permission to Roma and Massey to harvest the wood, since someone would have to get rid of it anyway.
After a week or so Massey and Roma had a falling out. According to Roma, Massey had threatened to blow the site up so no one could have the wood. By the time it was over, Massey and Roma were both questioned, searched and polygraphed. (They both passed.)
Also at 6 a.m. that day, detectives picked up Deborah Riggs at her mother's house in Grandview and took her to headquarters for questioning.
· Although the police had publicly exonerated the Riggses of suspicion by March, 1989, during the next month detectives began contacting American Family Insurance concerning claims filed by Deborah Riggs. Although Deborah Riggs had only been with American Family since May, 1988, there is no indication the police ever checked with any insurance company other than American Family. Had they done so, they might have learned about the phony theft report she'd previously turned in a car she claimed had been stolen.
· Robert Riggs testified at trial that, after the explosion, he had retraced the route he and Deborah Riggs took after she claimed to have seen two people walking across the highway. He said it took four-and-one-half minutes to go from where they had been parked, up by the office trailer, down by the river, then to QuikTrip, and back to where Deborah's pickup was burning. Keeping in mind that Vivian Rhodes came along, saw the burning truck, then went down the highway, turned around and went back to QuikTrip, it appears there would have been an extremely brief "window of opportunity" of about 90 seconds for some outsider to go to Deborah's truck and set it on fire, and to also set the trailer on fire on the opposite side of the highway, along with a compressor which was set on fire.
· Agent True wasn't oblivious to the Riggses being the most logical suspects in this case. When True was questioning Darlene Edwards on Feb. 17, 1995, he repeatedly sought to find some link between Darlene and Deborah Riggs. He asked Darlene if she had ever babysat for Deborah, of if she had ever smoked crack with Deborah. Darlene denied ever knowing Deborah Riggs.
In her initial statement to police, Deborah Riggs told Detective Victor Zinn that she took a meat-loaf sandwich to the site to give to her brother, that he was alone and he'd asked her to stay and help him. She was scheduled to work later that night anyway, she said, but came in early because of Costanza's car problem.
Deborah Riggs said she was parked on an access road on the west side of the highway, where the heavy equipment for Brown Brothers was parked, while Robert Riggs was stationed on the hill on the east side of the highway, so he could guard the Mountain Plains site. There were two access roads onto the east site: one, directly across the highway from Deborah Riggs, and another at the corner of 87th and 71 Highway, which she could also see from where she was parked.
It was an unusually slow night, she said, with little foot or vehicle traffic along 71 Highway. Deborah Riggs told Det. Zinn that at about 3:30 a.m. she had seen two large people, whom she presumed to be men, walking across the highway, north of her position, where a construction trailer was parked in the median of the highway. At first she thought nothing of it, but when they disappeared and did not reappear, she called her brother. She said Robert Riggs drove over to where she was and she got in his station wagon, leaving her keys and her purse in her red 1977 Toyota pickup truck. She said they then drove north on 71 Highway, looking for the two men. They shined their spotlight around the construction trailer and saw nothing, so they decided to go to the QuikTrip store several blocks north to see if the clerk there had seen anyone suspicious.
The clerk had seen nothing, Deborah said, so she decided to buy some milk and breakfast rolls. Robert Riggs, however, told police he was waiting for his sister, looked in the store and didn't see her or the clerk, and thought a robbery might be in progress. But she emerged and moments later a black Camaro sped into the parking lot and a woman in black leather pants and a black feathered coat ran into the store. Then the manager came out and said there was a fire at the construction site.
The Riggses said they immediately left to check the fire. The woman in black, Vivian Rhodes, told police she became concerned because the Riggses seemed unconcerned, so she went looking for the police and stopped a patrol wagon to tell them about the fire.
The Riggses said they raced south on 71 Highway, saw a fire, and as they got closer saw it was Deborah's pickup truck, with the headlights on and fully ablaze. Robert then called the fire department.
In this, and in subsequent interviews with Robert and Deborah Riggs, a pattern of inconsistencies emerged:
· After her videotaped interview with Detective Zinn, Deborah admitted she was lying when she said Robert was on patrol across the highway when she saw the two men in the median of the highway. She now said that she was sitting beside Robert in his station wagon when she saw the men.
· The police found a witness who had seen Deborah sitting in the station wagon, with the overhead light on, but did not see Robert. So Deborah said Robert had fallen asleep, with his seat reclined. Robert said he may have gone to urinate behind some machinery.
· A police report dated Dec. 1, 1988 described Robert's reaction to some of Deborah's statements: "His displeasure was almost to the point of saying his sister was lying."
· Robert Riggs, Jenny Riggs and Deborah Riggs all used aliases on the job. Robert Riggs said this was to avoid the appearance of a mom-and-pop operation.
· Deborah Riggs said that following the first explosion, a police officer told her and Robert to wait on the west side of the highway, until statements could be taken from them. She said initially that they were still by the heavy equipment when the second explosion occurred. She then changed her story, saying that in addition to her keys and purse, a .38-caliber revolver belonging to Robert had been in the truck. She now said that, after waiting a bit on the west side of the highway they looked out and everyone was gone, so they decided to drive to the command center farther south on 71 Highway (which they could see). Before getting there, however, Robert remembered the pistol and decided to go back for it. Robert let Deborah out by the side of the road and Robert went back for the gun. Before he could return, the second blast occurred.
· Robert Riggs told police he went back for the handgun because it was a limited-edition collector's item. At trial John Osgood asked Robert Riggs exactly what kind of handgun it was - what year, what model - and Riggs said it wasn't really a collector's item.
· At the time of the explosion, Ameriguard had an employee named Melvin Stanton. Stanton told detectives on Feb. 21, 1989 that he was contacted by Deborah Riggs around 9:30 p.m. on Nov. 28, 1988, and was told to report to work because someone was not coming in. Stanton said he arrived between 9:45 and 10 p.m. and Deborah was on the west side of the site alone, so he took up a position on the east side. At 11 p.m., Stanton said, Robert Riggs called him on the car phone and told him to go home. Stanton told detectives that several days before the explosion Robert Riggs told him, "If anything happens out here, you keep your mouth shut."
· Stanton also said that Deborah normally had a large boxer dog with her, but had left it at home the night of the explosion. He also said Deborah always carried a one-gallon red gas can with a yellow spout in the back of her truck, because her gas gauge wasn't working. (Denied by Deborah Riggs.)
· Deborah testified that, just prior to seeing the two men, she was making out new work schedules for the employees of Ameriguard, because on the afternoon of Nov. 28, 1988, Robert Riggs had been notified that the construction companies were cutting back the hours Ameriguard would be guarding the site.
· Stanton told detectives he thought Robert Riggs had set the fire, because Riggs was worried about losing the construction site contract.
· Although the Riggses had at first said they saw the flames from the trailer while they were calling the fire department, Robert Riggs later said he could only see an orange glow in the sky on the east side of the highway.
· Detectives parked where Robert's station wagon had been, on the access road, had someone walk across the highway where the construction trailer had been parked, and determined that Deborah Riggs could not have seen two men where she said she saw them. Robert Riggs said he could understand why detectives would have doubts, but insisted he believed his sister.
· In the numerous police statements and depositions given by the Riggses, they have never mentioned Melvin Stanton being called to duty and then being sent home an hour later that night. Melvin Stanton was never again questioned by the authorities, and defense lawyers were unable to find him while preparing for trial.
· Deborah Riggs testified to the federal grand jury that pumper 41 arrived and quickly put out the fire in her pickup. She said pumper 30 arrived and parked in the median of the highway, and that pumper 41 was by her truck for 25 or 30 minutes, and that pumper 30 was parked in the median for an additional 10 or 15 minutes. She said in a deposition that she talked to all six firemen, and that she specifically told them the trailers on the hill were loaded with ammonium nitrate and fuel oil. This statement has caused great bitterness among firefighters in Kansas City, because it is a commonly known rule that firefighters do not fight a fire once it has reached ammonium nitrate - they evacuate the area and let the fire burn out.
· In her first statement to Det. Zinn, however, Deborah Riggs said she told the firemen it was "blasting caps and explosives" in the trailer (which would explain why the firefighters thought an explosion - the blasting caps - had already occurred). She has since said, however, that Zinn was putting words in her mouth and misquoting her, and that he told her he would not let her go home until she said Robert Riggs had been asleep.
· During the 45 minutes to an hour that Deborah Riggs claims the firefighters were dawdling on the west side of the highway, she admitted that neither she nor her brother ever went to see what was happening on the east side of the highway. In one deposition Deborah said she believed the Mountain Plains pickup truck was on fire, and that it might set fire to the trailer. She said she asked the firemen why they were wasting time with her truck - when the explosives trailer was in danger across the highway. During one deposition she was asked if she or Robert Riggs - hired to guard both sides of the highway - weren't a little curious about what was happening across the highway, or whether intruders were over there, and she said no.
· The Fire Department dispatch tape proved conclusively that only 20 minutes expired from the time pumper 41 arrived and the time of the first explosion, proving that Deborah's account could not be true. The tape indicates that pumper 30 went straight up the hill, rather than stopping, because at 3:57:20 pumper 41 told the dispatcher to tell pumper 30 to stay away from the trailer because of explosives being involved, and two minutes and eleven seconds later, pumper 30 asked the dispatcher to send pumper 41 up the hill. .· Deborah Riggs collected approximately $2,200 for the destruction of her truck. She has admitted that her paycheck from Ameriguard was being paid directly to her mother because she was in debt.
· An hour before Deborah Riggs was to take the witness stand at the trial, Paul Becker notified defense lawyers that Deborah Riggs had just informed him that, in the 1970s, she had paid her roommate to have her car stolen so she could collect the insurance.
· On Feb. 16,1994 ATF Agent True and special agent Eugene Schram of the Department of Labor (DOL), took a signed statement from a woman, which said: "Approximately 5 years ago, shortly after the explosion which killed the six Kansas City Firefighters . . . I believe some television news program mentioned the explosion, which caused Sandy DiGiovanni to say she had information about the cause of the explosion. DiGiovanni said that a friend of hers, Donna Constanza (sic), claimed to have worked as a security guard on the construction site where the explosion occurred. Donna Constanza (sic) said that on the night of the explosion, she assisted a fellow female security guard burn her private pick-up truck. This was done to collect insurance on the truck." .
· Although the police publicly exonerated the Riggses of suspicion early in the case, on Feb. 10, 1995 detectives went to see Deborah Riggs at the Ford Claycomo plant. Det. Emerson's report says: "Det. Emerson asked Ms. Riggs if she had intentionally burned her vehicle and her reply was 'no.'" He then advised her that information had been received that Donna Costanza had burned her vehicle for her because it had a lot of mechanical problems and she again denied any knowledge. She stated she thinks six union persons were involved. She said two had to be hiding behind her vehicle who set it on fire while two others on top of the hill set the trailer on fire. She said the other two were observed by she and her brother at the North End of the median.
"She stated Donna Costanza does not have the guts to set a vehicle on fire. She stated Donna had a cocaine problem and had contacted her by telephone about two months ago. She has not heard from her since.
"She further stated she would take a polygraph to clear her of any involvement in this offense."
· Three days later Det. Emerson wrote another memo, which said: "On 2-13-95 at about 1345 hrs. Det. Don Emerson R-1166 of the Bomb and Arson Section received a telephone call from a person who identified himself as John Cullom who stated he is an attorney retained by Deborah Riggs and in the future if she needed to be contacted by the police he must be notified first.
"He further stated she will not make any additional statement and will not submit to a polygraph examination."
ORGANIZED LABOR
On Feb. 9, 1989, Special Agent Schram of the DOL wrote a 13-page report pointing the finger of blame directly at organized labor.
Although, at the trial of the five defendants, an executive of Brown Brothers Construction testified that there was no labor unrest at the construction site, this report by Schram, which identified 11 targets of the federal investigation, tells a far different story. The number of labor incidents listed by Schram were voluminous, and the New Times is listing only those immediately preceding the explosion: .
· Sept. 12, 1988: Mountain Plains Construction Company begins work at Highway 71 and 87th Street, Kansas City, Missouri. This is the location of the future fatal explosion. Mountain Plains Construction utilizes employees from OE (Operating Engineers) 101 and Laborers 663. Mountain Plains refuses to sign a CBA with IBT (International Brotherhood of Teamsters) 541.
· Systematically, 400 gallons of diesel fuel and 40 gallons of engine oil are leaked from machinery located at the Highway 71 and 87th Street Construction site. (Ed. Note: Eight years later, at the trial, Brown Brothers would say this may not have happened, it might have been employee error).
· Sentinel Security is employed by Brown Brothers Construction Company for the Highway 71 and 87th Street Construction site. .
· Oct. 4, 1988: The Lenexa Kansas Police Department received a bomb threat directed against Southern Red-E-Mix (Ed. Note: Southern Red-E-Mix was a non-union company). .
· Oct. 11, 1988: Paul Denoon, operator at Southern Red-E-Mix, is approached by Rodger Kaminska, BA (business agent), OE 101, and requested to sign an authorization card.
· Oct. 14, 1988: Southern Red-E-Mix delivers concrete to Brown Brother Construction at the Highway 71 and 87th Street construction site.
· Dirt is added to a bulldozer's transmission at Brown Brothers Construction Company causing $15,000 in damage.
· Oct. 19, 1988: Sentinel Security is released after one of their guards is found asleep at the Highway 71 and 87th Street Construction site.
· Oct. 25, 1988: Jim Thompson, driver for Southern Red-E-Mix, receives a telephone call from Robert Gilliham, BA, IBT 541, who solicits Thompson's union membership.
· Oct. 28, 1988: Southern Red-E-Mix delivers cement to Brown Construction Company at the Highway 71 and 87th Street construction site.
· Oct. 30, 1988: Ameriguard Security is hired by Mountain Plains Construction Company for the Highway 71 and 87th Street construction site. .
· Nov. 4,1988: Southern Red-E-Mix delivers concrete to the Highway 71 and 87th Street construction site.
· Nov. 9, 1988: Rodger Kaminska, BA, OE 101 is seen at the entrance to Southern Red-E-Mix ...Kaminska is seen with a IBT 541 member ... .
· Nov. 9, 1988: Greg Halphin, a member of LIUNA 663, is seen picketing the Highway 71 and 87th Street construction site. .
· Nov. 9/15, 1988: OE 101 and IBT 541 reestablish picket lines at Southern Red-E-Mix and at the mid-town construction site at Highway 71 and 87th Street.
· Nov. 10, 1988: Southern Red-E-Mix files charges with the National Labor Relations Board.
· Nov. 12, 1988: Gregory Halphin is laid off from Beamer Construction Company where he was a blast driller.
· Nov. 18, 1988: National Labor Relations Board sends settlement agreements to IBT 541 and OE 101.
· Nov. 21, 1988: The Heavy Construction Association Of Greater Kansas City and the Clarkson Construction Company files an injunction and restraining order and damages against IBT 541 (Richard Milone, Robert Gilliham, and Gayle Starling) and OE 101 (Sam Long and Rodger Kaminska).
· Nov. 22, 1988: An article appears in The Kansas City Star pertaining to the above injunction and restraining order.
· Nov. 23, 1988: Southern Red-E-Mix delivers concrete to the Brown Brothers Construction Company at the mid-town construction project Highway 71 and 87th Street.
· Nov. 24, 1988: Security guard Debra Riggs observes a vehicle on the construction site at Highway 71 and 87th Street. Guard Riggs spotlights this vehicle as it leaves at a high rate of speed. This vehicle believed to be a red 1961 or 1962 pickup truck slams on its brakes causing Riggs to rearend the suspect vehicle. The vehicle then departs at a high rate of speed. Guard Riggs believed the vehicle was occupied by two individuals.
· Nov. 28, 1988: IBT 541 and OE 101 are ordered to stop picketing and to post the order notice at the union halls.
· Nov. 29, 1988: Early in the morning hours, the explosion takes place claiming the lives of six firefighters at the mid-town construction site, highway 71 and 87th Street, Kansas City, Missouri.
So, by February of 1989 the KCPD was running in one direction and the federal government in another.
RONNIE EDWARDS
On Dec. 12, 1988 Det. Ron Randol went to Center High School to check out a story that a 17-year-old student named Ronnie Edwards had said that Bryan Sheppard, Ben Craft and Derek Smith were responsible for the explosion.
When questioned, Ronnie Edwards denied any knowledge of the incident. On Feb. 16, 1989, Edwards told police that Richard Brown and Chuck Jennings had come to his house at 8511 Wornall in Dec., 1988: "Well Richard came in and he started bragging about how the cops took him down to question for eight hours, and he had mentioned that him and Chuck Jennings went up to that construction site, I guess trying to steal something or just get something out of that trailer. And he tried to get in the trailer and I guess Chuck went over to get into the car and I guess he set it on fire with some kind of substance, I don't know what it was. He tried to set it on fire. And I guess they left, cause I, I know they was drunk."
Edwards said Brown and Jennings were driving Bryan Sheppard's car, but that Sheppard didn't know what they were doing , "...cause Bryan wouldn't let them do that, but they probably used it and said they had to get something else."
Edwards said that Allen Bethard, who rented a room at the house, also heard the statement. He said that several females, who were in the front room, would not have heard what was said.
Police questioned a number of people who had attended the party, but no one corroborated Ronnie Edward's claims.
Enter Jack Albrecht, a portly former police officer turned private detective. Albrecht put together a packet of alleged interviews, wherein he claims he got seven people to corroborate hearing Bryan Sheppard say he and Richard Brown and Chuck Jennings caused the explosion.
Based in part on Albrecht's material (who has always said he was after the reward), a Jackson County Grand Jury met in secret for 11 hours in late March, 1989. Among the witnesses appearing at this grand jury were the Riggses, Wilda Romi (Richard Brown's grandmother), Ronnie Edwards' mother, Kathy Edwards (who said the police were "shooting in the dark"), jail inmates John Driver and Kelly Kivett, Darlene Edwards and a very drunk Frank Sheppard.
Darlene Edwards and Frank Sheppard were rowdy all day, according to the Star. Edwards told the Star that she and Frank had been arrested four days after the explosion and grilled for four-and-one-half hours. Frank Sheppard told the Star "that police might believe he and his brother were involved because they are well known as neighborhood "bad guys." Frank Sheppard also said he thought someone was at the construction site to steal dynamite and blasting caps, then set the trailers on fire to cover their tracks "and accidentally killed somebody."
After testifying before the grand jury, Sheppard told the Star, "The stupid firemen made a mistake." That remark has generated a lot of hatred toward Frank Sheppard over the years.
The grand jury came to naught. As Albrecht would later write to Albert Riederer, the Jackson County prosecuting attorney at the time: "I told Richard Brown that I had taken my investigation and my seven witnesses to the Kansas City, Missouri Police Department Homicide Unit and subsequently there was a Grand Jury investigation held because of the new evidence that I had brought the police department. I further explained to Richard that he would have been indicted at that point in time but Dale Close, Assistant Jackson County Prosecutor, made a mistake when he put Frank Sheppard, Brian Sheppard's uncle, in the same room with my seven witnesses and they were scared and intimidated by Frank and so when they got in front of the Grand Jury all but one nutted up and said they didn't remember the conversation at the party which was held at 8511 Wornall Road, Kansas City, Missouri, where Brian Sheppard admitted that he, Richard Brown and Chuck Jennings started the fire which caused the explosion and subsequently killed the six Kansas City firefighters."
When Will Bunch filed a motion prior to trial demanding that the government produce Albrecht's reports (Albrecht said he had given his only copies to the police department and the Jackson County prosecutor) - since they would establish the innocence of Darlene Edwards, Frank Sheppard and Skip Sheppard - Paul Becker told U.S. Magistrate Sarah Hays that the reports had disappeared from all files and therefore could not be turned over to the defense. Albrecht, apparently still hoping to collect the reward, refused to cooperate with the defense.
Six years later, on Jan. 25, 1995, Ronnie Edwards was telling an entirely different story. On that date he was taken to the Bomb and Arson Unit and gave the following statement:
Q (by KCPD): Will you tell us where you were and what you were doing prior to the explosion?
A: (Ronnie Edwards): Yes, I was at the bar at 89th & Troost. Darlene Edwards was there and I was with Allen Bethard. Richard Brown and Brian Shepard came into the bar and Johnny Driver was out in the car. Richard or Brian asked me if I wanted some C.B.s. I knew they were the Motorola Intercoms from the construction site at 87th and 71 Highway. They had stolen some there before and I had bought them and I told them to go back and get some more. They had sold me six for $200.00 each. I left the bar at 2:30 a.m. Richard, Brian, Darlene and Frank Shepard left to go to 87th and 71 Highway. Frank Shepard had been in the car with Johnny Driver.
Q: Whose car were they in?
A: They were in Brian Shepard's car, the '78 Olds Toronado.
Q: Where did you go?
A: I went home with Allen Betherd who was living with me at the time at 8511 Wornall.
Q: What did you do next?
A: After about five minutes, Allen and I left my house and drove to the QuickTrip at 85th and 71 Highway. We left about 3:30 a.m. and got there about 4:00 a.m. While we were on the way, the first explosion took place. After we got to the QuickTrip, we got gas and then the second explosion took place. After the first explosion but, before the second explosion, I was pumping gas and I saw Brian Sheppard's black Toronado. Darlene Edwards was driving northbound on 71 Highway, about 70 miles an hour. I saw Frank Sheppard, who was the passenger in the front, Brian Sheppard was in the back, with Richard Brown and Darlene Edwards later told me there was another guy in the back who she later told me was Johnny Driver.
After taking this statement, the police asked Ronnie if he would be willing to make some drug buys from his stepmother, Darlene Edwards, and he agreed.
Over the next several weeks, Ronnie Edwards met with ATF Agent True, and local police, and he was wired for sound and given money. He would then go to Darlene's house looking for dope. On each occasion, Darlene would not have any drugs of her own, so she and Ronnie (and/or John Attebury, who was living with Ronnie's mother) would go looking for a drug dealer. Darlene would make the buy and give the drugs to Ronnie (or John), keeping a small portion for herself. On the third of what would be six transactions, the drug dealer pulled into a filling station across the street from a school - a location that would later result in Darlene receiving a much harsher prison sentence for purchasing drugs near a school.
When True got around to busting Darlene, it was no ordinary drug bust. Although Darlene Edwards had lived in tents in her neighbors back yards on more than one occasion over the years, she was now considered so important that the drugs she gave to Ronnie Edwards were hand-carried to Chicago to be tested.
On Feb. 17, 1995, the ATF asked Darlene if she would come to its office to discuss the firefighters case. After she had been there about a half hour, the agents began - without her knowledge - to videotape the interview. She is shown on the tape as relaxed, friendly, fully cooperative - including offering to take a polygraph test when True said there were people who had said she was involved in the explosion.
Prior to the videotape being started, True had brought Ronnie Edwards and John Attebury in to confront her, but once face to face with her, according to Darlene's comments to True (which True did not deny) they waffled on whether she had made admissions to them.
During the interview - which she thought was about the deaths of the firefighters - True asked her about her drug usage, which she readily admitted to, and about her sales, which she also admitted to.
Then True sprang the trap. He opened the door and had a waiting DEA agent come into the office. It was explained to her that Ronnie Edwards had been wired when she made buys for him.
Anyone watching that tape would have to feel a little sorry for Darlene. She sat there for a moment with a very befuddled look on her face, then it was as if a cartoon balloon opened over her head with "Uh-Oh" written on it.
As she began to panic with the realization that she was going to jail, True leaned forward and told her that she had a "window of opportunity" - that what they really wanted from her was her cooperation on the firefighter case.
"It doesn't matter if you put me away forever," she wailed, "it won't change the truth." She swore she didn't know anything about the firefighters case, and again offered to take a polygraph test.
Then this brief exchange occurred:
Agent: And we're still giving you that opportunity to talk to us.
Darlene: Yeah.
Agent: ...to sign this.
Darlene: But I don't know.
Agent: Darlene, you do know.
Darlene: No, I don't know. I don't know.
Agent: This is your chance.
Ronnie Edwards wasn't finished yet. On Sept. 27, 1995, he appeared before a federal grand jury. Earlier that day several walkie-talkies had been introduced as evidence before the grand jury. Then, however, it developed that the walkie-talkies had never belonged to Ronnie Edwards, they had belonged to Allen Bethard, who had sold them for $20 each. Edwards said he didn't know where Bethard had gotten the walkie-talkies.
Prosecutor Becker then had this exchange with Ronnie Edwards:
Q. Now, in an earlier report than I have of an interview with you, you talked about Bethard having six of these and that you bought them for $200 each.
A. Yes.
Q. Is that correct?
A. It's somewhere around there. The money might not be precise but the quantity of CBs yes.
Therefore Becker misled the grand jury : from what Becker had said, the grand jury did not realize that Ronnie Edwards had originally said he'd bought the walkie-talkies from Richard Brown and Bryan Sheppard, and that the CBs had come from the construction site. Most disturbing of all, however, is the fact that it was Becker who said: "Now, in an earlier report that I have of an interview with you, you talked about Bethard having six of these and that you bought them for $200 each."
It wasn't Ronnie Edwards misrepresenting what was in the earlier report, it was Becker, an officer of the court who is duty bound to tell the truth. Then, Ronnie Edwards came up with yet another completely new and damaging scenario against the defendants, saying he was at a barbecue the day before the explosion with "Frank Sheppard, Skip Sheppard. I was there. Tommy, my brother was there, Edwards. Becky was there. Darlene was there. Frank and Skip and Richard and Brian Sheppard, they were all talking about planning the explosion - not the explosion but going up there and stealing from the explosion site."
While the federal government was hanging on every word Ronnie Edwards said, its agents seemed deaf to anything unfavorable said about him, their star witness. On Feb. 5, 1996, Agent True interviewed a Steve Martin by telephone. True's notes on that conversation included the following summary:
"Mr. Martin said he is the same individual that called ATF in Feb. 1995 offering information regarding the Nov. 1988 fire fighter's deaths...Mr. Martin said at one time he worked at Precision Lawn, which was located on Holmes in Kansas City, Missouri, along with an individual by the name of Ronnie Edwards.
"On one occasion while he and Ronnie Edwards were sitting together in their truck waiting to do some lawn work, Ronnie Edwards told him that he was involved in the explosion that killed the fire fighters. He and some friends went to the construction site looking for something to steal. They may have gone to the construction site twice. Edwards said they got some walkie-talkies, described as 'high powered' walkie-talkies.
"During this conversation, Ronnie Edwards also said they set a trailer or something on fire and that they were messing with what he described as 'little pellets'.
When Ronnie Edwards appeared before the federal grand jury he was not asked a single question about this allegation, even though he was the only witness to ever mention the 'pellets' that were mixed with the ammonium nitrate.
The defense lawyers desperately wanted to put Ronnie Edwards on the witness stand during the trial to show the jury how this case was really put together - particularly Edwards' role in setting up Darlene for a drug bust that allowed True the occasion to elicit a damaging statement from Darlene, as well as to demonstrate the rank inconsistencies in Ronnie Edwards' previous sworn testimony that True and Becker had used in getting the grand jury to indict the five people it did. But Edwards was now nowhere to be found. Shortly after John Dawson - a retired Kansas City police sergeant hired by Will Bunch to subpoena Ronnie Edwards - left his business card in Edward's door, with a note asking him to contact Dawson, Becker threatened to have Dawson arrested and charged with tampering with a government witness.
Despite repeated attempts to serve him with a subpoena, or even talk to him, the defense was unable to find Ronnie Edwards.
THE DEFENDANTS
In 1988 Darlene Edwards and Frank Sheppard, then both in their 30s, lived together at 2016 E. 83rd. Also living there was Becky Edwards, Darlene's 11-year-old daughter (Ronnie Edward's half-sister). Darlene and Frank had been romantically involved since 1982. The house was rented by Darlene, and boarders occasionally lived upstairs. Frank and Darlene were unemployed. They would occasionally cut lawns for a living, and Frank worked odd jobs. And, by all accounts, Frank stole anything that wasn't nailed down. Darlene had broken her back in 1987 and collected $30,000. That had carried them for a while, but they were both doing dope and Frank was a serious drinker, having been barred from most of the taverns he frequented at one time or another. Neighbors said that Frank and Skip had a white pit bull that they would sic on other dogs in the neighborhood.
Darlene's entire family hated Frank passionately. Apparently on one occasion he badly beat up Tommy Edwards, Darlene's teenage son, and the boy was sent to live with Darlene's parents. Becky Edwards, Darlene's younger child, was bitter that her brother was sent away and she was left behind. Becky would later say that Frank abused Darlene badly, and that he made sexual passes at her several times while he was drunk. One witness alleged that Frank had once used Darlene as a battering ram.
Skip, Frank's younger brother by nine years, was living about a mile away with his sister and brother-in-law, Naomi "Didi" Baker and Larry Baker. Skip was unemployed, but collected $650 a month disability from a car accident in 1983, wherein he'd suffered brain damage and had been in a coma for several weeks. Skip, too, had a drinking and drug problem. At the time of the explosion, Skip was dating Elizabeth Harrigan, who said Skip was asleep beside her the night of the explosion. She also said Skip had knocked her front teeth out once.
Also living in the neighborhood was Bryan Sheppard, the 18-year-old nephew of Frank and Skip Sheppard. Bryan's best friend was Richard Brown, another 18-year-old who lived a few blocks down the street from Darlene. Both Bryan and Brown claimed they were at their homes asleep at the time of the explosion.
In the days after the explosion, Darlene - described by many who know her as a "loud-mouthed bitch" - began telling people she had seen a black pickup truck resembling Richard Brown's go racing by her house shortly after the first explosion.
This rumor got back to the police and on Dec. 8, 1988, whereupon the police arrested Frank and Darlene and took them to police headquarters to question them about what they knew.
Darlene told the police that she and Frank had been at Larry and Didi Baker's earlier in the evening. She'd left because Frank was drinking too much, and Frank had come home later. They went to bed. She got up briefly during the night and saw that Frank was sleeping on the living room divan in his shorts. She was later awakened by the first explosion, she said.
She said as she looked out the window she saw a black truck resembling Richard Brown's go by. Then she said she saw a maroon-over-white vehicle drive southbound on Brooklyn - and that this vehicle looked like one owned by Chuck Jennings (a friend of Richard Brown).
The police began to hassle Richard Brown - questioning him repeatedly. It didn't take Brown long to figure out that Darlene was the source of his problems with the police. At one point, when Brown was told Darlene had said she saw him at QuikTrip, he commented bitterly, "How the fuck can she see me in two places at once."
Brown then began to orchestrate suspicion against Frank and Darlene. On one occasion he said his sister, Shannon, had walked into Darlene's house after the first explosion and saw Darlene, Frank and someone else sitting in the living room fully clothed in the dark.
At one point - after the police began putting heat on Brown - Brown and Frank Sheppard got into a fight and the police were called. On another occasion, when police were questioning Bryan Sheppard, he said his uncles might have had something to do with the explosion because they were low-lifes and capable of it.
In many ways Marlborough is like a small town - people gossip and rumors spread like wildfire. Frank and Skip were arguably the most notorious characters in Marlborough for a long time. People would get nervous when they came into a bar and started drinking, because trouble was apt to follow. Some bar owners would order them out as soon as they showed any sign of getting tipsy.
Frank is somewhat handsome and intelligent. Those who know him well say he is a Jekyll and Hyde - a pretty decent guy when he's sober and a loud-mouthed lout when he's not. Skip is quieter and people say Frank is the only one Skip really listens to. Because of several bad car wrecks, and a lot of fights, Skip, a large man, has a battered, scarred look that tends to frighten people. During the trial someone remarked to me that Skip looked like he could strangle you with one hand and eat a ham sandwich with the other.
It's almost a certainty that Ronnie Edwards heard Darlene talking about the black pickup truck and maroon- over-white vehicle going by her house after the explosion, and that could be the source of his "revelations" to police.
This mosaic of spite and "getting-even" between Richard Brown and Darlene and Frank would escalate over the years.
On Feb. 3, 1995, while the government was preparing to charge Darlene on the drug charges, agents from ATF talked to Richard Brown. For the first time, Brown said he'd been at QuikTrip the night of the explosion, and saw Darlene, Frank, Skip, Larry Baker, Didi Baker and John Driver walking from the direction of the explosion site with a gasoline can. Brown refused to let the ATF videotape the statement, and refused to initial any photographs he had identified.
Eight days later Brown changed his story, saying he had only seen Frank, Skip and Darlene, that they bought a can of gas and walked back toward the explosion site. At this time he said his sister and Michael Demaggio had gone to Darlene's after the explosion and saw Darlene, Frank and Skip sitting in the dark fully clothed. Again, Brown refused to let the ATF record his statement.
Brown explained that he hadn't mentioned this incident earlier because he hadn't remembered it until his then girlfriend, Alena Fantauzzo, reminded him. However, Fantauzzo has always denied being with Brown the evening of the explosion.
If Brown thought that his not letting the ATF record his statements would prevent the agents from using what he had said, he was wrong. When Darlene was arrested on Feb. 17, 1995, she was shown summaries of what Brown had said. Two days later, remembering that "window of opportunity" that True had promised her, Darlene called ATF and said she was ready to cooperate. This time she said Richard Brown and Bryan Sheppard woke her up early in the morning and told her their car had run out of gas.
She said she drove them to QuikTrip and then they directed her toward the construction site. She said she could hear them talking and it sounded like they were talking about doing something criminal.
She said they mentioned something about starting a fire, that she told them they were crazy, because construction sites have explosives on them. She said she told them to get out of the car and she drove off.
The "window of opportunity" True had promised her turned out to have bars on it. Once ATF had her statement, the agents then demanded that she admit her personal involvement in the explosion, which she refused to do. She pled guilty to one count of distributing narcotics near a school and was sentenced to 64 months in federal prison.
It was too late, though. The statement she gave on Feb. 19, 1995, would turn out to be the key piece of evidence in convicting all five defendants (it was the first thing the jury asked for after they began deliberating). The jury was not allowed to see the earlier statement, wherein she denied any knowledge and offered to take a polygraph.
Firefighters Case Part I andPart II Five innocent people were convicted in February 1997 in the deaths of six Kansas City firefighters in 1988. These two stories run a total length of 20,000 words, and won the Missouri Bar Association's annual "Excellence in Legal Journalism" award. On Oct. 30, 1998, the 8th U.S. Circuit Court of Appeals denied the appeal in the Kansas City Firefighters case. Read the full opinion here and our analysis of the opinion. On Oct. 4, 1999, the U.S. Supreme Court declined to grant certiorari in the case.
Ed Poindexter and Mondo we Langa, the leaders of the Omaha chapter of the Black Panther Party in the early 1970s, were framed for the murder of Omaha Police Officer Larry Minard as part of J. Edgar Hoover’s clandestine, illegal counterintelligence operation known as COINTELPRO that targeted Black Panther Party leaders all over the United States. Although neither man had any connection to the murder of the young officer, both remain imprisoned for life.
The murder of Omaha, Nebraska policeman Larry Minard over 40 years ago and the COINTELPRO-inspired investigation that followed landed two Black Panther leaders – Ed Poindexter and Mondo we Langa – in prison for life. The scapegoats came to be known as the “Omaha Two.” In order to pin the police officer’s murder on the two leaders of Omaha’s Black Panther Party, FBI Director J. Edgar Hoover gave a secret order to withhold a crime laboratory report on the identity of the anonymous caller that lured the 29-year-old policeman to his death.
Hoover directed the Federal Bureau of Investigation from 1924 to his death in 1972. He also directed a secret, illegal, counterintelligence operation within the FBI from 1956 to 1971, codenamed COINTELPRO that targeted radical groups such as the Panthers, Students for a Democratic Society, and the American Indian Movement. COINTELPRO’s stated aim was to destabilize these groups by either murdering their leaders or getting them convicted of felonies. (COINTELPRO is an acronym for Counterintelligence Program.)
Attorney Paul Wolf, author of the report COINTELPRO: The Untold American Story, has written, “At its most extreme dimension, political dissidents have been eliminated outright or sent to prison for the rest of their lives.” Wolf explained one FBI tactic involved the arrest and prosecution of targeted individuals for “spurious reasons.”
“The FBI made use of informants, often quite violent and emotionally disturbed individuals, to present false testimony to the courts, to frame COINTELPRO targets for crimes they knew they did not commit. In some cases the charges were quite serious, including murder,” says Wolf.
The roots of COINTELPRO go deep as J. Edgar Hoover established his career with the infamous Palmer raids and cases against anarchist Emma Goldman and Black Nationalist Marcus Garvey.
In 1926, Hoover wrote to Special Agent John Dowd in the Boston FBI office: “I would like to be able to find some theory of law and some statement of facts to fit it that would enable the federal authorities to deal vigorously with the ultra-radical elements that are engaged in propaganda and acts inimical to the institutions of our country.”
Hoover finally created his own theory of law and thousands of groups and individuals were targets of COINTELPRO over the years as Hoover expanded the clandestine operation to keep pace with tumultuous events as the civil rights and anti-war movements grew in the mid-1960s.
“FBI headquarters set policy, assessed progress, charted new directions, demanded increased production, and carefully monitored and controlled day-to-day operations. This arrangement required that national COINTELPRO supervisors and local FBI field offices communicate back and forth, at great lengths, concerning every operation,” explains attorney Brian Glick, author of the book War at Home.
So-called “Black Nationalist Hate Groups” were added to COINTELPRO assignments on August 25, 1967 with the mandate from Hoover, “to expose, disrupt, misdirect, discredit, or otherwise neutralize” specified organizations and 1,246 FBI agents were given racial intelligence assignments.
By 1968, Hoover had 1,678 agents assigned to COINTELPRO around the country and had established a “Rabble Rouser” index of domestic political activists. The Black Nationalist COINTELPRO had been expanded from 23 to 41 FBI field offices on March 4, 1968, including Omaha, Nebraska.
J. Edgar Hoover
On August 5, 1968, J. Edgar Hoover ordered COINTELPRO agents to conduct media campaigns against the Black Panthers. He directed his agents to encourage reporters to investigate the group and furnish FBI “background data” to interested reporters. Hoover’s memo specifically listed Omaha as one of the cities where he expected a counterintelligence operation using the local news media.
On September 8, 1968, Hoover told The New York Times the Black Panthers were “the greatest threat to the internal security of the country.”
Two weeks later, on September 27, George Moore, head of Racial Intelligence, sent William Sullivan, head of Domestic Intelligence and third in command of the FBI, a COINTELPRO memorandum advocating an “accelerated” counterintelligence program against the Black Panthers. Moore described the Black Panthers, “It is the most violence-prone organization of all the extremist groups now operating in the United States.”
Moore elaborated on one of the goals of Black Nationalist COINTELPRO actions, “Our counterintelligence program may bring about results which could lead to prosecution of these violence-prone leaders.” Moore had a willing ally in his effort to accelerate COINTELPRO against the Black Panthers in William Sullivan. Sullivan was a veteran of counterintelligence and had orchestrated the FBI wiretap campaign against Martin Luther King Jr., including a sex-tape blackmail scheme to encourage King to commit suicide.
In 1970, J. Edgar Hoover stepped up his clandestine operations with the Key Black Extremist Program directed at those “black activists who were particularly agitative, extreme, and vocal in their demands for terrorism and violence”
Noam Chomsky, a long-time COINTELPRO critic, charges, “FBI provocateurs repeatedly urged and initiated violent acts, including forceful disruptions of meetings and demonstrations on and off university campuses, attacks on police, bombings, and so on.” Chomsky says there is plenty of blame to go around.
Chomsky is blunt: “The criminal activities of the FBI were initiated under the liberal Democratic administrations and carried further under Nixon. The programs were (partially) exposed during the Watergate period, and though incomparably more serious than anything charged against Nixon, they were virtually ignored during this period by the liberal national press and journals of opinion, and only marginally discussed since.”
David Cunningham, author of There’s Something Going On, a detailed study of COINTELPRO, wrote in his book, “The repression of the Panthers marked the most savage incarnation of COINTELPRO.” Hoover’s intense assault on the Black Panthers was an outgrowth of a lifetime of racist ideology that kept the FBI virtually an all-white agency during Hoover’s rule.
William Sullivan described COINTELPRO to a Senate sub-committee investigating the illegal operation, “This is a rough, tough, dirty business, and dangerous.”
In mid-November 1969, FBI agent Roy Mitchell recruited Fred Hampton’s bodyguard William O’Neal in Chicago, ultimately paying him $10,000. Two weeks later O’Neal supplied Mitchell with a diagram of Hampton’s apartment, identifying the location of Hampton’s bed. Mitchell then met with officers from the State’s Attorney special police unit and planned an armed raid on Hampton’s apartment.
On December 4, 1969, 14 heavily-armed members of the prosecutor’s special unit surrounded Fred Hampton’s apartment at 4:45 a.m. Police fired 90 bullets into the apartment specifically targeting Hampton’s bedroom where the Panther leader was asleep with his pregnant girlfriend. Peoria Panther leader Mark Clark, who was on security, fired one shot as he died during the fusillade. Hampton, wounded during the attack, was shot at point blank range in the head twice as he lay bleeding on his bed. Attorney Jeffrey Haas, who was Hampton’s lawyer, minces no words recently authoring a book about the killing titled The Assassination of Fred Hampton.
In Los Angeles, on December 8, 1969, a FBI informant, Melvin “Cotton” Smith provided inside information on the residence of Black Panther security head Elmer Gerald “Geronimo” Pratt. A pre-dawn FBI coached raid by the Los Angeles Police Department, instead of killing Pratt, resulted in a four-hour gun battle. Thirteen Panthers were arrested after the firefight, putting Pratt in Hoover’s cross-hairs. (See FBI Memo on Pratt)
Geronimo ji-Jaga Pratt
Attorney Paul Wolf draws a comparison: “The similarities between the Chicago and Los Angeles raids are undeniable, with a special local police unit closely linked to the FBI involved in both assaults, spurious warrants seeking “illegal weapons” utilized on both occasions, predawn timing of both raids to catch the Panthers asleep and a reliance on overwhelming police firepower to the exclusion of all other methods.”
In June 1970, Hoover authored a secret Special Report 5 for the White House where Hoover called the Black Panthers “the most active and dangerous black extremist group in the United States.”
Meanwhile, in July, Omaha police learned of three men selling stolen dynamite. A buy was set up.
Omaha Police Captain Murdock Platner would later testify in Washington, D.C. to the U.S. House Committee on Internal Security that the dynamite had been stolen in Des Moines, Iowa and was suspected to be the source of explosives used in recent Omaha bombings:
“We received information from a party that had been approached to buy dynamite. We had him buy it and he bought 10 sticks. It was 2 and-a-half by 16-inch sticks. He came back later and said he could buy more of this dynamite. So we set for him to buy and then…we did move in and arrested three young men in a car. In their possession they had 41 sticks of this same type of dynamite.”
Platner called the owner of Quick Supply Co. in Des Moines, Iowa where dynamite of that size was stolen earlier in the summer. According to Platner, “he was almost positive it had to be their dynamite.” Platner investigated further, “Sergeant Gladson checked back with the manufacturer of the dynamite, and they told him that was the only shipment of that size dynamite in the year 1970.”
Luther Payne, Lamont Mitchell, and Conrad Gray were arrested in possession of dynamite during a planned traffic stop. Eager to escape felony charges the three men told police a story that found an interested audience.
The three men in jail denied any involvement in the Des Moines burglary. Instead, they claimed they found the dynamite in the back room of a local anti-poverty agency. The lead detective working the case was Jack Swanson, who was the complaining witness against the men in court.
The day after the trio’s first court appearance in Omaha, the U.S. Senate Committee on Government Operations began hearings in Washington, D.C. on the Black Panthers and bombings around the country.
Payne, Mitchell, and Gray remained in jail, unreported by the local news media, unable to post bond.
Marin County Courthouse August 7, 1970
On August 7, 1970, in Marin County, California, a courtroom rescue attempt by Black Panther George Jackson’s brother, Jonathan, resulted in a shootout killing four people including Judge Harold Haley. The bloody courthouse shootout captured national attention and helped demonize the Black Panthers to many. Angela Davis had a warrant issued for her arrest in the aftermath of the California bloodbath, accused of supplying a weapon and ammunition. Hoover would soon add her name to the FBI’s famed Ten Most Wanted List.
Two days after the Marin County fiasco, a paper sack containing 10 sticks of dynamite was found along a street in Bellevue, an Omaha suburb. The news media, silent about the arrest of Payne, Mitchell, and Gray, snapped to action and duly reported on the sack of dynamite.
Special Agent-in-Charge Paul Young had been the recipient for the preceding year of a series of COINTELPRO memos from J. Edgar Hoover demanding results against the leadership of the Black Panthers in Omaha. The lethal ferocity of Hoover’s secret operation had already been revealed in Chicago COINTELPRO operations against Fred Hampton.
Before a week had passed since Hampton’s death, Hoover sent a COINTELPRO memo to Paul Young, complaining about a lack of action against the Black Panthers in Omaha.
On December 10, 1969, Hoover sent Young a critical memorandum. Hoover wrote, “You stated…the United Front Against Fascism (UFAF), the successor to the Black Panther Party (BPP) in Omaha, is composed of approximately eight to 12 members, and their only activities have been to sell The Black Panther, BPP newspaper, and publication of a UFAF newsletter.”
Memo From J. Edger Hoover To Omaha FBI Field Office
Hoover continued: “While the activities appear to be limited in the Omaha area, it does not follow that effective counterintelligence measures cannot be taken. As long as there are BPP activities, you should be giving consideration that type of counterintelligence measure which would best disrupt existing activities. It would appear that some type of counterintelligence aimed at the disruption and publication of their literature would be in order.”
The FBI director told the Omaha office to target the leaders of the UFAF for counterintelligence action. Ed Poindexter and Mondo we Langa had stepped up to lead the affiliate Black Panther chapter in the Nebraska city and were now the focus of Hoover’s attention.
Ed Poindexter was a six-year Army veteran who voluntarily served in Germany and Vietnam. He went to work for the Post Office upon his discharge from the service. Poindexter joined the Panthers to help the community after being informed of the group by his sister; however his membership in the Panthers led to his departure from the Post Office after his picture was published in the daily newspaper as a member of the group.
Mondo we Langa was an outreach worker with the Greater Omaha Community Action agency whose self-stated motive for joining the Panthers was love for his brothers and sisters. Mondo was popular at Holy Family church where he played guitar and developed a following as a writer for two alternative newspapers, Asterisk and Buffalo Chip. Mondo became a regular fixture at Omaha City Council meetings where he monitored local issues.
Hoover wrote to Young: “It is also assumed that of eight to 12 members, one or two must certainly be in a position of leadership. You should give consideration to counterintelligence measures directed against these leaders in an effort to weaken or destroy their positions. Bureau has noted you have not submitted any concrete counterintelligence proposals in recent months. Evaluate your approach to this program and insure that it is given the imaginative attention necessary to produce effective results. Handle promptly and submit your proposals to the Bureau for approval.”
Paul Young got the message. Young replied to Hoover within days by registered mail promising to go after the UFAF newsletter and the leaders of the Omaha chapter. Young wrote to Hoover, “In addition to this information, indications are that the UFAF is planning to start a liberation school at its headquarters in Omaha in the near future.”
Young continued: “In response to the referenced Bureau letter, the identities of the UFAF leadership are known to the Omaha office. Omaha is presently giving consideration to some type of counterintelligence activity aimed at disruption of the UFAF newsletter or its distribution and counterintelligence measures directed against the leaders of this organization.”
However, on February 24, Paul Young had to tell Hoover he was unable to establish a pattern of Panther activity and was unable to plan a counterintelligence operation. On April 3, Hoover sent approval to Young to send an anonymous letter about Ed Poindexter to Black Panther headquarters accusing Poindexter of ripping off the community and directed Young to coordinate the letter with the San Francisco office.
On August 15, 1970, Paul Young, under a continuing mandate from Hoover to the Omaha FBI office, was plotting a smear campaign against Ed Poindexter using another bogus letter addressed to Black Panther national headquarters in Oakland, accusing Poindexter of collaborating with “Whitey’s newspaper”, the Omaha World-Herald, in an effort to create a rift in the organization.
The Black Panthers in Omaha were not the “lumpen” or street criminals that filled the ranks in some cities. In Omaha, the group worked with anti-poverty agencies, on a petition drive, operated a liberation school for children, and worked on a breakfast program. The chapter also published a newsletter. None of the surveillance showed any involvement in criminal activity, thus Young faced a limited opportunity for a counterintelligence action.
Omaha patrolman Larry Minard
However, the murder of Omaha patrolman Larry Minard suddenly presented Paul Young with the perfect opportunity to please Hoover if he could make a case against Ed Poindexter and Mondo we Langa
The crime that rocked Omaha was triggered with an anonymous 911 phone call on August 17, 1970. Dawn broke over the city to an overcast drizzle on a Monday morning. The weather matched the mood in the stunned, saddened city. An ambush bombing at 2:11 a.m. had taken the life of a policeman, the father of five young children.
Minard and seven other officers had responded to a 911 call placed by an anonymous male caller with a deep voice who reported a woman screaming at a vacant house. Instead of a screaming woman, the eight officers who converged at 2867 Ohio Street only found an open empty house and a suspicious suitcase just inside the front door.
After a quick search of the house,while examining the Samsonite suitcase, Officer Minard was killed instantly by a powerful, deafening blast that shook the neighborhood and partially destroyed the vacant house. The coroner described severe traumatic injuries to Minard’s skull and torso in the autopsy report.
Omaha Mayor Eugene Leahy heard the explosion from his home 40 blocks away, telling a reporter the next day, “That was a terrific blast.” Leahy called police headquarters after the bombing and was briefed on what happened. The mayor toured the crime scene on his way to work in the morning.
Larry Minard had only been on duty since midnight when he reported for the “A” shift after telling his wife not to worry. Police arrived at the Minard residence about a half hour after the bombing to deliver the terrible news but by then the newly widowed Karen Minard had been awaken by Larry’s police scanner which was blaring reports about an officer down.
The police investigation began immediately as officers sifted through debris looking for clues. Larry Minard’s mangled and burned body lay where he died until 3:50 a.m. while crime scene technicians scoured the premises. Finally, Minard’s body was removed by rescue personnel after a light rain began to fall.
First light brought the start of what would be a day-long procession of motorists slowly driving by the crime scene. A crowd of neighborhood onlookers was also on hand much of the time as people spoke in hushed tones and muted voices.
At 6:05 a.m. off-duty policeman Harold Flemmer called police headquarters after learning of Minard’s death. Flemmer reported he had been pulling guard duty at room 318 of the County Hospital over a prisoner named George McCline. Flemmer said that McCline, who was being held for a July 29th shooting, told him the dynamite obtained from July arrests of three men “had been meant for the new police station.” Flemmer also said that McCline told him, “that at least 12 policemen were going to get it.”
Flemmer related what McCline told him while recovering from surgery: “He further bragged that the policy had been changed and there would be no more burning and looting, from now on it was to be blowing up things. He bragged that Component Concepts had been blown as the owner was a Uncle Tom.” Component Concepts Corporation was a black-owned defense subcontractor that was bombed July 2, 1970, in an unsolved crime.
At police headquarters, a hastily convened meeting of a multi-agency task force called “Domino” was called to order. Principals present were agents from the Federal Bureau of Investigation and the Division of Alcohol, Tobacco & Firearms, detectives from the Douglas County Sheriff’ and the Omaha Police Department. Governor Norbert Tiemann had also ordered the Nebraska State Patrol to send two troopers to work the case.
Retired ATF agent James Moore, from the Kansas City, Missouri ATF office, told about the Domino meeting in his book Very Special Agents:“This meeting has one mission: to catch the cop killers. Preliminary discussion was brief and pointed. The weapon, the method and the target suggested extremists. Panthers and Weathermen murdered policemen this way. The Negro voice on the dispatcher’s tape suggested Panthers.”
Then Moore gave a big surprise: “One of the FBI agents told the group “We have excellent informer coverage of the Panthers, and our key informer advises us that two white males were observed running from the scene shortly before the blast.”
Moore raised the possibility the tip was only a ruse to throw off ATF agents competing to crack the case. However, if the FBI informant had a role in the crime he may have told the agents about two “white males.” Or, maybe two white men really were the bombers.
Although the FBI told the Domino group about white men, SAC Paul Young wasted no time in privately talking with Assistant Chief of Police Glen W. Gates, who was in charge of the investigation into the deadly ambush.
According to a confidential FBI “airtel” memorandum, Paul Young and Glen Gates discussed a piece of crucial evidence the police had – the recorded voice of the anonymous caller captured by the 911 system.
Gates was already working with the ATF laboratory on dynamite analysis from other bombings in Omaha earlier in the summer so it would have seemed natural to accept the help of the FBI laboratory to analyze the 911 recording. However, the FBI offer was conditional: no written report which might end up in court as evidence.
At noon following the bombing, 13 off-duty Omaha policemen led by Captain William Pattavina cornered Mayor Leahy in his office to complain about a lack of support for police. Pattavina and two sergeants, Keith Lant and Robert Pfeffer, met with the mayor for a half-hour while the other 10 officers occupied the lobby.
At 4:05 p.m. the administrator of Girls Town, Harold Youngren, called police headquarters and reported a pushy black book salesman named Frank Fortino who was selling books on Black Studies. Fortino claimed to be a demolitions expert and an officer in the Black Panthers. “He threatened to blow up the school if books were not purchased,” said Youngren.
Despite the FBI tip about the two white males seen fleeing the bomb scene, Omaha police concentrated on arresting members or associates of Omaha’s Black Panther affiliate group. By week’s end, the dragnet begun on Monday through the Near North Side would net 60 black suspects.
At five o’clock in the afternoon, Detective Jack Swanson, head of the OPD Intelligence Unit, reported a call from an FBI agent named Hayes. “He has a witness in the neighborhood of the bombing, who states that there was White Cadilac [sic] which left the scene shortly before the blast at a high rate of speed.”
Swanson continued, “Hayes said he got this information second hand, and that the actual witness was a young Negro male.”
The record of the call from the FBI concluded, “This white Cadillac was supposed to have been occupied by one Negro male, and one white male.”
Swanson also made up a list of 39 members or associates of the National Committee to Combat Fascism, for questioning.
While Swanson worked on his list of NCCF suspects, Sergeant Joseph Boan went to County Hospital to interview prisoner George McCline and finished his report at 9 p.m. McCline gave Boan an earful about alleged dynamite sellers in the Omaha area. McCline said dynamite could be bought from a Mafia-member named Leroy Chiles, from Yano Caniglia at the Cheeta Lounge strip club, and from Bubbles, a dancer at the club.
McCline also said the kingpin of the explosion was “Bussie,” an uncle of Vivian Strong. Vivian Strong was a 14 year-old girl shot to death by Omaha policeman James Loder in 1969, whose killing led to several days of rioting. McCline said Bussie drove a 1967 silver-black Cadillac and that a man named Luther Payne was arrested taking dynamite to Bussie’s house.
Tips kept rolling in. At 9:30 p.m. Omaha officer D. Howard reported an informant overheard a conversation at the Hilton Hotel with a bartender where a hotel employee allegedly said he knew who sold the dynamite and planted the bomb that killed Larry Minard. Howard was unable to locate the hotel employee for questioning.
The day after the bombing in Omaha, a powerful blast at the Federal Building in Minneapolis, Minnesota at 3 a.m. injured a night watchman and caused $500,000 damage. Investigators later determined the bomb had the force of 20 sticks of dynamite. Suddenly the Midwest was on the front line of guerilla warfare. The Minneapolis crime remains unsolved.
Back in Omaha, the round-up of suspects on the Near North Side continued on Tuesday with 11 more arrests bringing a total of three dozen people in custody by the end of the second day of the dragnet.
Glen Gates barred reporters from police headquarters’ fourth floor squad room where police and reporters normally chatted about the daily arrest log as the investigation intensified.
Douglas County Assistant Prosecutor Arthur O’Leary moved in to police headquarters to help coordinate the logistics of the arrests, telling reporters he was there on routine business.
At 8:25 a.m. Sheriff Ted Janning called a police captain and stated that a security guard from his office overheard either prisoner George McCline or Lamont Mitchell, who had been arrested with dynamite in July, at the County Hospital where the inmate stated Vivian Strong had an uncle named Busby who drove a 1967 Cadillac and that “he had something to do” with triggering the bomb
The departure from Omaha of the primary piece of evidence – the recorded voice of Larry Minard’s fatal caller – was noted with a front-page Omaha World-Herald article. The newspaper headlined, “Voiceprint in Bombing to FBI Lab.”
The Omaha World-Herald quoted Acting Police Chief Walter J. Devere: “A copy of the telephone tape in the booby-trap killing of Patrolman Larry Minard has been sent to the Federal Bureau of Investigation in Washington for voiceprint analysis.”
“Voiceprinting – using voice sounds to establish identity – is relatively new and not admissible evidence in court. But it is a good investigative tool,” Chief Devere added.
Jack Swanson got another call from FBI Agent Hayes which he reported at 6:45 p.m. on Tuesday, the day after the bombing. “Hayes says that this was supposed to be a Black Vinel/White 66 Cadillac, [sic] bearing green license plates. The witness did not [see] the number of the plates, nor the state which it was from. This auto was seen going north from Ohio, on 30th at a high rate of speed, and ran the red light at 30th and Binney Sts. It was supposed to have been occupied by one white male, and one Negor [sic] male.”
Swanson dug into his files and at 7 p.m. reported on information he obtained on June 12 about two suspicious white males from FBI agent Hayes. Hayes told Swanson that David Lawrence Coyle was “involved with the SDS [Students for a Democratic Society] and was extremely militant.” Coyle was reportedly recruited by John Herold.
Swanson elaborated, “Also, according to Agent Hayes, FBI, he [Coyle] had stated to one of his sources that they were going to [do] something really big to make people sit up and take notice.”
The FBI’s white Cadillac was not the only Cadillac police were looking for. At 7:45 p.m. another Omaha policeman, Patrick J. John, reported an informant told him about a “dirty red older model Cadalic [sic] with loud mufflers” seen in the neighborhood of the bombing driving suspiciously and then departing at a high rate of speed a “few minutes” before the explosion.
At 11:30 p.m. a Social Security card belonging to Johnnie Lee Bussby was turned over to the property room. The card was found at the scene of the crime in the blast debris the day before by ATF agents and given to Lt. James Perry.
The next day, August 19, at 6:30 p.m. Jack Swanson “observed a White 1966 Cadillac occupied by one Negro male, one White male and one Negor [sic] female.” Swanson radioed for a uniform cruiser to make a stop and bring the occupants in for questioning. The two men spotted by Swanson were James Boose and Lannie Hicks.
According to Swanson’s report, Boose was “a former member of the Black Panther Party.” Lannie Hicks was just a “suspected house burglar.” Nothing came from the interrogations ordered by Lt. James Perry at Swanson’s request
At the Omaha FBI office, Paul Young anxiously awaited word from Washington, D.C. on his request to withhold a lab report on the identity of the anonymous 911 caller who lured Minard to the deadly ambush. Young wanted to use the bombing as an opportunity to satisfy J. Edgar Hoover’s mandate to “destroy” the local Black Panther leadership. The presence of an unknown caller presented a problem in making a case against the Panther leaders.
With Larry Minard’s death Young finally had an opportunity to direct counterintelligence measures against Ed Poindexter and Mondo we Langa. When Young’s confidential memo to Hoover was received by COINTELPRO supervisors at FBI headquarters, a second memo was written for Ivan Willard Conrad,director of the FBI crime lab.
A COINTELPRO agent at FBI Headquarters named W.W. Bradley authored the confidential memo to Conrad following up on Young’s proposal to withhold evidence. The heavily redacted memo, released under the Freedom of Information Act, spelled out that no written report on Minard’s killer was to be furnished.
Bradley’s memo to Conrad, dated August 19, 1970, was sent to top FBI officials including William C. Sullivan. Sullivan was head of Domestic Intelligence and helped create COINTELPRO for Hoover.
Charles D. Brennan also got Bradley’s memo on Larry Minard’s fatal caller. Brennan was a senior member of the daily COINTELPRO directorate that issued illegal commands to the field offices. Brennan had worked in the Omaha FBI office before his transfer to FBI headquarters where he reported to William Sullivan.
Brennan was the most vocal critic of Martin Luther King Jr. within the FBI and had authored an 11-page internal monograph on counterintelligence measures against King leading to the elaborate operation conducted against King. Brennan was aggressive on counterintelligence actions.
A mysterious “Mr. Shimota” also appears on the Bradley memo copy list. FBI Special Agent John E. Shimota was a relatively obscure agent who ended his FBI career working prostitution cases in Fargo, North Dakota. Shimota, who also worked on the Wounded Knee FBI task force in South Dakota, was possibly the agent assigned by Paul Young to coordinate COINTELPRO actions in the Omaha office. The identity of the COINTELPRO agent in Omaha has never been officially disclosed.
Bradley wrote: “By airtel 8/17/70 the Omaha Office has advised that the Omaha Police Department has requested laboratory assistance in connection with a bombing which took place in Omaha 8/17/70. This bombing resulted in the death of one police officer and the injuring of six other officers and is apparently directly connected with a series of racial bombings which the Omaha Police have experienced. The Police were lured to the bomb site by a telephonic distress call from an unknown male.”
Blanks appear in the COINTELPRO memo where text has been crossed out: “[REDACTED] of the Omaha Police has requested [REDACTED]. The SAC [Special Agent-in-Charge], Omaha strongly recommends that the examination requested by the Omaha Police Department be conducted.”
“[REDACTED] It is felt, in view of the SAC’s recommendation and the significance of this case, an exception should be made in this case in order to assist the Omaha Police in developing investigative leads. The results of any examination will not be furnished directly to the police but orally conveyed through the SAC of Omaha.,” wrote Bradley.
The confidential memo concluded with a recommendation: “[REDACTED] Omaha Police in developing investigation leads. If approved, the results of any examinations will be orally furnished the police on an informal basis through the SAC, Omaha.”
The memorandum to Ivan Conrad bears his initials twice. Once, when he reviewed the request, and a second time after he talked to J. Edgar Hoover confirming the lab was not to issue a formal report on the recording of the anonymous 911 caller who lured Larry Minard to his death.
Conrad talked with Hoover the same day Bradley sent the COINTELPRO memo. Conrad wrote on the document, “Dir advised telephonically & said OK to do.” Conrad then initialed and dated the note about Hoover’s command on withholding formal identification of the anonymous 911 caller.
Detective Jack Swanson, now working the Minard case, was still in the middle of the investigation of the three men arrested with stolen dynamite three weeks earlier on July 28, 1970 .
Several days after a cancelled federal raid on the headquarters of the Omaha Black Panther affiliate chapter, the Omaha Police Department got a lead on stolen dynamite being sold in the city.
Based on a tip from an adolescent, agents of the Division of Alcohol, Tobacco & Firearms had sought to search the Panther headquarters looking for machine guns and explosives. Omaha was on edge after a series of bombings including one at a police substation in North Omaha and ATF agents suspected the Black Panthers were involved.
The Omaha FBI office, under pressure from Hoover for action against the Panthers, put a stop to the rival agency’s search with a phone call to the Justice Department and initiated their own investigation.
Paul Young had no interest in becoming the object of Hoover’s wrath. FBI agents then began their own canvass of the neighborhood where the Panther office was located in a futile effort to learn about a purported stash of machine guns. Assistant U.S. Attorney William Gallup later resigned his position as a federal prosecutor in Nebraska in protest against FBI interference with the planned ATF raid.
After Larry Minard’s murder, Luther Payne got word out of the jail he could help the investigation. Payne told Omaha officer Arnold Dailey that one of four men--Lonnie Woods, Maurice Reedus, Eddie Bolden, or Thomas Bick--was most likely responsible, implying they were the source of the explosives he had been arrested for. One of the men Payne named, Eddie Bolden, was the former head of the local Black Panthers who had been replaced by Ed Poindexter.
Minard Funeral
Officer Minard was buried on Thursday following one of the largest funerals in the city’s history. The father of five was buried on his 30th birthday, August 20, 1970. The day before Minard’s funeral Hoover had given the order to let the anonymous 911 caller go unidentified.
On Friday, August 21 at 2 a.m. a man arrested at a disturbance call, Anthony Sanders, was in custody and offered information on Minard’s murder. Sanders, on Federal probation, wanted help leaving Omaha in exchange for his information about two white men, Gary and Darrell, who hung out at Rocket Billiards. Sanders told police the pair quizzed him about “militants” in the past. More recently Sanders claimed the two men “are now bragging” of knowledge about two “Germans” from Iowa, “who are doing the bombings.”
Sanders’s Germans were responsible for the Components Concepts Corporation blast and also the “North Assembly,” a police substation bombed on June 11 in North Omaha. Sanders was shown “several hundred photos” out of the “Indmo 55 group” of police mug shots and identified Darrell as Henry Casperi.
Henry Casperi, who had been arrested in Omaha at the bus depot, had an FBI file which documented an arrest in Laguna Beach, California for assault against a police officer.
At 8:45 a.m. a police informant, Tyrone Stearns alias Turner, told police that Luther Payne, who had been arrested in July possessing dynamite, was a Black Panther. The informer also said he was present at a Black Panther meeting on Wednesday after the Components Concept Corporation bombing and the operation was described as a success.
Paul Young, special agent-in-charge, called FBI Headquarters and requested a FBI Laboratory supervisor travel to Omaha “for the purpose of furnishing technical guidance” to local police. Meanwhile, police got a visitor to headquarters at 1:50 p.m. when a taxi-driver named Richard Gibson asked to speak to an officer about the Minard murder.
Gibson lived on Ohio Street three blocks from the bombing and told police he was a former member of the Omaha chapter of the Black Panthers who had a falling out with then-leader Eddie Bolden. A police report says “Gibson stated that he felt that some of the group still has it in for him and may be trying to involve him in the bombing.”
Gibson told police he had just delivered a fare and drove to the sound of the explosion but was stopped at 30th& Ohio by police who had already cordoned off the crime scene. Gibson ended his visit by telling police the Black Panthers had also worked with “Caucasian” members of the Peace and Freedom Party in Lincoln, Nebraska.
Detective Jack Swanson
At 8 p.m. Detective Swanson was busy going over surveillance photos his intelligence unit had taken of NCCF headquarters in July looking for clues. Tracking down the license number of one car containing two white men, Swanson got names, Donald Stirling and Roger Duncan. Duncan was questioned about his coming and going from the Panther office. Duncan said the two were volunteers for United Methodist Ministers investigating reports of police harassment.
Swanson wrote in his report: “DUNCAN further said that he did not think the Panthers were involved….Duncan said that party policy was strictly defensive right now. He indicated that they would need authority from National Headquarters to place a bomb.”
“DUNCAN has said that in his opinion, the person who committed the crime would be one party who feels that he is alienated from society.”
Swanson noted that pinned to the wall were several scorched draft cards. Swansageson reported, “This information was given to Agent HARRIS, FBI.”
Officer Arnold Dailey was also working late and at 10:20 p.m. filed a report about an interview with a Mrs. White and a Mr. Jerks earlier in the evening. Both White and Jerks said they had seen Duane Peak with “a light gray Samsonite suitcase which looked like it was heavy.”
Mrs. White added that Duane did not own a suitcase and had only a few clothes. Dailey’s report said Peak “throws them over his arm whenever he moves from place to place.”
Duane Peak
“The next day he stated that he has to lay low because they (Police) has a warrant and they are looking for him. He was also bragging about bombing the house at 2867 Ohio St.”
Dailey’s report on Peak also said Duane stole a police riot gun, burglarized a gas station and fire bombed a shack behind the gas station. Duane’s night of crime against Erikson filling station was with Russell Peak according to the police report. “Russell PEAK is also the one responsible for shooting a white male on 30th Street, Mr. Jenks and Mrs. White stated.”
Sgt. Robert Pfeffer interviewed Annie Morris at police headquarter. According to Pfeffer’s report of the session Morris said Duane Peak had asked for the phone number of the police station a day or so before the bombing. Morris also told of an exchange between Duane and Donald Peak on Monday night after the explosion.
Pfeffer’s report gives Morris’s account: “Duane PEAK was setting [sic] with her on the couch in the frontroom and DONNIE came to the front window and scared her, DONNIE said that at this time the Police were trying to scare the ones who did it and that DONNIE then asked DUANE, “what’s the matter boy, can’t you get any sleep”? Then, “don [sic] let that bother you.”
At 10:33 p.m. Pfeffer took Morris to the sixth floor Communications Room where the 911 tape was played for her repeatedly. Morris initially said she thought the voice was Duane’s then she switched brothers. “However, after listening to the tape, two and three times, she stated it sounded like Donnie PEAK, disguising his voice, or trying to do so.
A public break in the case came the next day when a warrant for murder was issued on August 22, 1970, against 15 year-old Duane Peak. At 6 p.m.a teenager, Theresa Peak, was brought in for questioning. Theresa told police that shortly after sundown on August 16 her two brothers Donald, Jr. and Duane got into her car and that Duane was carrying a suitcase. After an hour of intense questioning Theresa told of Duane’s confession to her.
The police report states: “Theresa said that on Monday 17 Aug. 70 her brother Peak, Donald Jr. told her that Peak, Duane had put the bomb in the house, also that one day just before the funeral of Minard, Larry her brother Duane Peak was at her home and told her that he had put the bomb in the house that killed the policeman.”
The report continues: “Theresa said that both brothers told her it was Nitro glyerine use [sic] in the bomb. She further stated that Duane Peak told her that he had carried the suitcase from the Panther headquarters.”
While Theresa was being questioned, her sister Delia’s boyfriend, Willie Lee Haynie, was undergoing interrogation. Haynie admitted giving Duane Peak a ride with a suitcase to the alley behind Ohio Street near the bombing site but said he had no knowledge of any bomb.
The police report goes on with Haynie’s story, “when he got up the next morning he did hear PEAK, Donald, negro male, 20 years, and PEAK, Duane, laughing and talking about the bombing and stated that [Minard] had got blowed up and how many they sent to the hospital, both were making jokes about this incident.”
National Committee to Combat Fascism Members
Chairman of the National Committee to Combat Fascism Ed Poindexter was also arrested. The headquarters of the Black Panther affiliate chapter was raided that same day.
Poindexter had been subjected to regular police harassment and talks candidly about the experience: “Part of the COINTELPRO project was to harass party members around the clock seven days a week. Never let up, try to break us or cause us to snap or drop out under the pressure.”
"At no time, not a single day went by that the police didn’t threaten to kill us…I would be careful not to be at the same place every night, to be so predictable that they could pull the same stunt they did on Fred Hampton on me.”
If the two Black Panther leaders were to be convicted they would need to be implicated by Duane Peak and tied to the crime by some type of physical evidence.
On the evening of August 22, Mondo we Langa’s home was raided and dynamite was purportedly found in the basement by detective Jack Swanson, the OPD liaison with the FBI. Mondo was in Kansas City speaking at a rally for Black Panther Pete O’Neal who was facing federal gun charges brought by ATF agent Moore over the transport of a shotgun over state lines.
The search of Mondo’shouse began with a canvass for Duane Peak and grew into a hunt for explosives. The police attempted to explain the search of the dwelling by claiming they had gotten a lead from Peak’s family.
Mondo we Langa denies any dynamite was ever in his home: “Swanson says that when he and the other cops showed up at the house the door was open and the lights were on. I don’t really have a clue yet exactly what happened but apparently what happened is police went through the house but did not have a search warrant, that we know, they did not have a search warrant, what they had was an arrest warrant for Duane Peak. Aside from the fact he was in the party or associated with it, they had no reason to look for Duane Peak at my house. Duane Peak was 15 years old. He wasn’t somebody I hung with.”
“It is interesting to say the least that the police say we found dynamite in the basement next to the furnace. But they took a picture, they took a photograph of my basement. There is not dynamite in the photograph. But they also took a photograph of a box of dynamite in the trunk of a police cruiser. They took a photo of my basement and they claimed there is dynamite there, why not have a photo of dynamite in the basement?”
“There are all kinds of things about the case that are really pretty basic and pretty outrageous that are part of the record that people don’t know about,” says Mondo.
While the search for Duane Peak was underway, the police had older brother Donald in custody and played for him the 911 call that sent Larry Minard to his death. Donald was interrogated in Room D of the Criminal Investigation Bureau on the 4th floor of the police headquarters. Donald told Sergeant P. Foxall that Duane admitted killing Larry Minard. Foxall played the 911 recording for Donald to see if he would identify his brother’s voice. Donald said he thought Duane was lying when he admitted killing a policeman.
In Washington D.C., FBI agent Bradley followed up on the COINTELPRO memo written three days earlier about the killer of Minard. Bradley wanted to make sure the targeted people were charged with the murder and recommended approving Young’s request to send headquarters staff to Nebraska to steer the investigation.
In a heavily redacted COINTELPRO memorandum, not released until years later, Bradley wrote to Conrad: “In referenced memorandum [8/17/70] the Director approved a request to assist the Omaha Police Department in captioned case through the use of [REDACTED].”
More redactions follow, then the memo continues: “The SAC [Special Agent-in-Charge] noted that he had been instructed by the Bureau to suggest steps of possible assistance to the Omaha Police in solving the bombings. He advised technical guidance of the type requested would provide maximum immediate assistance particularly since the [REDACTED].”
The confidential memo was sent to the same distribution list as Bradley’s earlier memorandum. The plan was reviewed by Hoover personally and the memo bears his “OK” and distinctive “H” initial.
The COINTELPRO plan to help Omaha police solve the crime by sending out headquarters staff followed the withholding of a laboratory report on the identity of the 911 caller showing the true purpose of assistance was not aiding a search for truth or to catch Larry Minard’s killer but instead was a counterintelligence operation approved by J. Edgar Hoover to bring down Poindexter and we Langa.
Also signing the memo sealing the plot to direct the course of the case was George Moore. Although not on the copy list, George Moore was the head of the Racial Intelligence division and daily helped manage the COINTELPRO operation.
Both Bradley and Conrad initialed the document. When Hoover gave his blessing to a counter-intelligence proposal his subordinates acted quickly, putting their signatures or initials in place.
Back in Omaha, the round-up of suspects continued through the weekend. On Sunday there was a rally at Kountze Park to raise bail money for those in custody. A group of 200 listened to community activist Ernie Chambers.
Just before noon at police headquarters Russell Peak, cousin of Duane, was brought in to the Room D interrogation room for questioning. Russell told the police that in the previous month Duane told him how to construct a suitcase bomb. Duane did not identify a target or discuss police officers said Russell.
Monday morning at 3:42 a.m., a week after the Omaha bombing, the math-science building at the University of Wisconsin in Madison was bombed, killing a graduate student. Recent Midwest bombings shattered the heartland in Minnesota, Wisconsin, Iowa, and Nebraska putting law enforcement officers and the public on edge.
While the police sweep of the Near North Side continued in Omaha, Raleigh House, the NCCF treasurer, got unusual treatment from Arthur O’Leary in the prosecutor’s office. House was arrested on a conspiracy to commit murder charge but released after one night in jail on a signature bond by O’Leary who refused comment on the reason for House’s release.
Meanwhile, Hoover got around to reviewing the COINTELPRO action being planned against Ed Poindexter that was proposed before Larry Minard’s murder. On August 15, 1970, Paul Young wrote to Hoover proposing to exploit an article in the Omaha World Herald about the local Black Panther chapter. Young wanted to get Poindexter in trouble with the national headquarters for his purported cooperation with “Whitey’s newspaper,” the Omaha World-Herald.
Hoover gave approval to the bogus letter plan but advised: “It is suggested you include several misspellings to make the letter appear more authentic….Take the usual security precautions to insure this letter and mailing cannot be traced to the Bureau.”
Hoover concluded his authorization, “This should be an excellent disruption technique.”
On Friday, August 28, 1970, Duane Peak now in custody and following a visit from his grandfather, Rev. Goodlett Foster, and his father, Donald Peak Sr. gave a statement to Sergeant Foxall at police headquarters. Foxall’s report of the interview was made out at 3:20 p.m.
Peak claimed he had a desk at NCCF headquarters and dropped by Sunday afternoon before the bombing. Peak told Foxall that he found a white envelope addressed to him in green ink. Peak said that inside was a note that said: “DON’T TELL ANYONE ABOUT THE NOTE. KEEP IT QUIET. A TOP SECRET.”
Peak’s secret note gave him instructions to go to Lothrop Drug Store and pick up a suitcase that contained “highly classed confidential papers” which he was directed to deliver to an alley behind a house between Lake and Ohio Streets. Peak claimed the note then instructed him to a phone booth on 24h Street where he was told to burn the note.
Peak said when he got to the phone booth at 2 a.m. the phone rang and a woman’s voice told him to call police and report a woman screaming. Peak said the woman told him to forget he ever saw a suitcase and hung up.
Foxall’s report continues, “DUANE said that he made the call but he used a different tone of voice.”
On September 5, Sgt. Robert Pfeffer went to the Dodge County Jail to interview Duane Peak. Peak’s lawyer, Thomas Carey, had talked with Lt. Perry and said that Duane had information for police. Peak told Pfeffer that Ed Poindexter approached him on August 10 with a “beautiful plan to blow up a pig.”
Peak said that Poindexter met him at Frank Peak Jr.’s house. Frank, a cousin of Duane, was the defense captain of the NCCF. A man named Raleigh House brought Poindexter over to Frank’s house at 9:30 p.m. according to Peak. From there Peak, Poindexter and House drove to Mondo we Langa’s home where Poindexter got out, according to Peak.
Peak then went with Raleigh House to pick up dynamite and a suitcase and returned to Mondo’shouse where the bomb was assembled by Ed Poindexter according to Pfeffer’s report.
Pfeffer wrote that Peak said that Poindexter “told me that he couldn’t plant the bomb, because they had his description and would know that he was the one who did it, so he asked me to do it, and he told me how to do it.”
Duane Peak said he waited several days before following the order allegedly given him by Ed Poindexter. Peak claimed he was given a ride to Mondo’s house by a white woman, Norma Aufrecht, who also gave him a ride with the suitcase bomb after he picked it up.
Norma Aufrecht, a Black Panther supporter, would sometimes give party members rides in her father’s car. When police searched her residence some of Duane Peak’s clothing was found. Aufrecht was arrested during the sweep following the bombing but was released for insufficient evidence.
On October 12, 1970, William Sullivan, made his only public statement on the Omaha Two case.
Sullivan monitored COINTELPRO daily for Hoover and was on the copy list of the COINTELPRO memos involving the Omaha Two. Sullivan’s remarks came up in a rare public speech to a United Press International conference.
Sullivan falsely denied any FBI role in any conspiracy against the Black Panthers. About Minard’s death, Sullivan said to the gathered reporters and correspondents: “On August 12, 1970 [sic] an Omaha, Nebraska police officer was literally blasted to death by an explosive device placed in a suitcase in an abandoned residence. The officer had been summoned by an anonymous telephone complaint that a woman was being beated [sic] there. An individual with Panther associations has been charged with this crime.”
Sullivan went on describing a variety of violent acts for which he blamed the Black Panthers, including the deaths of rival group members that later would be discovered to be COINTELPRO-instigated shootings. Sullivan dismissed the growing body of evidence that there was some sort of coordinated national effort against the Black Panthers that used illegal tactics.
“Panther cries of repression at the hands of a government “conspiracy” receive the sympathy not only of adherents to totalitarian ideologies, but also of those willing to close their eyes to even the violent nature of hoodlum “revolutionary” acts,” said Sullivan.
The next day Paul Young, at the Omaha FBI office, sent a COINTELPRO memo to J. Edgar Hoover following up on the 911 recording of Larry Minard’s fatal caller he had sent to the FBI Laboratory.
Young updated Hoover on the case: “Assistant COP GLENN GATES, Omaha PD, advised that he feels that any uses of this call might be prejudicial to the police murder trial against two accomplices of PEAK and, therefore, has advised that he wishes no use of this tape until after the murder trials of Peak and the two accomplices has been completed.”
The COINTELPRO memo continued, “…no further efforts are being made at this time to secure additional recordings of the original telephone call.”
Meanwhile, in New York, FBI agents located Angela Davis and arrested her for the Marin County jailbreak in California. Davis would remain jailed for months awaiting trial where she was found not guilty while at the same time in Omaha the two Panther leaders sat in jail.
The day after Young’s memo to Hoover about the 911 tape, Murdock Platner was in Washington, D.C. to testify before U.S. House Committee on Internal Security about the Omaha Two case. Platner was under oath and testified to a different source for the dynamite than that alleged by Duane Peak at the preliminary hearing two weeks earlier.
Peak’s story was that Black Panther treasurer Raleigh House, who was never prosecuted, was the supplier of the dynamite that killed Minard. Captain Platner told a different story to the Committee:
“Duane Peak, a [now] 16-year-old boy who was arrested, testified in a preliminary hearing. It is from this preliminary hearing you are bound over to the district court to stand trial. In the preliminary hearing he testified that David Rice [Mondo we Langa] brought a suitcase filled with dynamite to his house or to somebody’s house, I’m not for sure just which place; that they removed all the dynamite from the suitcase except three sticks, made the bomb, the triggering device, and so on, and put it together; and then packed the suitcase with newspapers and that he left with this suitcase.”
Platner continued his testimony: "On July 28, 1970, three young Negroes, one who is an ex-Panther, were arrested with 41 2 ½ inch by 16-inch sticks of dynamite in the car. This is also similar to the dynamite taken in burglary in Des Moines of Quick Supply."
Platner then quit answering questions from the Committee, "Now I am a little hesitant to go into the rest of this because there is a trial yet to be held. I don't know what I should say."
Platner would also travel to Washington to testify before the U.S. Senate Judiciary Committee where he would tell a similar story but with different amounts of dynamite confiscated by police from the three men detective Jack Swanson was investigating from the July arrests.
Neither of Platner’s trips, nor his conflicting dynamite testimony, was ever reported by the Omaha news media or mentioned in the trial of Ed Poindexter and Mondo we Langa.
At the April 1971 murder trial the jury never heard the 911 recording of Minard’s killer. Duane Peak alleged he planted the bomb and made the anonymous phone call. Peak testified he was supplied with the dynamite by Raleigh House and claimed the bomb was constructed at Mondo we Langa’s home under orders of Ed Poindexter.
Norma Aufrecht moved from Omaha soon after her release from jail and was not called to testify at the murder trial about Duane Peak’s clothing found at her residence or Peak’s claim she gave him a ride to Mondo we Langa’s house.
The jury never knew that three men had been arrested several weeks earlier in the city before the bombing with a cache of stolen dynamite in their car.
Nor did the jury know the detective in charge of the seized explosives later allegedly found dynamite in the Minard case. The jury was also not told that Captain Platner testified twice in Washington, D.C.to two different Congressional committees about the dynamite, leaving dynamite unaccounted for by giving a different amount seized in his two versions.
Jack Swanson was the star police witness against the two Panthers at trial with his claim of discovery of dynamite in the basement of Mondo we Langa’s residence. Swanson's claim was supported by fellow detective Robert Pfeffer who testified he first saw the dynamite when Swanson carried it up the stairs from Mondo's basement. Pfeffer has since contradicted his own trial testimony and now claims under oath that he, not Swanson, found the dynamite.
Lieutenant James Perry testified Peak’s sister Delia said the teenager might be found there.
Perry’s testimony was carefully reviewed by U.S. District Judge Warren Urbom in a later appeal by Mondo we Langa. Judge Urbom dismissed the police story: “Lt. Perry’s testimony that Delia Peak told him that Duane Peak, Edward Poindexter and David Rice [Mondo we Langa] were constant companions is in no way corroborated by the remainder of the record before me.”
Judge Urbom concluded the police account of the search warrant was unreliable. “On the basis of the entire record before this court and having heard and seen Lt. Perry testify, it is impossible for me to credit his testimony.”
Jack Swanson’s role in the Minard case was good for his career. On November 26, 1972, he was promoted to lieutenant and was again promoted on August 22, 1975 to Deputy Chief of Police. In 1981 Swanson was named Chief of Police in Omaha.
Raleigh House was never prosecuted for supplying Peak with the dynamite, adding to speculation he was the FBI’s informer inside the Panther group because of his get-out-of-jail free treatment in the police dragnet after the bombing.
Luther Payne, Lamont Mitchell, and Conrad Gray all quietly had their dynamite possession charges dropped a week after the murder trial ended.
Duane Peak made a deal with prosecutors, escaping punishment as an adult and walked free from juvenile detention when he turned 18 years old. Peak is now living on the West Coast under the name Gabriel Peak and refuses all comment on the case. Arthur O’Leary confirmed the deal with Peak in an interview with the Washington Post on January 8, 1978.
COINTELPRO was officially terminated 10 days after the Omaha Two were convicted, following disclosure of secret FBI files after a March 8, 1971 break-in of the Media, Pennsylvania satellite FBI office.
A group of unidentified activists called the Citizens Commission to Investigate the FBI made their way under the cover of darkness with crowbars into the non-alarmed second-floor office and emptied desks and file cabinets, including 1,000 classified documents.
Hoover was furious and ordered chief inspector Mark Felt, Watergate’s “Deep Throat,” to go to Media and get a first hand report. Despite an intense effort for a year with a massive investigation to catch the burglars, the crime was never solved. Meanwhile, the activists were busy leaking the documents to media and government officials.
By the end of March, COINTELPRO’s dirty tricks were coming to light despite Attorney General John Mitchell’s efforts to muzzle the national news media. Hoover kept the lid on his counterintelligence operation during the Omaha Two trial before cancelling the clandestine operation late in April. The jury never knew of COINTELPRO’s existence or that Ed Poindexter and Mondo we Langa were personal targets of J. Edgar Hoover.
J. Edgar Hoover died on May 2, 1972 without ever making a public statement about his role in letting one of Larry Minard’s killers escape justice.
Also unknown to the jurors, Arthur O’Leary, the chief courtroom prosecutor who stood before them, did not care about the truth. The transcript from an interrogation of Peak by O’Leary soon after Peak’s arrest reveals the prosecutor said, “As a practical matter, it doesn’t make any difference what the truth is concerning you at all.”
O’ Leary continued, “You realize now that it doesn’t make any difference whether you did or didn’t. That doesn’t really make one bit of difference at all at this stage of the game but I want to make sure concerning somebody else that might have been involved. Because you see what it amounts to, Duane, is that eventually you are going to have to testify about everything you said here and it isn’t going to make one bit of difference whether or not you leave out one fact or not, as far as you are concerned. Do you understand what I am trying to tell you?”
Peak got O’Leary’s message and after a half-dozen different versions of his story finally implicated the two Panther leaders. In the solitude of his jail cell, the young killer would express remorse in a letter to a relative, intercepted by his jailers but kept from the defense attorneys at trial. The letter would later emerge and become part of the appellate court record.
Peak wrote: “The Lord knows I tried but something happened which forced me to realize that I had no alternative but to say what I said. No matter what anyone says from now on I refuse to call myself a man, or anything close to a man because I did what I did. Even though there was no other way, because they already had enough evidence to convict those other two bloods.”
Peak continued his lament: “I not only turned against those two bloods but I turned against myself and my own people. I could have denied everything and all three of us would have gone up to the chair. And then again if I denied everything one of those other bloods would have gave them a story and sent me and the other dude up.”
At Dune Peak’s preliminary hearing in September he refused to implicate Ed Poindexter or Mondo we Langa. The prosecution called for an early recess to the morning hearing. When the session reconvened after the lunch hour Peak returned to the witness stand wearing sunglasses and shaking nervously. When defense counsel David Herzog had Peak remove his sunglasses his eyes were red and puffy. The courtroom testimony follows:
Defense Attorney: What happened to make you shake and bring your nervous condition about now?
Duane Peak: I don’t know.
Defense Attorney: You had a conversation between the time you were placed on the witness stand this morning and the present time now, isn’t that correct?
Duane Peak: Yes.
Defense Attorney: And there were the same things that the police officers told you about what would happen to you, like sitting in the electric chair, isn’t that correct?
Duane Peak: I didn’t have a chance.
Defense Attorney: You didn’t have a chance did you?
Duane Peak: No.
Defense Attorney: You are doing what they want you to do, aren’t you?
Duane Peak: Yes.
In California on June 5, 1972, Angela Davis was found not guilty of involvement in the Marin County jailbreak but her experience in jail gave her a connection with Black Panthers arrested under COINTELPRO, in particular the Omaha Two, who she says should be released.
Geronimo Pratt did not fare as well. On July 28, 1972, Pratt was convicted in Los Angeles of the December 18, 1968 shooting of Caroline Olsen during a robbery. Pratt was fingered by a FBI informant, Julius Carl Butler. Pratt’s alibi was he was in Oakland attending a Black Panther meeting which was corroborated by Kathleen Cleaver. Pratt sought FBI wiretap records which also could confirm his innocence of the robbery-murder by establishing his presence in Oakland. Pratt was falsely told by the FBI that wiretap transcripts were “lost or destroyed” and during the trial it was denied that he was a COINTELPRO target.
Geronimo Pratt was finally released after 27 years in prison, eight years of it in solitary confinement, when his conviction was vacated on June 10, 1997 over FBI and prosecutorial misconduct withholding relevant information about the FBI informant and targeting of Pratt. Pratt later won $4.5 million dollar lawsuit against the Los Angeles Police Department and FBI for false imprisonment.
Ivan Willard Conrad resigned from the FBI on July 12, 1973. In December 1975, Conrad was questioned over missing FBI laboratory equipment and initially denied any knowledge. Conrad then changed his story and returned $20,000 worth of equipment. The disgraced former lab director escaped prosecution because of the statute of limitations and paid the FBI $1,500 for use of the equipment.
On July 5, 1974, U.S. District Judge Warren Urbom ordered a new trial in the Minard case, tossing out the dynamite evidence allegedly found by Swanson in Mondo we Langa’s home. The state appealed.
The Eighth Circuit U. S. Court of Appeals had a three-judge panel review the case and they unanimously upheld Judge Urbom’s ruling. The federal appellate court wrote: “Testimony before Judge Urbom suggests that the purpose of searching for explosives was an afterthought conceived after the police arrived at the house, rather than an urgent emergency, and that they decided to apply for a warrant to search for explosives in the petitioner’s house only because they had not discovered dynamite in any of the other locations they had searched earlier in the day.”
The court continued: “We consider it necessary to point out that the record discloses a widespread search for the suspects Peak and Poindexter and which evinced at least a negligent disregard by the Omaha police for the constitutional rights of not only petitioner but possibly other citizens as well.”
With four federal judges now calling for a new trial, the state appealed to the U.S. Supreme Court. The appeal arrived at the court as Warren Burger, the chief justice appointed by Richard Nixon before the President resigned in disgrace over Watergate. Burger was busy seeking to overturn earlier decisions of his predecessor, Earl Warren. Mondo’s case was consolidated with another murder appeal, Stone v. Powell.
However, judicial scrutiny of the facts of the case was over, the two political prisoners of J. Edgar Hoover next had their case examined by the nation’s highest court through a political lens. Time magazine called the case “important” and described the jockeying of the justices in a campaign over rights of criminal defendants. Authors Bob Woodward and Scott Armstrong discuss Stone v. Powell in their book, The Brethren, “To Burger, these seemed perfect cases: two murderers were trying to overturn their convictions by raising technical Fourth Amendment claims.”
Woodward and Armstrong continued, “Under the Constitution, any state prisoner has a right to petition the federal courts for a writ of habeas corpus, which required the state to show that the imprisonment did not violate the federal Constitution.”
The authors wrote: “Burger had long wanted to cut off habeas petitions on Fourth Amendment claims. He believed they were almost always frivolous, and they clogged the federal courts. To preclude such petitions – and to overrule an important Warren Court precedent – would be a major victory.”
The Supreme Court refused to hear the merits of the case, creating new restrictive precedent for prisoner appeals and returned the matter to Nebraska courts where the outcome was already foreshadowedby media attention hostile to the Black Panthers. No new trial was ever granted despite requests from both convicted men and the revelation of manipulation of evidence by J. Edgar Hoover.
The U.S. Senate appointed a committee to investigate the intelligence agencies of the United States. The sub-committee of the Judiciary Committee was chaired by Frank Church [D-Idaho] which became known as the Church Committee.
The Church Committee conducted an investigation and issued a damning report on the practices of the nation’s intelligence agencies. COINTELPRO got particular attention and illegal actions of the FBI were documented.
The Church Committee concluded in part: “Legal issues were often overlooked by many of the intelligence officers who directed these operations. Some held a pragmatic view of intelligence activities that did not regularly attach sufficient significance to questions of legality. The question raised was usually not whether a particular program was legal or ethical, but whether it worked.”
The full story of COINTELPRO will never be known. Neither Congress nor the courts seized the COINTELPRO files and they were left in the custody of the FBI which began destruction of the incriminating documents after 20 years with many never seeing the light of day.
Over the years Angela Davis continues to make trips to Nebraska to visit the Omaha Two. Actor Danny Glover has also made the trip to Lincoln and has called for the release of the two former Panther leaders. A citizen group, Nebraskans for Justice, formed to support a legal battle for a new trial.
Lincoln attorney Robert Bartle, head of the Nebraska Bar Association, has worked for a half-decade to obtain a new trial untainted by COINTELPRO manipulation. Omaha attorney Tim Ashford, who grew up on Ohio Street a few blocks from the murder scene, has joined the effort to secure a fair trial. Bartle represents Ed Poindexter and Ashford represents Mondo we Langa.
Robert Bartle says: “The whole COINTELPRO operation under the late J. Edgar Hoover’s administration was unknown to the folks at the time. The whole COINTELPRO focus on Ed and Mondo…and the efforts to discredit them in the Omaha community were a separate conspiratorial operation that was not known to either Ed or Mondo.”
Bartle continues: “The fact that the tape was withheld from the defense at the time and the fact that the FBI under the auspices of the COINTELPRO program, first offering to do a voice analysis and then retreated from that position because it might prejudice the prosecution we believe is critical information…that would likely have led to an acquittal in this case.”
Tim Ashford is sharp with his criticism of COINTELPRO, “They withheld, the FBI, the mighty FBI, withheld a memo regarding the 911 tape…these are political prisoners."
The recording of the 911 call that lured Larry Minard to his death was destroyed by Lt. James Perry several years after the trial without the jury that convicted the Panther leaders ever hearing the voice of the deadly caller.
Years after the murder trial, a copy of the 911 call was found in the personal effects of a deceased police dispatcher who had secretly made a copy of the recording.
In 2006 and 2007 the tape was subjected to sophisticated scientific analysis by audio forensics expert Tom Owen. Owen is an internationally recognized analyst and he listened to exemplars of the 911 call and a contemporary recording of Duane Peak repeating the same words.
Owen, who frequently works for the prosecution and conducts professional seminars for police on voice analysis, concluded the voice on the 911 call was not that of 15 year-old Duane Peak. The Omaha World-Herald described the voice as “deep and drawling.”
The Nebraska State Penitentiary
Owen testified in May 2007 that the voices did not match with a detailed phrase-by-phrase courtroom explanation of the discrepancies. However, Judge Russell Bowie denied a new trial in a decision that was upheld by the Nebraska Supreme Court. Despite the new forensic evidence about the identity of the 911 caller, federal courts have declined review because both prisoners have exhausted their appeal rights during their lengthy incarceration.
The anonymous 911 caller is still unidentified and at large with Donald Peak considered a prime suspect by a number of people familiar with the case.
At the time of trial, Nebraska law had the jury determine both guilt or innocence and the sentence. Prosecutors sought the death penalty for the two Panther leaders but the 11 white and one black juror opted for life sentences instead. Some observers attributed the sentence to the lone black juror while others felt the outcome reflected doubt in the minds of the jurors. The impassioned closing arguments by Public Defender Frank Morrison have also been credited for the jury’s refusal to execute.
Ed Poindexter
Morrison, a former three-term governor of Nebraska, later described the verdict as the biggest disappointment of his legal career: “As a citizen, as a former prosecutor, and governor of this state, I abhor, detest and condemn the cowardly, cruel, and unjustified murder of officer Minard. My heart aches for his family. The guilty parties should pay the penalty. The self-confessed murderer was turned loose after a slap on the wrist.”
“I now believe and always have believed that the true role of law enforcement is truth. Real justice can only be built on truth. I hope the Congress and other policy makers will reestablish this policy. I feel both I and the system failed Ed Poindexter.”
Ed Poindexter and Mondo we Langa remain imprisoned at the maximum-security Nebraska State Penitentiary serving life sentences, while they continue to deny any role in the fatal bombing.
Mondo we Langa explains his situation: “We didn’t know about COINTELPRO…but what we did know in the party is that in ’69 Fred Hampton and Mark Clark had been murdered by the police in Chicago. We knew that all over the country Panthers were being targeted by the police, the FBI and so forth. Even though we didn’t know about the existence of COINTELPRO we did know that some things were going on that shouldn’t have been going on in a supposed democracy. It is about paranoia. And when you think about it the U.S. government had a right to be paranoid. They were doing wrong to people every day.”
Mondo we Langa June 2008
“But there were a couple of agendas working hand in hand. One, you had the Omaha Police Department. Two, you had the FBI. Now the FBI’s agenda was probably more related to the destruction of the Black Panther Party solely. The Omaha Police had that as part of their agenda as well as finding the killer or killers of Minard. You can believe those cops wanted somebody. But when you put the two agendas together, that is where we ended up. Somebody had to pay for Minard’s killing, so they got that taken care of. At the same time they were able to essentially kill the head so the body would die.”
Ed Poindexter says simply, “I have been unjustly accused of a crime I had nothing to do with.”
Author’s note: Elmer Geronimo Pratt changed his name to Geronimo Ji Jaga but Pratt has been used in the article to avoid reader confusion. David L. Rice changed his name while in prison to Wopashitwe Eyen Mondo we Langa which has been shortened to Mondo we Langa for reader convenience. Mondo’s new name combines four African languages and means “natural man”.
The murders of five prostitutes by the Suffolk Strangler in 2006 set off one of the largest manhunts in British history. DNA evidence led to the arrest and conviction of a man who admitted he had sex with four of the five dead women, but was he the actual serial killer?
During November and December of 2006, five prostitutes were murdered one at a time in Ipswich, England. Although each was asphyxiated and not strangled, the British media dubbed the serial killer “the Suffolk Strangler.”
Forensic evidence suggested that all five victims were attacked from behind and that the assailant put his arm across the victims’ throats to render them unconscious. The first two bodies were found fully or partially clothed in a nearby river in Ipswich. The last three victims were left naked in woodlands near the same area; no attempt had been made to hide or bury the bodies. Each victim was arranged in the form of a crucifix with her hair extended outwards in the form of a halo. Jewelry and other trinkets were taken from the victims but have never been recovered.
The victims were 19-year-old Tania Nicol, 25-year-old Gemma Adams, 24-year-old Anneli Alderton, 29-year-old Annette Nichols, and 24-year-old Paula Clennell. Clennell, the fifth and final victim, had predicted her own murder during a television interview about the serial killer. She had been friends with the other victims as they worked the same streets touting for passing trade.
At the time of the murders, Suffolk police asked the Forensic Science Service to assist in one of the largest murder manhunts in British history. From the time Tania Nicol was reported missing on November 1, 2006, the police investigation involved 600 officers from nearly every law enforcement force in Great Britain. The inquiry team received more than 12,000 calls from members of the public and almost 11,000 hours of closed-circuit TV footage were scrutinized.
More than 100 scientists spent more than 6,000 hours analyzing “swabs” for body fluids and DNA, along with thousands of fibers from the victims themselves, including the locations where each murdered woman was found. Initially, the surface of each of the victim’s bodies was swabbed to recover foreign DNA. Over 100 swabs were taken and processed using the SGM Plus profiling method.
A DNA Match
Tania Nicol
A DNA match led police to a man named Steve Wright, who at the time of the murders was working as barman in Ipswich's red light district and as a forklift truck driver in the Ipswich Docklands. His DNA profile was held on a police computer database after a previous conviction for theft; in 2002 he was convicted of stealing £80 from a former employer. Investigators said Wright’s DNA was recovered from Anneli Alderton, Paula Clennell and Annette Nichols.
Wright was arrested at his home at 5 a.m. on December 19, 2006 and taken in for questioning. At the time, the police told the assembled media: “This is a significant arrest and the team is feeling quite buoyant.” The police said that they were no longer appealing for information in relation to the murders and that the arrest was a major breakthrough in the case. They were very certain they had the culprit – to the exclusion of all other possible suspects.
When questioned by police, Wright admitted frequently using prostitutes in Ipswich's red light district and also admitted having sex with four of the five victims but he maintained “this did not make him a murderer.”
The police also told the media that the basis of the arrest was closed-circuit TV footage which they thought showed Wright's car picking up the first victim, Tania Nicol. Wright picked her up on October 30, 2006 and her body was not found until December 8. Wright said it was “quite possible” he was the driver of the car seen in CCTV images that showed Nicol getting into a vehicle on the night of her killing but he also said that after he picked her up he changed his mind about having sex and dropped her back in Ipswich's red light district.
Steve Wright’s Background
Gemma Adams
Steve Wright had a troubled childhood and adolescence. His mother walked out on the family when he was 8 years old and he did not see her again for 25 years. He and his siblings lived with their father, who remarried and had a son and daughter with his second wife. At age 16, Wright left school with poor academic results and joined the Merchant Navy where he became a chef. While in the navy, he began to frequent prostitutes and continued to do so throughout his adult life. When he left the navy, he worked as a lorry driver, a steward on the QE2 and as a bar manager in various locations and at one point, he lived in Thailand for a few months.
He was married and divorced twice and fathered two children. His second marriage lasted only a year and he may have had a third wife in Thailand though he has always denied this.
DNA Matches Lead to Conviction
Anneli Alderton
After his arrest, initial examination of over 500 items recovered from Wright’s home and car confirmed the presence of body fluids. Scientists extracted the DNA from these fluids – using SGM Plus methods and obtained profiles matching Paula Clennell, Anneli Alderton and Annette Nichols.
Scientists also recovered fibers from the bodies of Anneli Alderton, Paula Clennell and Annette Nichols using adhesive tape. These were then compared against items recovered from Steve Wright’s home and car. There were other incriminating items uncovered such as fibers matching the carpet of Steve Wright’s car found in Tania Nicol's hair and fibers from a pair of navy blue track suit bottoms recovered from Wright’s home which were found to be “indistinguishable” from those recovered from four of the victims.
During a six week trial at Ipswich crown court, the prosecution used CCTV footage and all the forensic evidence linking Wright to the murders – links so strong that prosecution experts said the odds of being mistaken were one in a billion. In the end, jurors took only eight hours to convict Wright unanimously on all counts. In summing up, the trial judge, Mr. Justice Gross, said it was an “extremely disturbing case.”
Prosecutor Peter Wright called on the judge to impose a “whole life term.” He said the criteria for passing such a sentence were met because there was “a substantial degree of premeditation or planning.”
Wright was sentenced to life imprisonment with little chance of parole. Justice Gros called him the “epitome of evil.”
Is Steve Wright Innocent?
Annette Nichols
Wright, who adamantly professed his innocence from the time of his arrest, was shocked at his conviction. After his conviction, he said the verdict was like a “knife in the heart” as he had not expected to be found guilty. In a letter dated August of 2008 from Long Martin Prison, Worcestershire to the East Anglia Daily Times, he wrote that he was not the “real killer.” He also said that he was “numb with shock” after being found guilty of the murders and that there “was not one shred of evidence” against him.
“People should believe I am innocent because I have gone through my whole life trying to be as fair and considerate to other people as I possibly could. I don't have a violent bone in my body and to take a life I would have thought would be the ultimate form of aggression…All their evidence proved was that I had contact with the girls but not one shred of evidence showed that I killed them,” he wrote.
Wright is not alone in maintaining his innocence. To crime investigator and writer David Dixon, the forensic evidence linking Wright to the murders does not prove that Steve Wright was the killer. “The forensic experts testified that most fiber deposits would be lost in the wind and rain after a few hours of exposure to the elements, yet a full profile of Wright's DNA was found on three murder victims despite the bodies being exposed to wind and rain for several days, and even though Wright used condoms during sex with the women.”
To Dixson, all the scientific evidence only proves Wright had contact with the victims and that he had sex with four of the five murdered prostitutes – which Wright readily admitted from the outset.
Dixon says: “This CCTV footage, presented at the trial, alleged to show Tania Nicol being picked up by Wright's Ford Mondeo, but the footage was taken at night, and the car might not have been a Ford Mondeo, and if it was, it might not have been the killer's car, or Steven Wright's, and the girl getting into it may not have been Tania Nicol either.”
“Another very important point is that Paula Clennell (the final victim) reported to the police that she had seen Tania Nicol some two hours after this time, talking to a man in a silver car in the red-light district.”
Paula Clennell
Clennell therefore died as a potential material witness for Wright's defense, Dixon says. And another witness also saw Nicol talking to two men in a “posh” car after the CCTV sighting undermines this CCTV evidence completely.
Dixon believes a more obvious candidate for a suspect car is a blue BMW with polished alloy wheel hubs that was seen by several witnesses. Anneli Alderton was last seen alive getting into a dark blue BMW. Gemma Adams was last seen outside a BMW garage, according to Dixon. But this evidence never received an airing in court.
“Annette Nicholls was seen getting into a blue BMW with polished alloy wheel hubs a week before she is thought to have vanished. Tania Nicol was last seen at the driver's window talking and giggling with two men sitting in a “posh” blue car,” Dixon says.
“Another witness, a doorman at an Ipswich massage parlor, saw a driver in a blue BMW with polished alloy wheel hubs behaving very strangely in the car park in early December. The driver repeatedly reversed his car back and forth outside the door, then moved further up into the car park and did the same again, revving up his engine and stopping it repeatedly. He then drove off very fast.”
If we add up all the elements, Dixon says, what we get is “last seen alive,” “seen getting into,” “last seen outside a BMW garage,” “acting suspiciously outside a sex-related venue,” “last seen talking to two men in a posh car” – all of which must guarantee suspicion of a blue BMW.
Dixon believes Wright's defense did not make enough of this during the trial.
Wright also admitted having sex with Adams in his car at around the time she disappeared, and said that at later times he took the other women – Alderton, Clennell and Nicholls - back to his home for sex while his partner was at work. He would take them to his bedroom but would not use the bed in case his partner was able to smell sex on the bedclothes.
Instead, he had sex with them on two jackets on the floor. The court heard bloodstains from Clennell and Nicholls were found on one of the jackets.
Crown Prosecution advocate Michael Crimp said Wright was the “common denominator” linking all five murdered women. He concluded that Wright was the last person to see them alive and the scientific evidence proved he was responsible for their deaths. He said Wright had failed to give a satisfactory explanation as to why blood from two of the victims was on his jacket. This was one of the main factors in Wright's conviction.
Indeed there was no attempt by Wright's defense to investigate the origin of the blood stains. Could they have been menstrual blood? All the murdered prostitutes were drug addicts. Could this blood have been the result of lack of personal hygiene after injecting heroin? Or could the blood have resulted from rough sex with other customers earlier in the night? None of these possibilities were explored by Wright's defense in court.
According to Dixon, the prosecution also failed to explain why no jewelry and clothing from the victims had ever been found – surely if “trophies” had been kept by the murderer, they would have been uncovered in Wright's home or car.
Dixon says: “Wright made admissions that he need not have made, such as his awareness of some of the areas that the bodies were disposed in, where a dishonest denier would always deny if he could. He has had a long history of involvement with prostitutes dating back a quarter of a century with no sign of a psychopathic disposition in his history.”
Dixon also has a problem with the modus operandi of the actual murderer.
“The first two victims disappeared at fortnightly intervals and were found weeks later in a nearby river, in circumstances designed to eliminate the risk of forensic and DNA evidence. The last three were all killed in a single week, and the bodies were laid out on dry land for a quick discovery, plastered in DNA and forensic evidence that implicated the hapless defendant Steven Wright.”
Dixon says the murders can be described as “serial cascade murders” because of the change in timing between the first two murders and the last three. He believes there is also a corresponding switch between the two sets of murders, with the bodies of the first two being found in the east of Ipswich, and the bodies of the last three being found to the west of Ipswich.
Dixon concludes with the question: “Why would a serial killer accelerate the pace of his series so dramatically when the police surveillance of the small district from which he took his victims was at its height?” He may have a valid point.
Dixon is not alone in claiming the wrong man may have been convicted of the Ipswich murders.
Noel O'Gara, owner/editor of Court Publications in the Republic of Ireland has conducted his own investigation into the Ipswich murders, and last year, published an eBook about the case called The Real Suffolk Strangler. He believes the actual murderer is still on the loose.
O'Gara agrees with Dixon on a number of issues. He says: “The evidence that Steve Wright's DNA was found on the victims did not prove that he was a killer. What it did prove was that he had sexual relations with them as he admitted.”
He also agrees with Dixon that the blue car is a major “loose end” in the case, and like Dixon, he believes the existence of this car was not properly investigated by the .Ipswich police.
In his book, O'Gara suggests that a former police officer who worked as a pimp for all the murdered prostitutes was the real killer. He also claims that “the real killer” was the driver of the mysterious blue car seen in the CCTV footage shown in court.
O'Gara's chief suspect, Tom Stephens, was indeed arrested by Ipswich police before Steve Wright and was also named in one of the UK's Sunday newspapers as the potential culprit but O'Gara claims the police “lost all interest” in the ex-cop turned pimp once they arrested Steve Wright. He says Wright was a much “better fit” for the police who then stopped following leads on other suspects.
Though O'Gara spent several years gathering his own evidence in this case, he was unable to interview his chief suspect who (locals say) disappeared from the Ipswich area shortly after Wright's conviction. O'Gara says: “I went to the central police station in Ipswich to discuss my evidence but received a very hostile reception there and a request to meet the chief police officer was dismissed out of hand.”
Appeals
In March, 2008, Wright revealed he would be lodging an appeal against his conviction, as well as the trial judge's recommendation that his life sentence should mean “a whole life.” He has also claimed that the trial should never have been held in Ipswich, and that the evidence against him was not sufficient proof of his guilt. In a letter to the court of appeal, he stated: “All five women were stripped naked of clothing/jewelry/phones/bags and no evidence was found in my house or car.”
In July 2008, Wright renewed his application to appeal which was to be considered by three judges but in February 2009, he dropped this bid without explanation. British media have speculated that this decision was made because of lack of money. Wright’s family has said they hope to convince the Criminal Cases Review Commission to take on the case but they have had no success with this plan to date.
O'Gara cannot explain why Steve Wright has dropped the appeal against his conviction.
“He probably feels the cards are stacked against him. Ipswich police have repeatedly said they will not be reopening the investigation as they are satisfied they have caught the real killer.
If Steve Wright is indeed innocent, then the real killer is still on the loose.
A distraught Jean Harris paid one last visit to her estranged lover, Dr. Herman Tarnower, intending to take her own life but ended up shooting him when the famed “Diet Doc” tried to wrest the handgun from her. What should have been ruled an accidental death or, at most, involuntary manslaughter, led instead to Harris’s wrongful conviction of murder.
On March 10, 1980, the bestselling Complete Scarsdale Medical Diet by Dr. Herman Tarnower received a publicity boost. Tarnower could not enjoy the fruits of it since it was his killing. Called “The Headmistress and the Diet Doc,” the case grabbed international headlines because of the social prominence of Tarnower’s slayer, Jean Harris, the 56-year-old headmistress of the exclusive Madeira School, as well as that of the victim.
In addition, as Diana Trilling observes in Mrs. Harris, “To many women . . . it had only to be known that Tarnower had replaced his mistress of 14 years with a woman 20 years her junior and more than 30 years younger than himself for Jean Harris to be regarded as embattled female spirit.” Trilling continues, “Whoever had known sexual jealousy, that most destructive of emotions – and this would be so for men no less than for women – had known madness” and could sympathize with Jean Harris.
Prominent feminist Betty Friedan saw no feminist implications in the case and derided Harris as a “pathetic masochist” for sticking with Dr. Tarnower after their relationship soured.
As most facts emerged about the case, it was learned that Jean Harris had for years suffered a gnawing sense of being “inadequate” and that she believed she could no longer be “useful” as a human being. Long divorced and with her sons grown, she was terrified of a jobless old age. Her romance with Tarnower had led to her suffering for years under a campaign of extraordinary harassment. By the night of March 10, 1980, she felt that there was nothing solid in her life as both personally and professionally she was being shoved aside. There was overwhelming evidence that she wanted to end her own life.
The Boy from Brooklyn and the Lady from Cleveland
The man who would author a best-selling diet book but become even more famous in death was born Herman Tarnower in Brooklyn in 1910, into a Jewish immigrant family. He finished his premedical training in two years instead of the usual four. In 1936, he opened a Scarsdale, New York office.
A lifelong bachelor, he hired husband and wife Henri and Suzanne Van der Vreken in 1964 to run his house. In the spring of 1966, Tarnower was at a dinner party when he found himself smitten with divorcée Jean Harris, mother of two teenagers. Days later, Harris was bedridden because back trouble flared. Tarnower surprised her with a get-well present, the book Masada, about finds at the ancient Israelite fortress where, in A.D. 73, Jewish men, women, and children committed suicide rather than accept defeat by Rome. “It’s time you knew more about the Jews,” the card said.
Tarnower showered Harris with cards, presents, and calls. The woman who inspired his attention was born Jean Struven in Cleveland, Ohio in 1923, the second of the three daughters of Albert and Mildred Struven. Albert Struven was a civil engineer and vice-president of the Arthur G. McKee, Inc., construction firm. He had a terrible temper, exploding into rage over such problems as a broken light bulb or stalled car. Jean admired her father for his brilliance but feared his tirades. Mildred sometimes called Jean “Miss Infallible” for her self-righteousness.
In high school, Jean won a prize for her essay, “The Man I Took For Granted.” It refers to Life With Father by Clarence Day when she writes, “Oh, Mr. Day, had I your talent with which to tell the story of an equally deserving father! I have not the eloquence to bring it forth. Or perhaps this realization is not entirely an appreciation of father, but a step toward appreciating men in general. It is possible that some day my subject will be, not ‘The Man I Took For Granted,’ but ‘The Man Who Took Me For Granted.’”
When they married, Jean was 23 and Jim Harris, 27. Jean later recalled thinking quiet Jim a nice contrast to blustering Dad.
David Harris was born in 1950 and Jimmie in 1952. In 1964, Jean, feeling stifled in her passionless marriage, divorced Jim.
Jean moved from school teaching to school administration, getting a job as director of the Middle School at Springside, a private school in a Philadelphia suburb. She was working at Springside when she met Tarnower at a dinner party given by Jean’s close friend Marge Jacobson. Jackson described the attraction of Harris and Tarnower as “Instant take!”
Within months of meeting Harris, Tarnower gave her a diamond ring and proposed marriage. She enthusiastically accepted. However, the wedding was delayed – by Harris. She explained to a friend, “I cannot marry Hy for a year. I cannot take those children out of school again.”
As that year passed so did Tarnower’s interest in marriage, something Harris would discover when she pressed him for a new wedding date. In a phone call Harris told Tarnower, “School is going to start, and I have to know where I am to start, and I have to know where I am going to be living, and where the children are going to be in school.” Tarnower replied, “Jean, I can’t go through with it. I’m afraid of it. I can’t go through with it and I’m sorry.” She mailed the ring back.
Harris and Tarnower continued dating despite Harris’s feeling of discomfort in a relationship that could not lead to marriage. Her strongly held and old-fashioned morality inevitably gnawed at her even as she gave in to her love for Tarnower.
Springside’s headmistress retired in 1970 and Harris hoped she would be the replacement. She was not. Harris then learned the Thomas School in Rowayton, Connecticut was searching for a headmistress. She applied and was hired. Rowayton is about a half hour’s drive from Tarnower’s Purchase, New York home.
On April 26, 1973, Harris celebrated her 50th birthday with sons David and Jimmie. Tarnower was not there. He had long ceased telling Harris he loved her. Instead, as Shana Alexander writes in her book, Very Much A Lady, he repeatedly told Harris, “I don’t love anyone and I don’t need anyone.” He seemed oddly oblivious to the pain this caused her since she was adamant in acknowledging that she loved him deeply. Then again, perhaps he was aware of it and just did not care.
Nasty Phone Calls
At about this time, Lynne Tryforos, a separated mother of two small daughters, became Tarnower’s secretary/receptionist. Although he was 30 years older than Tryforos, Tarnower soon began an affair with her.
In 1974, Harris and others worked out a plan in which the Thomas School merged with another school, a move Harris believed necessary to solve Thomas’s financial troubles.
In 1975, Harris began receiving anonymous phone calls at her home. The caller would graphically describe Tarnower having sex with another woman, jeer at Harris that she should take sex lessons, called her “old and pathetic” and suggested she “roll over and die.”
During this same time period, Harris often received a message at work that she should call a number. She called the number and found she had called Tryforos. Tryforos would demand Harris quit harassing her, changing her unlisted phone number several times. Each time it changed, it was sent to Harris. Harris consulted with a private detective and with two phone company employees in an unsuccessful effort to stop both the anonymous calls to her house and the calls to her work leaving messages to call a certain number that was inevitably the unlisted phone number of Lynne Tryforos. Unable to track down the source of these calls, Harris felt besieged by them. Her sleep was frequently disturbed, leaving her fatigued the next day, and she was made terribly anxious and self-conscious.
Shortly after making the deal that merged Thomas with another school, Harris was hired by the Allied Maintenance Corporation in New York City to write bids for industrial cleaning contracts. Although she now lived over an hour’s drive away from Tarnower, she continued to visit him on some weekends. She was at his home sunbathing in July 1976 when Tryforos and daughters, Electra and Laura, showed up. The children jumped into the pool while their mother started painting garden furniture.
Harris asked, “Does it not seem bizarre to you, Lynne, that you are here painting his furniture while I am here?”
Tryforos stared and said nothing. Harris said, “Lynne, why in hell are you here?”
“I’m here because I’m allowed to be,” she answered.
“Not while I’m here, Lynne,” Harris said.
Tryforos and daughters left.
Tarnower was negligent in keeping evidence of a visit from one woman away from the other. When Harris visited Tarnower, items belonging to Tryforos often confronted Harris. Despite Tarnower’s indifference to her pain, as well as his repeated insistence that he loved no one, Harris could not bring herself to end the relationship.
That same July, Harris learned that the Madeira School in McLean, Virginia sought a headmistress. On December 15, 1976, Harris, then 53, was appointed Madeira School headmistress. She moved into an on-campus house in Virginia in 1977. She continued to see Tarnower even though it meant a drive of about six hours.
At Madeira, the new headmistress quickly became known as “Integrity Jean” because in her lectures on morals and ethics she often mentioned the word “integrity.”
The Making of a Best-Seller
Since overweight can cause heart problems, Tarnower had for years been giving patients diet advice mimeographed on a single page. That page advised eating a high-protein, low-carbohydrate, low-fat, low-sugar diet, and teetotalling.
In the late 1970s, Bantam Books President Oscar Dystel suggested Tarnower write a book based on his sheet. He suggested Samm Sinclair Baker, a practiced self-help book writer, as co-author.
Tarnower and Baker, together with the Van der Vrekens, Harris, and Tryforos, expanded the one page into a book. Alexander writes, “Tarnower talked, Samm took notes, wrote them up, and returned them to the doctor for revisions. Suzanne Van der Vreken created and tested new recipes. Jean Harris read sections of the manuscript, often re-writing parts in her own hand. Lynne Tryforos sometimes took manuscripts in Jean’s handwriting and corrected and clarified portions for the typist. Recipes appeared with names like Mustard Sauce Henri, Borscht Suzanne, and Spinach Delight à la Lynne.
When published in 1978, The Complete Scarsdale Medical Diet by Dr. Herman Tarnower and Samm Sinclair Baker shot to the top of the bestseller lists. At the beginning of the book, Dr. Tarnower explains what he sees as the reason for the popularity of his diet in two words that he italicizes: “It works.”
Dieters were advised to go on the Scarsdale Medical Diet (SMD) for a period of 14 days. They should be on it no less than that for best weight-loss results and no more than that to maintain maximum health. After the two weeks of SMD, they were advised to switch to the less restrictive Keep-Trim Diet (KTD). The book states, “The average person’s food intake contains approximately 10-15 percent protein, variations of between 40-45 percent fat and 40-50 percent carbohydrates.” By contrast, the SMD “averages 1,000 calories or less per day and averages 43 percent protein, 22.5 percent fat, and 34.5 percent carbohydrates.”
When the book appeared, Baker was upset over the first sentence on the acknowledgments page: “We are grateful to Jean Harris for her splendid assistance in the research and writing of this book.” Baker thought her contributions did not merit such prominence and called Tarnower to object. Alexander writes that Tarnower stood firm, “Samm, please leave it just as it is,” but then added gently, “I like to make people feel good and I want to make her feel good.”
In October 1978, Harris bought a handgun, telling the store clerk it was for “self-protection.” Later, she explained, “I felt if I couldn’t function anymore, I could handle it.” Alexander reports that Harris believed she had picked the one weapon likely to end in her suicide rather than rendering her disabled as she also said, “A gun was the one way I knew I wouldn’t mess it up.”
Destroyed Dresses
Harris suffered a major trauma in March 1979. Returning from a trip with Tarnower, Harris found the clothes that she had left in a closet in his home destroyed. Duncan Spencer writes in Love Gone Wrong: The Jean Harris Scarsdale Murder Case, “Suzanne [Van der Vreken] said, ‘[Harris] found her clothes ripped and slashed . . . One sleeve was ripped from the body of a dress, there was a slash in every dress and all of the dresses there were slashed and ripped.’ Suzanne went on to say that Mrs. Tryforos had visited the Tarnower house before the doctor and the headmistress returned from Jamaica.” Reluctant to complain right after their vacation, Harris said nothing to Tarnower – even though one-third of her wardrobe had been viciously destroyed.
This was not the only time Harris found her property destroyed. On one occasion, she found a nightgown covered with orange stains. Even more upsettingly, she found a new dress still in its box, no longer folded, but rolled up and smeared with human feces.
Harris believed Tarnower was responsible for the cost of these two damaged items of apparel. She also knew he kept two wallets filled with cash. She took money that would cover the cost of the two destroyed items from one of those wallets.
In Christmas 1979, Harris and Tarnower vacationed in Palm Beach, Florida. Harris writes in Stranger in Two Worlds, “We were there for two very happy weeks. Mrs. Tryforos outdid herself this time. In addition to phone calls and telegrams, she placed an ad on the front page of The New York Times to tell the doctor, long distance, that she loved him forever. It was something that might be considered ‘cute’ if you could spare the $250 that it cost, if you were in your teens, and if the person you addressed it to wasn’t a 69-year-old man spending a two week vacation with another woman. Under the circumstances it would be hard to imagine anything more tasteless and deliberately mean.” Harris continues that Tarnower reacted with “horror” and exclaimed, “Jesus! I hope none of my friends see it.”
Harris writes that she thought, “I’m your friend, Hy, and I see it.” However, she tried to make light of her pain by saying, “Why don’t you have her try the Goodyear blimp next time, Herm?”
Troubling Times at Madeira
In 1979, just over two years into Harris’s tenure as headmistress, the Madeira Board hired professional school consultants Russell R. Browning Associates to examine how the school rated with potential donors. In May 1979, the Browning Report was complete. Shana Alexander reports, “One director said Jean Harris was the most controversial head of school in the nation.”
The report quoted one parent saying, “Mrs. Harris doesn’t care what she says, and isn’t careful to whom she says it.” It also criticized her lack of ability to handle disciplinary situations effectively, a shortcoming that one “friend” of the school said caused several sets of Madeira parents to try to dissuade prospective new families from applying.
While the report quoted people who made positive comments about Harris, its recommendation was to “get rid of Jean Harris immediately” and install an interim headmistress while searching for her replacement.
The board voted to ignore the Browning suggestion.
Nonetheless, the report devastated the emotionally fragile Harris. She now believed it was likely only a matter of time before she lost her job. It seemed like everything in her life was slipping away from her. Her boys were grown and out of the house. The man she deeply and desperately loved only tolerated her. She was being repeatedly and cruelly harassed. Now she feared losing her job. There seemed to be nothing solid in her life, nothing on which she could depend.
On September 18, 1979, a Madeira clique that called itself the “Brazen Hussies” played a prank that misfired. A member accidentally poured caustic toilet bowl cleaner instead of shampoo over the heads of new members. One girl’s face was badly burned. Harris drove the girl to the hospital. When the injured girl returned to Madeira, she became Harris’s special protégée and friend.
In March 1980, a Madeira official informed Harris about marijuana use in a dorm. “I’ll have a talk with the house mother,” Harris said. The official stated that the house mother was said to be involved. Room searches were made. Marijuana seeds and stems were found along with paraphernalia.
The girls in those rooms were taken to a meeting of both adult officials and Student Council members. Some students said, “If you’re not expelled for this, what do you have to do to get thrown out of this place?” Others said this activity was so common it made no sense to make a big deal out of it.
Harris sided with kids who believed the malefactors should be expelled. A vote was taken and four seniors were expelled only two months before graduation. A student protest developed, leading to a rally in support of them.
In the immediate wake of this blow-up, Harris wrote Tarnower a long, rambling letter in which she pled for his affection and complained about the wrongs she claimed Tryforos had perpetrated. She told him about having 1/3 of her wardrobe slashed and ripped, about finding a nightgown covered with orange stains, and a dress smeared with excrement. She told him about years of being repeatedly awakened in the middle of the night by a jeering caller.
The Fateful Day
On the morning of March 10, 1980, Harris read a letter from the girl who was injured in the Brazen Hussies incident. The teenager wrote, “This isn’t a ‘hate’ letter at all. I just feel that you are not handling the situation correctly.” The girl said people knew pot smoking was common so punishing four with expulsion was “hypocritical.” This gentle criticism from a girl Harris had singled out for protection and special friendship devastated the headmistress. Spencer reports that Harris showed the letter to Madeira’s second-in-command, Kathleen Johnson, and to English teacher Ruth Katz. Johnson, who later took over as Madeira’s acting headmistress, recalled, “It’s too bad that letter upset her.” Johnson said the letter appeared to have an extraordinarily traumatic effect on Harris. “It was as though she had something pulled down in front of her eyes,” Johnson commented. “She hadn’t understood what we had said to her.”
According to Spencer, Katz recalled, “I simply came down the hall to wish her a pleasant holiday, and I observed her over the letter. It was clear to me that Mrs. Harris was weary and discouraged; numb and very quiet – maybe glazed.” Sympathetic to the “drain” Katz saw in Harris, she gathered a bunch of daisies and placed them on the seat of Harris’s car.
The critical letter from a girl Harris had aided and taken under her wing led Harris to a terrible decision. Later, she said in a courtroom, “It sort of put a box on my life.” Spencer reports Harris recalling, “If she thinks I’ve failed her, too [like the board, like Tarnower, like the students], I’ve really blown the whole thing. I’ve failed everyone. I was doing the best I could do; it just wasn’t enough. I didn’t have the strength to do more.”
She decided that she had failed completely and had no reason to live.
Shots in the Night
At 5:16 p.m., she called Tarnower.
“Hy, it’s been a bad few weeks,” she said. “I’d like to come and talk to you for a few minutes.”
He replied that a niece was coming for dinner.
“That’s all right,” Harris said. “She always leaves early. I couldn’t get there before 10:30.”
“It would be more convenient if you came tomorrow,” Hy said.
“I won’t be able to see you tomorrow,” she said. “Please, just this once, let me say when.”
“Suit yourself,” he replied.
After that phone call, Harris picked up the gun. She loaded it, trying to ensure all chambers were filled.
Harris felt she no longer had anything to offer and could no longer function. Thus, she would die. Her death would be peaceful. She would enjoy a last few minutes with Tarnower, talking with him and feeling “safe” one last time. Then should would go to the pond on his property, the one around which the lovely daffodils grew, and shoot herself.
Her drive was oddly peaceful for she knew what she would do and how her life would end. At one point she thought, “What if Hy says something to spoil my resolve to die?” Then she thought, “I won’t let him know what I’m going to do, I won’t stay too long, and I won’t let him spoil my resolve.”
She knew the dedicated doctor was used to getting up in the middle of the night to help people.
She arrived at 10:45 p.m. She expected the front door would be unlocked but it was not. Holding her pocketbook and the daisies she had found in her car, she went through the garage as she often had before and up the circular stairway. “Hy,” she called. “Hy, Hy.”
Harris heard him stirring. She sat on the bed that was “hers” when she stayed at his house. She turned on the light and saw Tarnower in his blue pajamas.
“I thought you’d put a lamp in the window,” she said. “It’s black as pitch out there.”
Tarnower angrily barked, “Jesus, it’s the middle of the night and you wake me up!”
“I only want to talk, Hy, and I won’t be long.”
“I don’t feel like talking in the middle of the night,” he answered.
“I brought you some flowers,” she said. “Have you written any more on the book?” Tarnower had decided to write another book, this one on the subject of longevity.
“Shut up and go to bed,” he said. “I don’t want to talk.”
“Won’t you really talk to me for a little while?” she begged.
Silence.
“There’s a shawl here,” Harris said. “I want to be sure Kathleen [a daughter-in-law] has it. I’ll just get it.”
Harris headed for the nearest bathroom. She turned on the light and saw a greenish blue satin negligee. Believing the owner of that item had destroyed Harris’s clothes, she picked up the negligee and took it to Hy’s bedroom where Harris tossed it on the floor.
Denied the final “safe” feeling she craved, Harris returned to the bathroom where she was confronted by a box of hair curlers she knew to be those of Tryforos. Harris threw the box and it crashed into a side window.
Tarnower jumped up from bed. When Harris walked back into the bedroom, he struck her across the mouth. She ran back to the bathroom, picked up another box, and tossed it so it smashed a mirror.
She went back to the bedroom and he struck her again on the mouth.
Harris felt all agitation drain out. The last few minutes of pleasant talk were not to be. Why bother with going to the pond? She sat on “her” bed and pulled her hair behind her ears. She raised her face to Tarnower, shut her eyes, and urged, “Hit me again, Hy. Make it hard enough to kill me.”
“Get out of here,” he growled. “You’re crazy!”
“Never mind,” she said. “I’ll do it myself.” She zipped open her pocketbook and took out the gun. She raised it to her head. Tarnower lunged at her, knocking the gun down, and making it go off in the process. Spencer writes, “The bullet passed through the web of [Tarnower’s] palm, through a solid inch of muscle, striking no bone, no important nerves or ligaments or tendons, and half-spent, struck Tarnower’s chest wall, hitting the clavicle or collarbone and clipping the vena cava, a large blood vessel returning blood to the heart. The bullet then stopped, having penetrated the chest wall less than an inch.”
Tarnower shouted, “Jesus Christ! Look what you did!” Then he went to the bathroom to treat the (relatively minor) wound. Spencer notes, “There is one lapse in Tarnower’s reaction that merits examination. He knocked the gun out of Harris’s hand even at the expense of the shot to his own hand. But then, having painfully gotten control of the situation, he didn’t take advantage of it by getting the gun and throwing it out the window, unloading it, tossing it down the spiral staircase, or merely hanging onto it with his good hand while he took a close look at the wounds in the bathroom. The logical, consistent explanation is that he knew the first shot had been fired by mistake.”
While Tarnower was in the bathroom, Harris was on her knees looking for the gun under “her” bed. She pulled it out. Tarnower was back. He grabbed her upper arm tightly, causing her to drop it. With the gun in Tarnower’s wounded right hand, he moved to the head of “his” bed and buzzed for his servants. That he buzzed with his left hand and held the gun in his right is provable, as Spencer observes, “by the fact that blood was found on the gun and the bed and none on the buzzer.”
A desperate Harris begged, “Hy, please give me the gun, or shoot me yourself, but for Christ’s sake let me die.”
“Jesus, Jean, you’re crazy, get out of here!” Tarnower shouted.
She pulled herself up and grabbed for the gun. Tarnower left the buzzer to grab her wrist. He lunged forward. She believed she had the gun in her control. She felt what she believed was the muzzle in her belly and pulled the trigger. Despite the loud noise, Harris thought, “My God! That didn’t hurt at all! I should have done it long ago.”
Tarnower fell back. Harris jumped up. She ran out of his reach. She put the gun to her head. She took a very deep breath that she expected to be her last breath and pulled the trigger. The gun clicked.
Astounded, because she was sure she had filled all chambers, she lowered the gun and gazed at it. She pulled the trigger. Boom! A shot rang out. She raised the gun to her head again. She repeatedly pulled the trigger and empty chambers repeatedly clicked.
One thing that must be noted is that Harris could only recall pulling the trigger twice at times when Tarnower was shot. She remembered the time when he brought her hand down from her head, making it go off and into his hand. She remembered consciously firing at herself when she believed the muzzle was poking in her belly, a shot that probably went through Tarnower’s arm.
However, all doctors who examined his corpse believed he was shot at least three times. Most believe he was shot four times. Harris simply could not recall or account for those shots. She may have had a temporary blackout when they were struggling.
She ran to her coat. She knew there were bullets in a pocket. The coat was beside the bedroom TV. She retrieved the coat but realized the gun was full of spent cartridges. She could not put fresh bullets in until the cartridges were out. Harris went to the bathroom to try unloading the cartridges by banging the gun against the bathtub. The bathtub was chipped by her efforts but no cartridges dislodged and the gun flew out of her hand and into the tub.
Harris went back to the bedroom where she saw Tarnower. Harris shouted, “Somebody turn on the goddamn lights! I’m going for help!”
She ran into the rain, got in her car, and raced out of Dr. Tarnower’s driveway. As she began to turn into a parking lot with a phone booth, a police car flashing its lights bore down on her. Making a U-turn, she headed back toward the Tarnower residence. The police car followed. Both cars pulled up in front of that house. Harris jumped out and ran over to the police officer. She shouted, “Hurry up! He’s been shot!” As they ran up steps, Henri Van der Vrekan shouted, “She’s the one! She did it!”
Suzanne Van der Vrekan joined Harris and the police officer in the doctor’s bedroom. Shana Alexander writes in Very Much A Lady“Herman Tarnower was now on his knees between the two beds, slumped against the white telephone, its bloody receiver dangling down. With Suzanne’s help, the police officer gently laid the wounded man down on his back between the beds.” The cop ran downstairs for emergency oxygen as Suzanne took the doctor’s hand and softly spoke to him. Harris caressed his face and wailed, “Oh, Hi, why didn’t you kill me?”
Additional police officers rushed to the scene. Harris admitted she shot Tarnower but said she meant to kill herself. Harris refused medical attention for the bruise near her eye and for the swelling on her upper lip.
Detective Arthur Siciliano asked, “Who had control of the gun?”
“I don’t know,” Harris replied.
“Who owned the gun?” he asked.
“It’s mine,” she said.
“Who did the shooting? Do you recall holding the gun?”
“I recall holding the gun and shooting him in the hand,” she answered.
A stretcher with an unconscious and bloodied Herman Tarnower on it was carried past.
Long-time Harris friends Leslie and Marge Jacobson were asleep in their Manhattan home when awakened by Harris’s call. “Leslie, I think I’ve killed Hi,” Harris said.
Charged with Murder
“Do not utter another word!” he ordered. Leslie dressed to meet Harris and told Marge to phone an attorney who worked with Leslie, William Riegelman, and tell him to rush to the police station to see Harris. Riegelman did and found Harris being booked for aggravated assault. Her white blouse was streaked with blood and she was badly bruised on her mouth and right eye. A call came in from St. Agnes Hospital. Tarnower had been pronounced dead and, at the police station, the charge against Harris increased to second-degree murder, the most serious possible in New York unless the victim is a police officer or prison officer on duty.
Friends recommended respected attorney Joel Aurnou. Aurnou met her. A sobbing Harris said she did not care what happened to her, and wanted no defense. She said she had no reason to live.
Aurnou came up with a reason. He said if she did not defend herself, David and Jimmie would be known as a murderer’s sons. Did she want her sons stigmatized? Love for her grown sons motivated her to want to prove her innocence. She told Aurnou all that she could remember of the bedroom struggle, admitting she could only account for two shots.
Prosecutor George Bolen ridiculed this scenario. He insisted Harris had murdered Tarnower. Before trial, he crowed, “All I need to prove intent is Herman Tarnower’s body and four bullet holes!”
A Defense Puzzle
One puzzling aspect of the trial of Jean Harris is that her plea was simply “not guilty.” Many observers believed she should have pled guilty to first-degree manslaughter, offering the legal defense of “Extreme Emotional Disturbance” or EED. A legal rather than psychiatric term, New York’s penal law in 1967 defined it to state that jurors “may consider all emotions which in fact influence . . . conduct, such as, for example, passion, grief, resentment, anger, terror, fright, hatred or excessive excitement or agitation, and these emotions need not necessarily be of sudden or spontaneous occurrence. They may have simmered in the defendant’s mind for a long time.” In a major EED case, People v. Patterson, the New York Court of Appeals wrote, “It may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious, and then explicitly coming to the fore.”
Judge Betty D. Friedlander, who represented the defendant in the Patterson case, asserts, “Jean Harris is the person that defense was written for.”
Alexander believes it was not used because “it implies a homicidal rather than a suicidal state of mind.” In Stranger in Two Worlds, Harris recalls that her lawyers always explained EED as requiring her to say that she “murdered Hy” but “under extreme emotional disturbance.” She writes that she replied, “You’re telling me that the way to be acquitted of murder is to say that I murdered a man. I didn’t murder Hy, and nothing and no one will ever induce me to say that I did.”
However, Alexander believes that the degree of turmoil Harris was suffering makes intent virtually impossible to determine. She also notes, “There is no inconsistency between an EED defense and a ‘tragic accident’ defense. Indeed, one could have caused the other.”
The People v. Jean Harris
Judge Russell Legget presided at trial.
A jury of eight women and four men was impaneled. Four of the jurors were black, three of them women. The foreperson was a male bus mechanic. The other three men were the black social studies teacher, a systems analyst, and a retired school administrator. The black women were a keypunch operator, and anti-poverty worker, and a part-time chambermaid. The eight white women included a special education teacher, a housewife, a reading teacher, an Avon Products salesperson, a worker for the New York City Board of Education, and a part-time cardiac therapy nurse.
The trial began on November 21, 1980.
Bolen read the three charges against Harris: count one, murder in the second degree; count two, criminal possession of a weapon in the state of New York, second degree; and count three, criminal possession of a weapon in a place not the defendant’s home or place of business, third degree.
In his opening, Bolen stated, “No one’s going to appear in the court with a movie camera and a screen, or a videotape and play for you what happened at the residence of Dr. Herman Tarnower March 10 and particularly what happened in his bedroom.” Bolen discussed the way Tarnower divided his romantic and sexual attentions between Harris and Tryforos. Bolen later states that after dinner, Tarnower “went up to the bedroom and retired for the night. Several hundred miles away, Jean Harris placed keys into the ignition of one of the school’s cars and with her in the car was a revolver and a number of cartridges.” He promised to prove that the defendant “consciously, volitionally, and intentionally fired five shots.”
Opening for the defense, Aurnou asserted, “There came a time on that night when both Jean and Dr. Tarnower struggled over the gun, when both Jean and Dr. Tarnower fought over her life – and both of them lost. He lost his life in what we will show you was a tragic accident, and she was left with a life she no longer wanted to live.”
Aurnou also said, “We contend what happened in the case did not happen in the way the prosecutor described it. . . . Facts will show you a very different version; when we say facts, we mean physical facts found and available at the scene.”
After Bolen finished direct examination of one of the first officers at the scene, Daniel O’Sullivan, Aurnou asked in cross-examination, “Did you hear [Harris] indicate that it was her intention that she never return to Virginia alive?” O’Sullivan answered, “Yes.” Aurnou asked, “Did you hear her answer that she did not know [who had control of the gun]?” Again, the officer said, “Yes.” He answered, “That’s correct” when Aurnou asked if she had said she did not know who pulled the trigger. Aurnou asked, “Did you also hear my client say, sir, that she asked the doctor to kill her because she wanted to die?” Yet again, O’Sullivan answered, “Yes.”
Bolen called surgeon Dr. Harold Roth who arrived at the Tarnower residence as the wounded man was being put in the ambulance and accompanied him to the hospital. He administered cardiac massage but Tarnower was dead by the time he got to the hospital. His right arm was “totally disarticulated.”
On cross, Aurnou asks, “If you had had seven or 10 minutes more . . . would that have made a difference in his ability to survive?
“It might very well, yes,” Roth testified. “Any minutes would have made a difference.”
Aurnou laid support for the defense contention that the failure of the police to rush Tarnower to the hospital was part of the “tragic accident” resulting in his death. Alexander writes, “The two fatal bullet holes, one in front, one in back, lined up so perfectly that it appeared to everyone, doctors and medics as well as the cops, that Tarnower had sustained a single, superficial flesh wound clean through the shoulder, an illusion strengthened by the fact that there was surprisingly little external bleeding.”
On redirect, Bolen got Roth to say that police consider a hand wound that goes from front-to-back a “classic defense wound.” The prosecutor argued that Tarnower sustained this wound when he held his hand up to ward off a direct and murderous shot.
Bolen called Westchester County Deputy Medical Examiner Louis Roh, M.D. to the stand. When Roh autopsied Tarnower, he found five wounds, four wound tracks, and three bullets. He testified, “The one bullet that caused the wound to the hand is the one that caused the wound in the right anterior chest wall.” He supported the prosecution contention that the hand wound was sustained when Tarnower vainly tried to ward off a shot because the hand and chest wounds can be lined up and because when the bullet dropped into the chest cavity after hitting the collarbone and cutting a big vein, it did not have much force. He further testified, “It is my opinion that it is consistent with a defense wound.”
Trilling reports, “To counter Aurnou’s claim that the police delay could have caused Tarnower’s death, Bolen questioned the pathologist as to how much blood the doctor would have had to lose to go into intractable shock. Roh believed that the doctor went into intractable shock within five to 10 minutes after he sustained the injuries.”
Harris moaned during this testimony.
Bolen asks if the wounds were “consistent” with a struggle over a gun between a man of Tarnower’s size and a woman of Harris’s. “It is not consistent with a struggle for the gun. . . . Number 1, the multiplicity, the person receiving three gunshot wounds and four wounds on the body . . . Secondly, the location of these wounds. If two persons are struggling over the gun and discharging during the struggle, I would expect to see the wounds mainly in the front part of the body,” Roh responded.
Aurnou got Roh to admit on cross that in his original autopsy report, he said that four bullets had struck Tarnower instead of the three to which he testified at trial. The suggestion was made that Roh changed his opinion to bring it more in line with the idea that the hand wound was a classic defensive wound.
The prosecution soon rested.
One of the first defense witnesses was Madeira Board Chair Alice Faulkner. Harris trembled and wept as Faulkner testified to finding a letter from Harris as well as a companion document stating, “I want to be immediately CREMATED AND THROWN AWAY.” Both were found on a chair by the living room door of the home Madeira furnished for the headmistress.
The letter reads:
Alice –
I’m sorry. Please for Christ’s sake don’t open the place again until you have adults and policemen and keepers on every floor. God knows what they’re doing. And next time choose a head the board wants and supports. Don’t let some poor fool work like hell for two years before she knows she wasn’t ever wanted in the first place. There are so many enemies and so few friends. I was a person and nobody ever knew.
The letter was unsigned. The document asking for cremation is signed twice.
Forensic scientist Herbert MacDonell testified to measuring the angle of a bullet hole through a glass door and tracing a ricochet mark to establish the zone within which the gun was fired. Alexander writes, “If the bullet went through Tarnower’s hand in the manner Jean had described, the blood would spray in certain specific patterns and parabolas, which would tend to confirm her story. In examining the new close-up photos of the door frame, he spotted dark specks that could be human blood.” He later confirmed they were blood. Alexander continues that MacDonell “discovered on the door frame a ‘directional bloodstain,’ an oval droplet 1/25th of an inch in diameter, which again confirms Harris’s story of where she and Tarnower were standing when the first shot was fired.”
MacDonell attacked Roh’s testimony. MacDonell testified that if the doctor had held his hand up to ward off the gun in “a classic defense posture,” his face and entire pajama sleeve would have been covered with a thin spray of blood – they were not. This testimony powerfully rebuts the contention that Tarnower was trying to ward off a shot from a Harris who came barreling down on him with the gun.
He also testified that his reconstruction indicated that the shot Harris fired when she thought the gun barrel was pointing at her stomach had broken Tarnower’s arm.
MacDonell found small bloodstains in the bathtub – exactly the right size to have been put there by someone banging a gun filled with fresh blood against enamel. MacDonell asserts that the gun was filled with blood when Tarnower held it in his injured hand.
Alexander writes, “By examining the primer in the base of the spent cartridges under low-power magnification, the professor [MacDonell] can tell whether the firing pin has struck the primer once, or more than once. . . . Since he found four shells double-struck, and one single-struck, he has been able to calculate the precise sequence of the five shots fired from the six-cylinder weapon: bang, bang, bang, bang, click, bang, click, click, click, click.” That sequence precisely supports Harris’s recollections.
Bolen asked MacDonell if he had examined the bloodstained bed sheets. MacDonell admitted he had not and said he would like to. The expert spent a lunch hour looking at the sheets. Back in court, he pointed out how the patterns supported Harris’s story. For example, he said a stain looked like someone might have laid a gun across it. MacDonell laid his own gun across it and the fit was perfect.
Over a weekend recess, Bolen talked to a defense pathologist who said that if a bullet passed through a hand before entering the chest, one might find tiny palm tissue in the chest. Bolen related this to Roh and asked Roh to look for such tiny palm fragments.
Bolen recalled Roh who testified he found three tiny fragments that could be palm tissue. On cross, he admitted they could be cartilage, cotton fibers, or collarbone fragments. Aurnou put on several pathologists who said the fragments cannot be identified as palm material.
One of those pathologists was the respected A. Bernard Ackerman, M.D. Ackerman testified, “My diagnosis is unequivocal. All three fragments came from tissue other than the [palm] skin of Dr. Tarnower.”
Bolen recalled Roh yet again and asked if it would be anatomically possible for Tarnower to have sustained the arm wound in various positions. On cross-examination, Aurnou asked, “Is it also anatomically possible he could have sustained it while sitting on the toilet?”
Harris gasped, “Joel, how could you?”
Harris in Her Own Defense
Harris took the stand. Aurnou asked about her mental state after the marijuana brouhaha at the Madeira school. Her reply was agonizingly slow, “I . . . couldn’t . . . function.” He quotes from her resignation letter that stated, “I was a person and no one ever knew.”
Aurnou urged, “Tell the jury what you meant.”
She wept as she said, “I think it had something to do with being a woman who had worked for a long time and had done the things a man does to support a family but is still a woman. I always felt that when I was in Westchester I was a woman in a pretty dress and went to a dinner party with Dr. Tarnower and in Washington I was a woman in a pretty dress and the headmistress. But I wasn’t sure who I was . . . and it didn’t seem to matter.”
Aurnou asked, “It mattered to you, didn’t it?
She said, “I was a person sitting in an empty chair.”
Later, Aurnou asked, “Did you ever that night intend to shoot or kill Dr. Tarnower?”
“No, I didn’t,” she replied. “The most violent thing I did was throw a box of curlers, and I didn’t throw them at him. I never for a moment wanted to hurt Hi, never in 14 years. And certainly not that night.”
Bolen asked if she was upset Herman dated Lynne Tryforos.
“Yes,” she answered. “As I said before, I thought it denigrated Hy . . . I think this whole conversation denigrates Hy and I hate it!”
“You were very concerned about the doctor’s reputation?” Bolen asked.
“I was indeed, and this thing is tearing me apart,” she said.
Later Bolen asked how she referred to Tryforos in the letter she sent Tarnower on March 10.
“I referred to her as what I had experienced her to be . . . Dishonest . . . adulterous . . . a whore,” she said.
He asked, “Those were very strong terms to use, aren’t they?”
“They are,” she answered. “They are very out of character for me to use. But it’s not like me to rub up against people like Lynne Tryforos.”
Bolen entered the letter that she had written just before Tarnower’s death and that would become known as the “Scarsdale Letter” into evidence. Then he read it to the jury. It began, “I will send this by registered mail only because so many of my letters seem not to reach you.” She wrote about years of anonymous taunting phone calls, having her dresses torn, having a nightgown destroyed with orange stains, and the horror of finding a dress smeared with feces. She writes of her pain when she discovered that he sold the ring he had presented to her as an engagement ring: “I desperately needed money all those years. I couldn’t have sold that ring. It was tangible proof of your love and it meant more to me than life itself. That you sold it the summer your adulterous slut finally got her divorce and needed money is a kind of sick, cynical act that left me old and bitter and sick.”
The jury convicted Jean Harris of second-degree murder and of both weapons charges.
Given the powerful scientific testimony of experts like MacDonell and Ackerman stating that the physical facts supported Harris’s story, why did the jury convict? Part of it may be that the testimony was too complex for lay persons to adequately follow and understand. Spencer writes, “The jury ignored almost all the evidence and all but a few of the 92 witnesses who appeared at the three-and-a-half month trial.” The jurors based their verdict on an inability to act out in the jury room a way for Tarnower to have sustained the hand wound in a struggle.
After the trial, Ackerman wrote an essay entitled, “The Physician As Expert Witness: Is Peer Review Needed?” He argued that prosecution doctors appeared to lose scientific objectivity in finding what would be best for the prosecution.
Twelve Years in Prison
Sent to the Bedford Hills Correctional Facility, Harris washed dishes and stairs and at one point headed the Inmate Liaison Committee, a post she relinquished due to poor health. She worked in the prison nursery. She also wrote three books: Stranger in Two Worlds, They Always Call Us Ladies and Marking Time: Letters from Jean Harris to Shana Alexander.
New York Governor Mario Cuomo denied clemency to her three times but granted it in December 1992. Shortly after her sentence was commuted, she moved into a cabin in New Hampshire. Los Angeles Times reporter Pamela Warrick described Harris as “slight and delicate” as well as “very sad looking, especially around the eyes.” Harris said she entertains few guests other than sons Jimmy and David. After 12 years in unavoidably close quarters with fellow inmates, Harris cherishes privacy. “I can’t tell you how wonderful it is to be alone,” she said.
Harris told New York Times reporter James Feron she wanted to live “where there aren’t a lot of people, where I don’t have to look into someone else’s window.” She told Feron that she spent much time “gardening, painting my garage, and writing.”
Harris continued working for the Bedford Hills Correctional Facility Children’s Center. All profits from books she wrote were donated to the Children of Bedford Foundation that aids the center. However, Harris expressed discomfort with the credit sometimes given to her. “I think I’ve helped a little bit with that effort, but it is its founder, Sister Elaine Roulet, who is the moral essence of the Children’s Center and that prison,” she told Warrick.
According to Warrick, Harris rejected comparisons of her case to those of battered women who killed abusers. When Barbara Walters said, “You did become a symbol of the woman wronged,” Harris replied, “No. I think I’m the woman who let herself be wronged.”
She believes that if her case has any larger implications, it is in the need for individual responsibility. She tells anyone struggling with problem relationships, “It’s up to you to make yourself happy.”
At the end of Warrick’s interview, the reporter asked if she would consider dating.
She answered, “Good heavens, no! Whatever for?”
In December 2012, Jean Harris died at the age of 89 in a New Haven, Connecticut assisted-living facility of complications relating to old age.
Bibliography
Alexander, Shana. Very Much A Lady: The Untold Story of Jean Harris and Dr. Herman Tarnower. Pocket Books. 1986.
Feron, James. “Jean Harris Savors a New Life After Prison.” The New York Times. June 27, 2993.
Harris, Jean. Marking Time: Letters from Jean Harris to Shana Alexander. Kensington Publishing Corp.1991.
Harris, Jean. Stranger in Two Worlds. Kensington Publishing Corp. 1986.
Luther, Claudia. “Jean Harris dies at 89; killer of ‘Scarsdale Diet’ doctor.’ Los Angeles Times. December 28, 2012
Sack, Kevin. “Clemency Given to Jean Harris in Murder Case.” The New York Times. December 30, 1992.
Spencer, Duncan. Love Gone Wrong: The Jean Harris Scarsdale Murder Case. A Signet Book. 1981.
Tarnower, M.D., Herman and Baker, Samm Sinclair. The Complete Scarsdale Medical Diet. Bantam Books. 1980.
Trilling, Diana. Mrs. Harris: The Death of the Scarsdale Diet Doctor. Harcourt Brace Jovanovich Publishers.
Warrick, Pamela. “‘The Myth of Me’: Aftermath: Jean Harris rejects the labels thrust upon her after the Scarsdale Diet Doctor murder in 1980, saying she’s just a ‘tired old lady.’ But she still has the energy to speak out for other women still in prison.” Los Angeles Times. July 19, 1993.
Eyewitness misidentification plays a part in more than 70 percent of wrongful convictions. Even after the actual rapist confessed, even after DNA evidence exonerated her former husband and he was set free after more than 15 years in prison, his former wife still believes she saw what she could not have seen.
On September 30, 1979, after a hamburger run to a nearby Jack in the Box, Kevin Lee Green returned home at 1:30 a.m.to find his pregnant wife Dianna unconscious in their Tustin, California apartment, suffering from a severe blow to her forehead. She was rushed to a hospital where an obstetrician was able to detect a fetal heartbeat. But within a few hours, the placenta detached, and their daughter died in the womb. An emergency C-Section saved Dianna’s life.
Whatever relief Green could find in his wife’s survival was extinguished when he was arrested three months later for assault with a deadly weapon and second-degree murder due to the death of his nearly full-term daughter.
A cashier at the Jack in the Box confirmed Green’s alibi, and police reports noted that the hamburgers were still warm when the first responders arrived on the scene. Green reported seeing an African-American man loitering in the apartment complex as he left to get the hamburgers, yet Green went to trial when his wife identified him as the perpetrator.
After the attack, Dianna Green suffered months of severe amnesia and aphasia – a loss or impairment of the power to use or comprehend words. The brain damage from the trauma had been so severe that when the trial went to court a year after the incident, she still had trouble giving coherent testimony and struggled to spell her own last name for the court record.
Kevin Lee Green
The main argument made by the prosecution was circumstantial evidence that the Greens had fought the night of the assault. The prosecutor told the jury that Green resented that he could not have sex with his wife so late in her pregnancy and even complained about it to friends. Neighbors remembered hearing what they thought was the 21-year old Marine corporal and his 20-year old wife fighting on the night of the attack and noted that the couple fought often during the course of their less than seven-month marriage. Dianna recalled Green hitting her with his keys.
The Greens’ marriage was rocky from the beginning. They were married on the same day that Kevin’s divorce from his first marriage came through. Dianna was already three months pregnant. Green, at the time, was seeking to emulate his father and continue his career in the military.
Prosecutors presented forensic evidence of rape at the time of the attack, including semen found in vaginal slides. DNA Fingerprinting techniques were first developed in 1984 by Alec Jeffries, five years before Green’s case. The analysis of genetic material was not yet common in criminal investigations, so the semen could not be used to connect a specific man to the crime. Dianna’s insistence that her husband was the perpetrator was the only evidence that linked Green to the crime.
The prosecution used psychiatrist Dr. Martin Brenner to assert that Dianna Green was a reliable witness. The defense was denied its request for an independent psychiatrist to evaluate her mental state.
After only 10 hours of deliberation, the jury found Green guilty. He was sentenced to 15 years to life.
Unreliable Eyewitness Testimony
The basic tenet of the U.S. justice system is that a person is innocent until proven guilty. In light of convictions like this one, this seems naïve. While it is comforting to believe that jurors are reasonable people—influenced more by evidence than by tears—and that they will ultimately free the innocent and punish the guilty, wrongful convictions are far from rare. Each year, jurors respond strongly to evidence that is, at best, weak.
Green continued to proclaim his innocence from his Soledad prison cell. He requested and passed a defense-administered polygraph test. He was unable to afford a DNA test that might reopen his case.
DNA Exonerations
With the goal of overturning wrongful convictions and overhauling the criminal justice system, Barry Scheck and Peter Neufeld founded The Innocence Project in 1992. This non-profit was created after findings released by the U.S. Department of Justice and the U.S. Senate, in conjunction with the Benjamin N. Cardozo School of Law, showed that eyewitness misidentification played a part in more than 70 percent of wrongful convictions. Within these wrongful convictions, other major and worrisome patterns were evident: 70 percent of the people freed by The Innocence Project belonged to ethnic minorities, and almost all were poor. These statistics underscore systematic flaws in identifying, deposing, trying, and convicting suspects.
Dr. Elizabeth Loftus, a renowned cognitive psychologist, and Katherine Ketcham wrote about misled memory in their book, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse. They begin by comparing the human mind to a bowl of clear water. They ask us to imagine memories as teaspoons of milk added to the bowl as experiences and years go by. The more memories that become mixed into the water, the murkier the mind gets, making it harder to distinguish each separately. “Memories don’t sit in one place, waiting patiently to be retrieved; they drift through the mind, more like clouds or vapor than something we can put our hands around. Although scientists don’t like to use words like ‘spirit’ and ‘soul,’ I must admit that memories are more of a spiritual than a physical reality: Like the wind or breath or steam rising, the cirrus and stratus of memory exist, but when you try to touch them, they turn into mist and disappear.”
Loftus, a distinguished professor of social ecology at the University of California, goes on to explain how fragile memories can be and notes experiments conducted with thousands of subjects over the course of her career. She recalls times when she was able to mold people’s memories, motivating them to recall nonexistent circumstances. She has been able to “implant false memories in people’s minds, making them believe in characters who never existed and events that never happened.”
Eyewitness testimony is neither perfect nor fixed and can even be influenced by extraneous sources. When a memory is reconstructed, people often use prior knowledge, expectations, and attitudes to fill in the inevitable gaps. Information that comes from an eyewitness can be easily influenced, intentionally or unwittingly, without the witness realizing it. However, juries tend to rely heavily on this type of evidence during deliberations and are not likely to discredit it. In Green’s case, the jury found it hard to believe his corroborated cheeseburger alibi against his own wife’s testimony.
Recent studies of severe closed head injury, or CHI, show that damage to the prefrontal lobes not only causes memory loss, but also heightens susceptibility to creating false memories. This could easily have been the case with Green’s wife. One recent study by Michele Ries and William Marks at the University of Memphis reported that survivors of closed head injuries are not only more likely to acquire false memories, they are more likely to feel confident that those memories are true: “[S]evere CHI participants reported having greater confidence in their false-positive responses than did the control participants.”Since memory is malleable, and eyewitness testimony is a powerful prosecutorial tool, most convictions of the innocent are a result of witness error or fabrication.
Some Innocence Cases of Note
In 1937, Charles Clark was convicted of armed robbery and murder based on identification by the storeowner’s adult daughter. Thirty years later, it was revealed that the woman could not at first identify Clark. Police had pointed him out to her, saying he was the guilty party. In 1968, a Detroit Bar Association committee designed to provide legal aid to the poor, which is now The Legal Aid and Defender Association of Detroit, began handling criminal cases. Clark was among its first cases, and researchers soon discovered that the sole witness was originally unable to identify Clark as the assailant and admitted that detectives pointed him out to her before the line-up. Clark was granted a new trial and the case was dismissed on motion of the prosecutor. Four years after his release, the state of Michigan awarded him $10,000 for his three decades in prison.
In 1967, an assailant entered the home of a New York doctor and fatally stabbed him. The doctor’s wife was also stabbed 11 times and barely survived. While she was recuperating, police brought Theodore Stovall to the hospital and asked her to identify him. Unlike a lineup, where several similar people are presented to an eyewitness to have a suspect identified, Stovall was the only black man in the room. She agreed that he was the assailant, later confirmed his identification in court, and Stovall was convicted. As The New York Times reported in 1965, “the Federal Appeals Court reversed the conviction on the grounds that Stovall’s constitutional rights were violated when the physician’s wife identified the accused in a ‘show-up’ at which the defendant was not represented by counsel.” Stovall’s case made its way to the U.S. Supreme Court, and his conviction was eventually struck down.
In 1984, a man broke into a woman’s apartment, sexually assaulted and robbed her. Ronald Cotton was arrested for these crimes. In January of the following year he was convicted of burglary and rape and sentenced to life plus 54 years based on identification by the victim and circumstantial evidence. A second victim identified a different man, but this evidence was not allowed at Cotton’s trial. A man convicted of other rapes later confessed to the crime. That evidence was not allowed during Cotton’s appeal. In 1994, Cotton was appointed two new lawyers who filed a motion for DNA testing. Semen from one of the victims matched the man who confessed to the crimes, and on June 30, 1995, after a decade of incarceration, Cotton was released from prison.
In 1986, Barry Gibbs, a letter carrier and navy veteran, was convicted of murdering a prostitute in Brooklyn and dumping her body on the Belt Parkway. A highly decorated New York City detective, Louis J. Eppolito, found Gibbs’s name among the prostitute’s clients and identified him as the prime suspect. David Mitchell, a jogger who saw the body being dumped, picked Gibbs out of a lineup and testified for the prosecution. Gibbs was sentenced to 20 years to life. Nineteen years later Mitchell admitted that he had lied on the stand after Detective Eppolito threatened his family. In the words of Justice Michael A. Gary, who overturned Gibbs’s conviction on September 29, 2005, Detective Eppolito induced Mitchell “into identifying Barry Gibbs in a lineup and in court at trial.” All the while, Mitchell “believed and continues to believe, that Barry Gibbs is not the person he saw disposing of the victim’s body.” Incidentally, the day Gibbs was released, Detective Louis J. Eppolito was under indictment for moonlighting as a hit man for the Luchese crime family. He is now serving a life sentence in federal prison.
To date, the Innocence Project has succeeded in freeing 289 wrongfully convicted and imprisoned people, many on the basis of DNA evidence. But despite its efforts, the project is only partially successful – those released have often languished in prison for decades.
Green Exonerated
As for Kevin Green, his name was cleared in 1996 after the creation of an offender DNA database in California. This database was able to match DNA found in crime scene semen to Gerald Parker, the infamous “Bedroom Basher.” Gerald Parker was responsible for a long series of rapes and murders in Orange County during the 1970s. The Green’s home was a few minutes away from the El Toro Marine Corps Air Station, where Parker was based.
In Orange County Grand Jury testimony, 17 years after the fact, Parker claimed to have felt so much guilt over Green’s conviction that he at one point called a local newspaper to say he was the one who had attacked Dianna Green. In his 1996 grand jury testimony, he admitted that there was a man in prison “because of something that I did.” He testified, “Out of all the murders and the crimes that I committed over the years that was the one that bothered me the most.” Parker is currently awaiting execution for, among other crimes, six counts of first-degree murder—one count of which is for the death of Green’s unborn daughter. (Since 2006, there has been a moratorium on executions in California due to the controversy over lethal injections.)
Kevin Lee Green was released from prison in 1996 after serving 15½ years. California Governor Gray Davis awarded him $620,000 in compensation for his wrongful conviction.
Green’s ex-wife – despite clear forensic evidence and Parker’s confession – remains convinced that Green is guilty. She now believes that Parker and Green attacked her together, with Green striking her first.
Shortly after Kevin Green’s arrest, Dianna filed for and won a multi-million dollar lawsuit for wrongful death against him. She went back to using her maiden name, D’Aiello, and lives with her mother in Southern California. She continues to struggle in her recovery: She testified to Judge Francisco P. Briseno during Parker’s trial for his attacks on all of his victims in 1999 that she has lost most of her hearing, most of her sense of smell, and often has trouble writing or articulating a thought.
After his release, one of Green’s first actions was to visit the grave of his unborn daughter to tell her that he was not her killer. He also filed a countersuit against D’Aiello to have the wrongful death judgment thrown out, which was settled outside of the courthouse. The terms for the settlement were not disclosed. He later moved to Missouri to be closer to his family. He is remarried and spends time with Desiree, his 16-year-old daughter from his first marriage to his high school sweetheart. He works part-time jobs. He does not hold any resentment against his ex-wife, as he proved when he spoke to local newspapers outside the Santa Ana courthouse shortly after the settlement for the wrongful death lawsuit. He said she was as much a victim of the system as he was.
An excerpt from Pro Bono: The 18-Year Defense of Caril Ann Fugate by Jeff McArthur (Bandwagon Books). An account of how her trial lawyer – who believed in her innocence – continued to represent her for free until she was paroled in 1976. In 1959, 19-year-old Charlie Starkweather was convicted of murdering 11 people. He was sentenced to death. Caril Fugate, his 14-year-old ex-girlfriend was convicted in a separate trial and sentenced to life.
Chapter Two
The Murders
It was a cold Monday evening at the KMTV newsroom in Omaha, Nebraska and the reports that typically fed the station’s telecasts were as flat and frigid as the snow-covered plains outside. There had been no extreme weather, no upcoming events, and nothing affecting the farming community, which were the usual news items in this typically bucolic part of the country. With the holidays over, it was going to be more of the same until spring thawed the stillness of the news.
The reporters often filled the time learning how to use the motion picture cameras they had only recently received. The cameras were a necessity for television news, which was typically not regarded with the same prestige as the well-established print media. If the local station hoped to compete with the newspapers, it would have to give the public what still photographs and typed words could not. But with no news stories in motion, nothing could be filmed.
The slow Monday ended and the station’s executives went home. The few remaining technicians and reporters scrabbled together whatever they could to fill news stories that night. In the meantime, the station gave way to NBC’s “Huntley-Brinkley Report” out of New York and Washington. It was a slow news day for them as well. The local Unitarian congregation was kicking off a fund drive to build a new church, the national debt was nearing $280 billion, and their lead in for the evening was “World’s Greatest Cartoons.”
Mark Gautier, alone in a dark control room upstairs from the bright lights of the studio, turned the volume of the television up to tune out the buzzing of the machines behind him. They were supposed to bring in information, but now they were only causing a useless racket.
Then he noticed a lot of chatter coming from the police radio on the shelves above the TV. It was unusual to hear much more than an occasional smattering of reports referring to domestic disputes and traffic problems coming from the box. What he heard now caused Mark to get to his feet and grab a pencil. He wrote what he heard: “Be on the lookout for a 1949 black Ford. Nebraska license number 2-15628. Radiator grille missing. No hubcaps. Believed to be driven by Charles Starkweather, a white male, 19 years old, 5 feet 5 inches tall, 140 pounds, dark red hair, green eyes. Believed to be wearing blue jeans and black leather jacket. Wanted by Lincoln police for questioning in homicide. Officers were warned to approach with caution. Starkweather was believed to be armed and presumed dangerous.
“Starkweather is believed to be accompanied by Caril Fugate, 14 years old, female, white, 5 feet 1 inch tall, 105 pounds, dark brown hair, blue eyes, sometimes wears glasses. Usually wears hair in ponytail, appears to be about 18 years old. Believed wearing blue jeans and blouse or sweater. May be wearing medium-blue parka.”
It was 5:43 p.m. January 27, 1958.
* * *
John McArthur heard the news report on the radio in his office the next day. He was a news junky, often listening to what was happening while at work, only to come home to watch a more in depth recap of the day’s events on television. This time it was the opposite way around. There had been sketchy information about a triple homicide the night before, and now they had further information about it on the radio. A 14-year-old girl and her 19-year-old boyfriend had disappeared, her family was discovered murdered, the parents’ bodies left in a chicken shack behind their home, and a baby’s body was in the outhouse; its head had been crushed by a rifle.
The sheer audacity of the murders was shocking enough to catch anyone’s attention and everyone turned on their radios and televisions to learn what was happening.
John didn’t have to turn far to reach his radio. Only a short swivel brought his legs into contact with a wall, or filing cabinet, or some other piece of furniture. Though John was a thin man, even his gaunt frame barely fit through the narrow passage into his office. If a drawer was open, he had to duck under or climb over it. If his partner Merril Reller wanted inside the office, it became a back and forth dance for one to enter and the other to leave. A chair rested outside the doorway because when clients came to visit they had to sit outside the office looking in.
The report on the radio was interrupted by a break in the case. The police had surrounded a farmhouse near Bennet, approximately 20 miles east of Lincoln, where Charlie was believed to be holed up. His car was parked in front, and no one answered a call to come out, not even the farmer who owned the property. A small army of police officials slowly moved in on the home, guns drawn.
* * *
Blackie Roberts and Dick Trembath, two of the reporters for KMTV, stood in the still, gelid air beside their car at the Meyer farm outside of Bennet. They had rushed from Omaha, more than 60 miles away, to film the capture of the two fugitives for KMTV. Before them, the police formed a wide perimeter around the house, and waited for the dispersal of tear gas before moving in.
Scattered among the men in uniform were farmers with shotguns, eager to see the young murderer captured or killed. They knew that August Meyer, the man who owned the farm, would never willingly aid a killer, even though Charlie had been a friend of August for years.
August, who was 70, had allowed Charlie to hunt on his farm from time to time. He had seen Caril whenever Charlie brought her with him, but he barely knew her. Now no one could discern what was going on inside; if the two were preparing an ambush, or if they would surrender as soon as it got hot.
“How come all the local people?” Blackie asked one of the sheriff’s men. “Did you form a posse?”
“No, that’s something else,” came the reply. “They were just in the area and came over to help.”
“What else is going on?”
“A couple of teenagers from Bennet were reported missing last night and the neighbors have been out looking for them.”
A patrol car engine roared to life. It was the signal. “Let’s move out!” someone shouted. “Spread out and stay low!”
The police car moved forward, and the men in uniform surged ahead. When the car rumbled into place in front of the house, it stopped. The men got out of the car and took cover behind the doors.
A loudspeaker squealed to life. “This is the police! We know you’re in there! We’ll give you five minutes to come out of there with your hands in the air!” They were met by silence, and police answered with the loud cocking of their guns.
A half dozen troopers ran as they spread out across the front lawn keeping low, carrying their stubby, wide barreled guns. Half way to the house they dove to the ground. A white flash trailed from one of the men, and a moment later a window crashed. A thin trail of smoke slowly began to snake its way out of the hole as the farmhouse filled with tear gas.
The troopers charged the home from every direction. The front door was kicked open, and as the smoke poured out, they rushed in, guns at the ready.
One man called out from the back of the house. It was not what they expected, not a shout at Charlie to drop his weapon, or a signal to tell the others where he was, but a genuine scream of disgust.
The man who had called out was at the doorway of a small, white shed attached to the back of the house. Inside was the body of August Meyer. There was no sign of struggle, no visible bullet wound. The only evidence of his death was a thin layer of blood peeking out from under him.
Blackie Roberts, who had followed the police inside, now shot a whole roll of film for the news. This was certainly a change from their usual photographs of placid pastures and town meetings. He just had to get past the crowd of police huddling around the house.
August’s brother was among the officers outside. One of the policemen who had seen the body confirmed what they had found. “Oh my God,” was all he could say.
Dick Trembath, also outside, walked down the lane to take photographs of Starkweather’s car, which was stuck in the mud just down the street. There was nothing unusual about it, except that Charlie had collected tires in the backseat.
As Dick was returning to the Meyer place, he was approached by a farmer who asked where he could find a policeman. There were plenty available, which Dick pointed out, and he asked the perplexed man what was happening. The man waved him off and continued toward an officer. Dick stood close enough to hear, but not so close to scare them away.
The man’s name was Everette Broening. The night before he had heard a car accelerate at high speed around 10 p.m. The next morning, after hearing about the missing teenagers, he had found a pile of school books along the side of the road a few miles up. All Dick heard him tell the officer after that was, “They’re in the storm cellar.”
* * *
The police stood on the pale, frozen ground surrounding the cement entrance of the storm cellar a couple miles from the Meyer residence. One civilian stepped up to the entrance, looked down inside, then covered his mouth and turned quickly away, his shoulders heaving.
Dick tried to make his way to the doorway to get a photograph. He was stopped by a trooper a foot taller than him. “Come on, I’ve got a job to do,” Dick said.
“You don’t want any pictures of what’s down there,” the man told him gravely.
The two teenagers who had been reported missing the night before, Robert Jensen and Carol King, lay at the bottom of the cellar. The girl was naked, her body lying zigzagged across the floor, her breasts and groin fully exposed, her face as contorted as her body. Her blue jeans were bunched at her feet around her white bobby socks. One arm, still attached to the sleeve of her jacket, was wrapped around her back, while the other arm reached down to her knee as if making one last attempt at modesty. Her small hand rested in the fold of her leg. A blood stain led out of her buttocks and trailed down her thigh where she had been raped, and then stabbed. Her body was on top of her boyfriend, Robert. A pool of their mixed blood ran down the floor away from them.
Lancaster County Attorney Elmer Scheele soon filed first-degree murder charges against Charlie Starkweather. After what they had seen of the King girl, there was reason to believe Fugate was probably dead as well, and they expected to find her body dumped along the side of the road.
Neighbors were warned, posses were formed, and farmers from across the area converged on the narrow, unpaved main street of Bennet, a town of 490 people 18 miles southeast of the capital city of Lincoln, where the primary police headquarters was set up. The search centered around a line of police headlights and moved out from there into the dark, vast reaches of the nearby farmland. The heavily armed men stretched out into the night, some almost shooting one another as they spotted shapes in the dark. One officer was fired at when he tried to approach a farmhouse to warn the residents about Starkweather. It appeared they already knew, so he continued on to the next house.
Back at the KMTV newsroom, Ninette Beaver, a junior reporter, speculated that Charlie could have gone to the closest major town, Lincoln. “I doubt that,” Mark Gautier told her as he got his jacket to leave. “If he’s not holed up somewhere around Bennet, he’s probably made it out of the state by now.”
“Good lord, I hope so,” Ninette said. Her sister Joanne lived in Lincoln, and if Starkweather was going there, who knew what would happen. She waited for Mark to leave, then quickly called Joanne.
* * *
County Attorney Elmer Scheele had to duck his head slightly as he entered the magniloquent home of C. Lauer and Clara Ward. He was often the tallest man in any room. Though thin and introverted, his presence was imposing, and his gaze through his black, horn rimmed glasses was focused and intimidating.
The murder spree had gone from bad to worse. Only one day earlier Scheele and the Nebraska police had thought they had Charlie pinned down in a farmhouse, only to find its owner dead inside the house. And then they had found two teenagers brutally murdered, their bodies left locked in a storm cellar near a school. Never in the history of Nebraska had there been such a chain of killings, and now it had moved from the scattered small communities of the rural farmland into the more densely populated city of Lincoln. And even more disturbing, it had come to the upscale neighborhood near the country club.
Lincoln was a conglomeration of many small communities that had grown together over the decades. The resulting contrast in wealth and class was visible as one passed from the less developed north side of “O” Street to the more affluent south side of town, where the houses were larger, and the vast yards stretched out greener. For this type of bloodshed to enter any part of Lincoln was shocking enough. For it to enter the home of such a prominent figurehead was downright unthinkable.
Yet there was Mr. Ward, a well respected businessman, president of Capitol Steel Works, and a friend of the most influential people in the state, just inside of his front door, dead from a shot at point blank range with a shotgun. The last person to see him alive, in fact, was his close friend, Nebraska Governor Victor Anderson. Lauer Ward's wife Clara was found dead upstairs, a knife sticking out of her back, and their maid, Lillian Fencl, was found with her hands and feet bound, a gag in her mouth, and a knife embedded in her torso.
Scheele was a professional at hiding his feelings, but outrage was beginning to boil over as the pressure was building. Starkweather had eluded every road block and patrol that was out to stop him, and now he had to be stopped before panic spread. Something else disturbed him; a smell overwhelming the second floor of the house. It was more than the stench of death, which Elmer was used to. When he followed it to its source, where the odor was strongest, he found the body of Mrs. Ward, bound and gagged and lying dead between the two beds. Then he identified the aroma. It was perfume. Someone had tried to cover the smell of death by pouring it all over the room.
Mrs. Ward’s drawers and closets had been ransacked. Women’s clothes were scattered all over the place, as if someone had been shopping and had left the discarded apparel behind. Among them was Carol King’s jacket. Elmer was incensed. Up to this point he had been expecting to find Caril Fugate’s body in a ditch somewhere. But now it was clear. She was alive. And she was traveling as Charlie’s companion.
Outside, Merle Karnopp, the county sheriff, was talking to reporters. “Well, since discovering the last three bodies, which makes a total of nine that we know of so far, Mayor Martin and I have made an appeal for all adjoining counties, including Omaha, to send all available help they can to Lincoln. It is our opinion that the car is still in this vicinity. We know he has been for the last three days, and we want to cover Lincoln block to block.”
* * *
Chapter Three
Caril
January 29 was a Wednesday, but the days had run together so much that it was hard for Caril to keep track. It was also hard to keep up with where she and Charlie were; somewhere in western Nebraska perhaps; or maybe they had crossed into Wyoming. She had just seen Charlie kill a man who was sleeping in his car. The car they were in, the Packard they had stolen from the rich man’s house, was having problems, and it was too easily recognized. Charlie wanted to switch vehicles, and this was how he always got the next one; he killed for it.
Now she sat in the back seat of this new car, the body of the man who had driven it slumped in the front passenger seat, his head blown open, and eight more bullet holes spread over his body. It was as if Charlie couldn’t get enough of shooting someone even after they were dead.
Caril had always been afraid of guns. Once, when Charlie took her out hunting at the farm of his friend, August Meyer, she had lifted the gun with difficulty, shakily pointing it at the bottles Charlie was using as targets. She took a shot, then gave it back. Now, over the past week, she had had her fill of gunfire as Charlie seemed to shoot everyone they encountered.
She didn’t dare run; where could she go? The badlands surrounding them stretched on forever. And it was cold… bitterly cold everywhere they went, especially at night. Even if she did somehow get away, Charlie had told her that his friends were holding her family hostage, and if she left him, he would find the nearest phone, call his friends, and tell them to kill her family. This was too much. She couldn’t continue watching him kill innocent people. She cried openly while he tried in vain to release the emergency brake.
She saw a motorist pulling up behind them. A man got out of the car and approached Charlie. He thought that Charlie owned the car, and was perhaps stranded. Charlie got out of the car and pointed his rifle at the man. Caril expected the loud bang to follow, but instead Charlie said, “Raise your hands. Help me release the emergency brake or I’ll kill you.”
Joseph Sprinkle was tall, stronger than Charlie, a former navy officer who had just been discharged a month before; but none of that would matter if Charlie shot him. He looked into the car and saw Caril, as well as the dead man on the floor.
Joseph knew that Charlie would kill him anyway, but he had no choice at the moment but to help, so he leaned into the car and began working at the emergency brake. Caril watched him, tears in her eyes, certain that Charlie would shoot him in the back at any moment. He was leaning up behind Joseph, watching him work, the gun held carelessly.
This was Joseph’s only chance. He spun around and grabbed the rifle, pointing the barrel away from him, trying to pull it out of Charlie’s grasp. Charlie kept hold of it with one hand while he hit Joseph with the other.
Caril, meanwhile, saw a patrol car stopped behind a truck that had halted nearby when the fight broke out. The office inside clearly didn’t see what was happening past the truck. Caril leapt from the car and ran for the officer.
At last Joseph got the rifle out of Charlie’s hands. Outmatched, and seeing Caril running away, Charlie ran for the Packard.
Caril screamed and waved her arms as she ran towards the officer. Deputy Sheriff Bill Romer finally saw her and let her in the passenger door. She was shrieking, tears pouring down her face.
Caril was crying hysterically and Officer Romer couldn’t understand what she was saying. He at last distinguished something about a murder, and heard her say the word that sent a chill down his spine, “Starkweather.” She pointed past the truck in front of them, and he looked around it to see the two men in the road. One of them had bright red hair and was running for the Packard, and Romer realized the identity of the girl in his car.
As Romer watched, the boy with the red hair leapt into the Packard and raced away. Romer didn’t follow. Instead, he picked up his radio. Robert Ainslie, chief of police in Douglas, Wyoming, heard the report over the receiver. Sheriff Earl Heflin was in the passenger seat next to him. Starkweather was driving in their direction, so Ainslie swerved his car into the middle of the highway to block Charlie’s escape. Charlie raced toward Ainslie and Heflin without slowing then swung his car around them. Ainslie pushed his glasses on tight, put the car into gear and took chase. By the time they reached Douglas, the speedometer had reached 115 miles per hour.
Residents scattered as the two cars sped down Main Street. The sheriff was firing at the Packard’s tires, but stopped when they entered traffic and Starkweather had to slow to get around the locals. Seeing his opportunity to catch up with the murderer, Ainslie rammed Charlie’s car. His front bumper hooked onto Charlie’s back bumper, but Charlie saw an opening in the traffic and sped away.
Outside of town the chase resumed at high speed. Sheriff Heflin took two shots. One hit the back bumper and the other passed through the rear window of the car. Charlie stopped suddenly. He opened his door and stumbled out, clutching at the side of his head. Blood was oozing out and he was crying.
Heflin told him to get on the ground. Charlie, still clutching his ear, ignored Heflin, continued forward, stumbling away from his car. Hefflin fired between Charlie’s legs and Charlie dropped like a rock onto his chest. When Heflin and Ainslie reached Charlie, they found that a piece of broken glass from the back window had nicked off part of his ear. It had caused some bleeding, but that was all.
When Caril heard the news of Charlie’s capture over the police radio, she relaxed as if a giant weight was lifted off her shoulders. She had been crying and rambling incoherently while the chase was in progress. Romer had tried to comfort her, tried to understand what she was saying, but she had been hysterical, and unable to form a thought into words.
Caril was unstrung, shivering and in tears, but she calmed down after she knew Charlie was in custody. Then she asked a question that both confused Deputy Romer and disturbed him. “Where are my parents? I’m afraid something might have happened to them.” She also asked for her sister. She wanted to make certain they were all okay.
Romer didn’t know how to answer that. Her mother, step-father and half-sister were dead, and it was generally believed she had assisted in their murders. He didn’t answer; that wasn’t his job. He took her to the jail in Casper where they arrived about the same time as Charlie. She wanted to avoid him, and the closer she got, the more she fidgeted.
By the time Caril was introduced to the sheriff’s wife, Hazel Heflin, Caril had again reached a point of hysteria. She was asking for her parents, wanting to know where they were, if they were safe. She asked about her baby sister; technically her half-sister, but Caril always referred to her as her baby sister. Mrs. Heflin didn’t know how to answer; neither did her husband, or any of the other men of the department. The more they dodged her questions, the more agitated Caril became, and at last they sedated her.
Caril was taken to the state hospital because she was 14, too young to be placed in a jail. As she was examined by psychiatrists and doctors, Mr. and Mrs. Heflin became increasingly convinced that she had been a hostage of, rather than a partner to, Charlie. When they found a note inside her jacket pocket which read, ‘Help. Police. Don’t ignore.’ they became even more certain that she had not been part of his murder spree.
No one told Caril she would face criminal charges, nor did she believe there was any reason that she would. She continued to ask about her family, and everyone still avoided telling her they were dead. Caril told Mrs. Heflin several times how excited she would be to see them again. No one had the heart to tell her what had happened, and so it was left for someone else to be the bearer of the bad news.
Elmer Scheele arrived to take both Charlie and Caril back to Lincoln to stand trial for murder. He did not immediately inform Caril of this fact. He had learned to be shrewd while working for the FBI during the high tide of J. Edgar Hoover’s reign. A top notch student, Scheele had joined the bureau directly out of school, moving to Washington, D.C. where he served with distinction. He returned to Nebraska when he was offered a job in the county attorney’s office. There, he had worked his way up to chief deputy, and was elected county attorney himself in 1954.
Now in Wyoming and far away from his office, Scheele sat and talked to Caril in his blunt, yet amiable demeanor. He was so genial that Caril believed he was on her side. She knew he was there to make Charlie accountable for what he had done, and he explained that charges could be brought against her if she didn’t cooperate. She did all she could to tell him every detail. She did not understand that what she was telling him and the other officials he brought would be used against her in a trial where she could receive the death penalty. Scheele merely asked her in his soft, benevolent voice what had happened. As she spoke, the court reporter, Audrey Wheeler, took her statement.
With Scheele were Edwin Coats, psychiatrist at the Casper hospital, Eugene Masters, assistant police chief, and Dale Fahrnbruch, the assistant district attorney from Nebraska. Caril had no attorney present on her behalf.
Elmer Scheele told Caril that she could return to Lincoln willingly, or she would be forced to by a court order. He never explained that she had the right to fight extradition, nor did he even tell her why she was being taken back to Lincoln. As far as Caril understood, she was being offered a ride back home where she would be reunited with her family. Caril’s understanding was that she could either go with the Nebraska police to help press charges against Charlie, or she could be forced to do the same thing. She told them she would go willingly. It was placed into the record that Caril was not going to fight extradition. Caril, meanwhile, did not even know what the word meant.
Caril was driven to Gering, Nebraska near the Wyoming border and placed in the prison to await transfer to the custody of the Lincoln police department. Caril continued to believe that she was in police custody because she was a minor, and she required adult supervision until she was reunited with her mother and step-father. Mrs. Warick, the wife of the Scottsbluff County sheriff, who did not know the information had been kept from Caril, simply blurted out that they were dead while she was with Caril. When Caril became extremely distraught and begged for more information, Mrs. Warick said nothing else.
Caril was always handed over to the wife of the sheriff whose custody she was under, so when Sheriff Karnopp from Lancaster County arrived, Caril was placed under the custody of his wife, Gertrude. A stern disciplinary woman, Gertrude Karnopp had already determined Caril was guilty. But this belief was tested when Caril’s first question to her was, “Are my folks dead?”
Taken aback, Gertrude didn’t answer. Then Caril persisted, “Who killed them?”
“Don’t you know, Caril?” Gertrude said.
Caril told her about hearing of their murders for the first time not long before Gertrude had arrived. When Gertrude confirmed the story, she gave Caril tissues to hold back the tears that were now streaming down the little girl’s cheeks. She cried for a long time while Mrs. Karnopp watched. When Caril was all out of tears, she began twisting the tissues into the shapes of tiny dolls.
* * *
John McArthur was led down the wide, sterile hallway of the mental health facility to Caril’s room. When Caril was brought back to Nebraska, she had neither the means to hire a lawyer herself, nor did she have parents who could do it for her. Caril’s biological father was alive, but on the day she was brought back from Wyoming he had been arrested himself for participating in a bar fight. The presiding judge, Harry Spencer, had assigned a lawyer to her. Spencer had chosen McArthur presumably because he knew that John would neither shrink from the responsibility, nor take advantage of it for his own gain. Many other lawyers would refuse the job out of fear of the public’s reaction, or accept because the notoriety of the case would help them promote their own practice.
His new client was being held in the mental health facility because she was too young to be put in a jail, and there was nowhere else to detain her. Juvenile hall had not yet been created.
The state, for that matter the whole country, had never experienced a capital case that involved a minor, and no one knew how to handle the issue of Caril’s representation. At first the Nebraska State Bar Association assigned an attorney named William Blue to appear on her behalf for her arraignment, then they assigned Edwin Belsheim, the head of Wesleyan University’s law school, to represent her until an official, practicing attorney could be appointed. Belsheim’s first course of action was to file for the case to be moved to juvenile court. Even though it was natural to handle such cases there, the State denied it, claiming that this was simply too serious of a charge to handle in juvenile court.
In federal law, every person had a right to an attorney upon arrest, but in the state of Nebraska, no such right existed until the accused reached the preliminary hearing. Six days after Caril was taken into custody, Judge Spencer finally ruled that “In the interests of justice, considering the age of the applicant and the circumstances surrounding the alleged offense, I find that her request should be granted and counsel appointed. I hereby appoint John McArthur as counsel for Caril Ann Fugate.”
John knew the case would be difficult on his family, but his wife Ruby had stood by him through thick and thin. She knew what she had signed up for when she married him, and she understood that his decisions sometimes made their family unpopular. This time, however, he had not been able to call home after being assigned the case to warn Ruby before death threats reached the house. His son James took the first call, and Ruby fielded most of the rest. Had the television or radio been on, they would have heard the news, but it was Saturday, the Sabbath for them because they were Seventh Day Adventists. As such, they did not have luxuries of any kind from sunset Friday night to sunset Saturday night. The television was not to be turned on all that day, except for a few select shows with which John would not be parted.
John had no opinion on the case before him. Elmer Scheele, the county attorney, who was a close friend of his, had filed charges of first-degree murder against the girl, and it seemed clear from the news reports that Caril had gone along at least somewhat willingly on a terrible murder spree. She had had several opportunities to get away, but at the same time, she was only 14 years old. John decided to leave judgment to the jury. He would hear her side of the story, and interpret it to the court as best he could, even if it seemed hopeless.
John’s first impression of Caril was how small she was. She stood less than five feet in height, and her build was tiny and frail. Though she was 14 years old, she looked more like she might be 12, or younger. Her hair was in a pony tail, and she wore the very plain clothes the hospital had provided her. She was fidgeting with some tissue dolls she had made.
“Hello Caril. I’m John,” he told her. John was a consummate gentleman; formal, yet warm to everyone he met. She greeted him with a smile and introduced herself. He sat down and asked her about what she liked to do during the long days. She told him how she busied herself with whatever she could find, and showed him the dolls she made. Once the pleasantries were done, he began talking about what had happened. She spoke freely about what Charlie had done, about how frightened she had been of him, and how dangerous he was.
When he told her that he was there to work on her case, Caril didn’t seem to understand why. She thought she had been helping the police to prosecute Charlie. John had read in the newspapers a detailed description of Charlie and Caril’s arrival in Lincoln. Caril sat in the backseat of the sheriff’s car smiling at reporters. She was acting the way a rescued girl would, not the way a captured killer would. The sheriff’s wife had rolled up the window and not allowed Caril to speak with reporters.
Now it was clear why. The reporters might have told her just how serious this was, and Caril would have been less forthcoming with her answers to the county attorney, who was using her own testimony as evidence against her. By keeping her in the dark, Elmer Scheele had managed to get Caril to make incriminating statements. With her family dead, no one could stand up for the girl except John.
But damage had already been done. The newspapers had already painted Charlie and Caril as the new Bonnie and Clyde. She was always named as Charlie’s girlfriend. No one mentioned the fact that Caril had broken up with Charlie the Sunday before the murders. The image of two young lovers on a rampage was more captivating, and that’s the image the media presented to the public before Caril could ever speak to a lawyer, before she even knew that anyone thought she was guilty.
John was dumbfounded. He had known Elmer Scheele for a long time. They had been friends, even though they were rivals. But this went beyond the common maneuvers of attorneys to find the best angle for their clients. Scheele had used deceit to push a small girl closer to the electric chair. He had not considered reasons or alternatives, and he had used methods which, though common for the time, were highly unethical.
John looked at that girl now. There was certainly strength inside her, though anxiety took control of her face once she knew that her life was once again on the line. She told John that the most important thing to her was that people know she was not guilty of murdering anyone. Going to prison or even dying was less important to her than the public understanding that she would never commit such horrible acts. John asked her if she was ready to give her statement to him, and she said she was. So he told her to tell her side of the story.
John McArthur tried to move Caril’s trial to juvenile court because of her age, but the crimes were so heinous, and so widely publicized that Judge Spencer would not allow the case to be moved out of adult court.
Pro Bono - The 18-Year Defense of Caril Ann Fugate can be purchased on Amazon, Kindle, or on any of the e-readers, such as Nook, Kobo, etc. You can also find the book, as well as additional information, at: www.probonobook.com. To see more by Jeff McArthur, visit: www.bandwagononline.com
About Jeff McArthur: He grew up in Lincoln, Nebraska where he began writing at a very young age. He became fascinated with movies as a teenager and began making them at 15, going on to New York University where he studied film, TV, and radio. In New York he worked with the comedy group The State, with PBS, and several others, before moving out to Los Angeles in 1995. He continued to work in the film industry for 15 years, working on various films including a few of his own, such as the documentary The Forgotten Grave, and the horror film Stolen Souls. Recently, he’s circled back around to book writing and has come out with his book Pro Bono – The 18-Year Defense of Caril Ann Fugate, about the famous case for which his grandfather was the attorney. He is currently writing The Relic Worlds sci-fi series, which can be seen at: www.relicworlds.com.
In a case rife with DNA and other physical evidence, not one shred of evidence linked 17-year-old Ryan Ferguson to the murder of Columbia (Mo.) Daily Tribune sports writer Kent Heitholt in 2001. Ferguson's conviction in 2005 proved only how far the police and prosecution would go to close Columbia's only unsolved murder. A Boone County (Mo.) Judge, at a three-day-evidentiary hearing in mid-July 2008, heard testimony of how the police and prosecution withheld exculpatory evidence from Ferguson's trial attorneys and manipulated and threatened witnesses who dared not support their trumped-up case against Ferguson.
Update: Ryan Ferguson Released From Prison A Week After His Sentence Was Vacated -- A three-judge panel of the Missouri Court of Appeals for the Western District ruled on November 5, 2013 to vacate Ryan Ferguson's 40-year sentence for the murder of Columbia Tribune sports columnist Kent Heitholt in 2001. "Under the facts and circumstances of this case, we conclude that Ferguson did not receive a fair trial," Judge Cynthia Martin wrote in summary of the court's decision. "His verdict is not worthy of confidence." In particular, the judge noted that the prosecution withheld information that supported Ferguson's innocence from his trial attorneys. The U.S. Supreme Court established in 1963 that withholding such exculpatory evidence from the defense was grounds for a new trial.
The court ordered Ferguson released within 15 days if the prosecutors do not file an appeal or notice of a retrial by then. On November 12, the Missouri Attorney General's Office announced that Ferguson would not face any further state charges nor would the state appeal the court's ruling to vacate his sentence. Later that day, Ryan Ferguson's nightmare was over as he walked out of the Boone County jail a free man. The next two questions will be how can the State of Missouri possibly justify keeping Chuck Erickson in prison for a crime he had no part in and who murdered Kent Heitholt?
Ferguson and Erickson were convicted in 2005.
On a warm Halloween night in 2001, Kent Heitholt, the sports editor of the Columbia Daily Tribune, worked into the night. He logged off his computer at 2:08 a.m., chatted with some colleagues, and made his way out of the Tribune building to his car in the newspaper's parking lot. There he had a conversation with colleague Michael Boyd that lasted until approximately 2:17 a.m. Minutes after that, Heitholt was brutally beaten, hit 11 times over the head with a metal object, and strangled to death with his own belt.
About five minutes later, Shawna Ornt, a cleaning lady on the night shift, exited the rear of the Tribune building and noticed something amiss near Heitholt's car. She went back inside to alert her supervisor, Jerry Trump. Together, they returned to the loading dock at the rear of the building overlooking the parking lot, and saw Heitholt's body lying on the ground in a pool of blood near his car. They spotted two males near Heitholt's car, one at the back of the car, with blond hair and wearing a short-sleeved t-shirt, and the other at the front of the car, with black hair and described as being six feet tall and weighing approximately 200 pounds. The male at the back of the car called out to Ornt and Trump, "get help, someone's hurt."
Ornt called 911 to raise the alarm at 2:26 a.m. Columbia police officers, detectives, and a K-9 tracking dog responded to the scene.
Despite the fact that there was a good deal of evidence at the murder scene – fingerprints, bloody footprints, a hair in the victim's hand, and DNA – the case baffled the police until they had occasion to interview 19-year-old Charles "Chuck" Erickson 860 days later, on March 10, 2004.
Erickson attended a New Year's Eve party in 2003, and while under the influence of alcohol, had been overheard saying he'd had a dream and feelings about possibly being involved in a murder, but had no memory whatsoever of actually being involved for two years, until this time. In February 2004, he mentioned being involved in the murder to a friend, Nick Gilpin, and a week later told another friend, Art Figueroa. Despite telling his friends about being involved in the murder, Erickson was not able to give any actual details, only vague generalizations, and was under the influence of alcohol each time he mentioned the murder. Another friend, Jonathan Alder, subsequently made a report to the police, which led to Erickson's interrogation.
Erickson, a junior high school classmate of Ryan Ferguson, and a known drug and alcohol abuser, was seen by his friends as a person prone to telling outrageous stories. His story on March 10, 2004 was no exception.
He was first interviewed by Columbia Police Det. John Short, and subsequently interrogated by him in a videotaped interview shortly thereafter. During the course of the 52-minute videotaped interview, Erickson "confessed" to the murder and robbery, and implicated Ryan Ferguson.
Although Erickson and Ferguson were only 17 years old at the time of Heitholt's death, Erickson stated that they were at a Columbia nightclub called By George, and had run out of money. He claimed they left the club before 1:30 a.m. when Ferguson suggested they go and rob someone for money. He claimed they went back to Ferguson's car parked nearby and that he grabbed a tire tool from the trunk.
He claimed they then walked to the Columbia Daily Tribune building and saw Heitholt in the parking lot. Erickson claimed he struck the victim over the head once, became sick and vomited at the scene. He claimed Ferguson then strangled the victim with his bare hands.
He claimed they then saw a cleaning lady and he called out to her. He claimed he sat down for a moment, and then they ran off towards the intersection of Providence and Ash, where within seconds of leaving the crime scene, he said they saw and spoke to a friend, Dallas Mallory, who was supposedly in his car with two female companions and stopped at a red light at the intersection. Erickson claimed he told Mallory what they had done. He claimed he washed the blood off his hands in a nearby creek, and they returned to Ferguson's car to dispose of the tire tool, before they went back to By George, arriving after 2:30 a.m.
Throughout the course of this interrogation with Det. Short, Erickson was confused and could not provide any accurate information relating to the murder. Short repeatedly asked questions specifically relating to the murder, and Erickson simply could not answer accurately.
Short realized this, and proceeded to spoon-feed specific details to Erickson. Whenever Erickson could not answer his questions accurately or in detail, Short provided the answers, and a confused, scared and easily manipulated Erickson simply went along with whatever the detective was saying.
One key element of Erickson's "confession" was the number of times he said he hit the victim. Short asked Erickson, "How many times did you think you hit him all together?" Erickson replied, "Just the once." Short, knowing the victim was hit 11 times, and knowing Erickson was wrong, asked, "Just the once? Well, the only problem I have with that is I know he was hit more than once," to which Erickson simply replied, "Yeah", and that, "I'm saying I just hit him once." Short continued, "You just hit him once? You didn't hit him more?" to which Erickson replied, "No", and again stated, "I didn't hit him more than once." Erickson never claimed Ferguson hit the victim.
Another key element of Erickson's story related to Ferguson's supposedly strangling Heitholt. Erickson had no problem in clearly saying that Ferguson strangled the victim, yet he had absolutely no idea how or what with. He first indicated that Ferguson had strangled the victim with his hands while the victim lay on his back on the ground. When later asked by Det. Short what Ferguson strangled the victim with, Erickson replied, "I think it was a shirt or something." Short, knowing Erickson was wrong again said, "Well, I know it wasn't a shirt." Erickson, clearly having no idea what to say, started guessing, "Maybe a bungee cord or something from his car." Unhappy with the answers given, Short again spoon-fed Erickson and decided to just tell him, "Well, we know for a fact that his [the victim's] belt was ripped off of his pants and he was strangled with his belt." Surprised to hear this, Erickson said, "Really?" and went on to say, "I don't remember that at all."
Short changed the subject, then later returned to the subject of the strangling and asked, "So it's possible Ryan could have strangled this guy with his belt, got the keys, and you not know about it?" Again confused, Erickson asked, "The guy – the man's belt?" to which Short replied, "Yeah". Still confused and surprised, Erickson continued, "His own belt?" Short answered, "Yes. Does that ring a bell?" to which Erickson replied, "Not at all." Short then asked, "But you saw Ryan strangle him though?" and now not as certain as he was earlier, Erickson replied, "I thought I did", and said, "I might not even know what I'm talking about now."
After this interrogation, detectives took Erickson on a videotaped drive around the crime scene and surrounding area. It was during this time that Erickson asked the detectives to show him where the murder had taken place. One would think that in confessing to a murder, one thing Erickson would be sure of was where it took place.
After their drive around, Erickson was again interrogated in a 22-minute videotaped interview by another detective, Jeff Nichols. It was during this interrogation that the detective threatened Erickson, saying that Ferguson would talk and blame Erickson for the whole event. Erickson replied, "I don't know. I mean, I don't even really know, it's just so foggy, like I could just be sitting here fabricating all of it and not know. Like, I don't know. I don't."
Erickson also said, "This is after reading the newspaper article in October and this is kind of what I put together with, I mean I don't know if I'm just flipping out or whatever, but I mean this is kind of what I put together with what could have happened", and, "I'm just presuming what happened. I'm making assumptions based on what I read in the newspaper."
Det. Nichols told Erickson that he had provided specifics that no one else could know. Erickson asked, "Like what?" and the detective said the cleaning lady, which Erickson said he read in the newspaper.
At this point, Nichols became aggressive and said, "I'm not going to sit here and listen to this kind of gibberish ok? I'm not going to waste my time doing that." He raised his voice and pointed his finger at Erickson, saying "I'm gonna start talking and you're gonna start listening." He again threatened Erickson and told him that Ferguson would talk and blame him, and "It's you that is on this chopping block." (Click here to view a video clip of this interview).
Erickson became scared and was still confused. Det. Nichols moved closer to Erickson and continued pointing his finger at him aggressively and said, "I don't want to hear 'all of a sudden I just think I may have fabricated all of this.'" The detective then went back to the beginning of his story, probing for more details that Erickson simply didn't know, so the detective told the story himself, and Erickson went along with it, too scared to say otherwise.
Despite the gaping holes in Erickson's story, the fact that he was confused, knew very little details of the crime, and said on numerous occasions that he didn't know what he was talking about and was making it all up, the police arrested and charged him with second-degree murder and robbery.
That same day, March 10, 2004, 19-year-old Ferguson was arrested at 12:35 p.m. in Kansas City. He was transported to Columbia and interrogated for nine hours. Ferguson repeatedly pleaded his innocence. Knowing he had nothing to do with Heitholt's murder, he felt he did not need an attorney during the interrogation. Detectives tried numerous tactics to obtain a confession, but Ferguson remained steadfast in maintaining his innocence.
Ferguson maintained that he and Erickson went to By George on that night, arriving around 11:30 p.m. He stated they left at 1:15 a.m., before it closed at 1:30 a.m. He made his first phone call to his sister, Kelly Ferguson, at 1:18 a.m. He then drove to Erickson's home to drop him off, before returning home himself, at around 1:40 a.m. He then made five telephone calls, and received another three calls between 1:41 a.m. and 2:10 a.m., and talked continuously during that time. He maintains that after this time, he went to bed.
Nevertheless, Ferguson was arrested and charged with first-degree murder and robbery. Astoundingly, and despite the fact that he had no criminal record, his bail was set at $20 million, the highest bail ever set in the history of the United States for one count of murder.
Columbia detectives were not able to link any of the physical evidence at the crime scene to either Ferguson or Erickson. There were bloody footprints leading away from the scene. A match to these was never found. There was a hair in the victim's hand, and fingerprints at the scene, which did not belong to the victim. The Federal Bureau of Investigation Laboratory tested the mitochondrial DNA found at the scene, but was not able to link this evidence to Ferguson or Erickson.
Police searched Erickson's home on March 10, 2004, and performed luminol tests (a special liquid chemical that illuminates traces of blood, even after many years, or when cleaned and invisible to the human eye) but there was no evidence found to connect Erickson to the crime. Ferguson's car was similarly luminol tested, and not one trace of blood was found. Ferguson's tire tool was tested, and it was determined that it had no connection to the crime. How is it possible for these two to have committed such a horrific and messy crime, bashed a man who was six-foot three-inches tall and weighed 315 pounds, with a metal object 11 times, which produced pools of blood, yet not get any blood on their clothes, or in the car they drove that night?
Shawna Ornt, the only person able to provide a detailed description of the men she saw, provided information to Det. Nichols in November 2001 to produce a composite drawing of the man she saw behind Heitholt's car. She described him as being in his early 20's, six feet tall, around 200 pounds and with blond hair. Erickson and Ferguson were barely 17 years old at the time, and between five-foot five inches and five-foot six inches tall, and weighed between 140 and 150 pounds. Det. Liebhart stated that Jerry Trump "could not provide a detailed description of either of the individuals."
Strangely, Ornt was asked to provide information for another composite drawing of the same man on March 25, 2003, some 17 months later. It begs belief to think that she could provide enough information to produce a second composite drawing 17 months after she saw a man in the early hours of the morning, less than 25 feet away from where she was standing, for only a matter of seconds. Nevertheless, neither of the composite drawings based on Ornt's descriptions bears any resemblance to Erickson or Ferguson.
The K-9 tracking dog followed the scent of the killer/s from the crime scene south down Fourth Street, crossed Broadway, behind a diner, and continued south to Locust Street, where the dog then headed east along Locust Street, and south down Fifth Street to the University of Missouri and McReynolds Hall, where the scent was lost.
Heitholt's colleague, Michael Boyd, was the last known person to see the victim alive. He had a conversation with Heitholt in the Tribune parking lot just minutes before his death. A few hours after the murder, Boyd was questioned via telephone that morning and again later that evening in person. On that day, he told two very different stories. In one story, he stated Heitholt left the Tribune building before him, and once outside, they stood by Heitholt's car for a few minutes, and had a conversation about a stray cat that Heitholt frequently fed. He then went back to his car and drove off.
In another story, he stated that he left the Tribune building before Heitholt and was in his vehicle and adjusting the radio for a couple of minutes, before he saw Heitholt exiting the building and walking to his car. He then backed out of his parking spot and drove through the parking lot, stopping at Heitholt's car. He rolled down his window and had a conversation with Heitholt. They discussed a possible problem with Boyd's car, the stray cat, and some work-related matters, before he drove off.
Despite the fact that Boyd told two different stories that day, and was the last known person to see the victim alive, he was never investigated. He would alter his story three more times, in February 2005, July 2005 and June 2006, with changes ranging from which parking lot he was in, and even the color and model of the vehicle he was driving that night.
In October 2004, some seven months after the arrests, easily manipulated Erickson was offered a deal to plead guilty and provide testimony to convict Ferguson. In return, his sentence would be drastically reduced from life to 25 years, with a possibility of parole after 12 years. As a result of his deal, Erickson's story changed significantly.
Erickson now "remembered" that he hit the victim 11 times. He now "remembered" exactly how Ferguson supposedly strangled the victim. He also now mentions for the first time seeing Boyd, a "white man," talking to the victim before he attacked him, yet Boyd is African-American. The only way Erickson knew about Boyd was from reading the police reports, and he believed Boyd was white because the police had incorrectly designated Boyd as a "white man" in their reports.
Copy of portion of the police report stating Boyd was white. Click here to view full page of report.
Erickson also completely changed his story about the way they left the crime scene. He claimed they did indeed head in the same direction as the K-9 tracking dog, although unlike the dog, they headed back to By George. He stated they went in the complete opposite direction of his original story.
There are huge inconsistencies in his story. Erickson stated they went back to the club after the murder, thereby arriving after 2:30 a.m. The club closed at 1:30 a.m. There has never been any evidence to support that the club was open after 1:30 a.m.
Erickson claimed the motive was robbery and that they needed more money for drinks, yet the victim's wallet, which was in a console inside his car, was not taken. The only missing items were Heitholt's watch, a portion of his belt, and the keys to his car.
Erickson claimed they couldn't leave the club because there were police in the parking lot, yet there is no record of any police activity at the club, and if the club were open after 1:30 a.m., as Erickson stated, the club likely would have been given a citation.
Erickson claimed they drove past the crime scene after leaving the club around 4 a.m. and saw the victim being placed in a body bag, yet it is impossible to see the crime scene from the street, and the body was not placed in a body bag until 5:20 a.m.
Erickson claimed Ryan's father, Bill Ferguson, found a wallet, which Erickson alleged was the victim's, yet the victim's wallet was never taken. Erickson claimed he vomited at the scene, yet no vomit was found.
Erickson initially claimed Ferguson strangled the victim on his back, yet the victim was strangled on his stomach. Erickson claimed they were chased from the scene, yet no one chased the perpetrators.
Erickson claimed he beat the victim with a tire tool, yet not one of the 11 blows to the head resulted in a skull fracture. It is widely believed that had a tire tool indeed been the weapon, at least one of the blows would have fractured the victim’s skull. It is therefore believed that the weapon was not a tire tool as claimed by Erickson.
Erickson claimed they saw Dallas Mallory in his car with two female companions stopped at a red light at the intersection of Providence and Ash, yet the Missouri Department of Transportation stated that there was only a flashing yellow light at that time. Regardless, Mallory did not hold a valid driver's license, and did not own a car. Was he driving an imaginary car without a driver's license? If what Erickson says were true, then why were the two female companions not identified and interviewed?
On the day of the arrests, Mallory was interviewed by a group of detectives. He denied seeing or speaking to Erickson or Ferguson on the night of the murder. The detectives would not accept his statement, so they yelled obscenities at him, tried to intimidate him, and even threatened to charge him with the murder.
The detectives told Mallory that Erickson claimed he saw him on the night of the murder, and that Mallory had been wearing a police uniform as a Halloween costume. Upon hearing this information, Mallory realized he must have seen Erickson that night, however was adamant it was not in the early hours of the morning after the murder, as he was not in the vicinity of the crime scene at that time.
It was later established that both Mallory and Erickson were at a Halloween party hours before the murder occurred, and were photographed together, with Mallory wearing the police uniform costume. This is how Erickson knew Mallory was wearing a police uniform that night, not because they spoke after the murder. That simply did not happen. The only time that Mallory mentioned seeing Erickson on the morning of the murder was under severe police duress. Since that time, Mallory has maintained that he did not see or talk with Erickson or Ferguson on the morning of the murder. On Dec. 1, 2004, Mallory provided an affidavit in such terms.
On Jan. 4, 2005, the prosecutor interviewed Mallory. It was during this interview that a subsequent paragraph was added to the follow-up police report, for the first time claiming that Mallory saw Ferguson that night, as this was previously omitted in the original report. Mallory subsequently read this report, and explained that the police falsified the portion of the report pertaining to his supposedly seeing Ferguson on that night, when in fact he did not.
Add these to the previously mentioned inconsistencies, and one wonders how any of this was believed. Despite all of this, Ferguson stood trial in October 2005 at the Boone County Courthouse in Columbia, Mo., presided over by Judge Ellen Roper. In his opening statement, Prosecutor Kevin Crane told the jury there was no physical evidence to connect Ferguson to the crime. The prosecution only had the concocted testimony of Erickson and Ornt's supervisor, Jerry Trump, to pin the crime on Ferguson.
During the course of the five-day trial, Erickson testified against Ferguson, and this time, during questioning by the prosecution, he was confident, concise and much clearer in the details than before. He admitted on cross-examination having rehearsed his testimony over the course of several weeks and role-played the assault with the prosecutor and investigators from the prosecutor's office. If he knew the details as clearly as he claimed, why would he need to rehearse?
On cross-examination by the defense, Erickson also admitted that he had been guessing in the videotaped interrogations on the day of his arrest, and that he was confused and didn't know many details of the crime at that time, and was making presumptions based on the newspaper articles. He further admitted that during the course of the interrogation on March 10, 2004, he was trying to tell detectives that he didn't know if he committed the crime. He also testified that he had found many errors in the police reports.
During cross-examination, he was unable to clearly explain his lack of memory of the crime at the time of his arrest and was often vague and had difficulty in explaining his answers to the defense's questioning, prompting the defense to ask questions more than once. He testified that he was currently on psychotropic medication, which affects the central nervous system and alters brain function, which results in changes to a person's mood, cognition, perception and behavior, and that his jail psychiatric records over a year-and-a-half, brought into evidence during the trial by the defense, showed no problems with his memory and that his memory was intact.
He further admitted to having undergone testing by psychologists at the University of Missouri weeks after the murder, including memory testing, but made no mention of the crime. He admitted to having graduated from a substance abuse treatment program in October 2001, despite his continuing use of marijuana during the course of the program, and his use of a detoxifying substance to clear the body of the traces of marijuana to pass drug testing. He also testified that he had been under the influence of alcohol and cocaine when he first told friends of his dreams about the murder.
Kent Heitholt's wife, Deborah Evangelista, was called by the prosecution, and testified that Heitholt often worked late into the night at the Tribune, and that the day he was murdered was his fifth year anniversary of his employment at the Tribune. During Evangelista's testimony, the prosecution tendered photographs of Heitholt, including a photograph taken on Oct. 31, 2001 some hours before his death. Evangelista identified Heitholt's watch and belt, items he was wearing in the photograph taken on the day of his murder, which were taken from the crime scene.
The prosecution then called William Hawes, an investigator with the Boone County prosecutor's office. Hawes testified that on Aug. 2, 2005, he was instructed by the prosecutor to walk the route Erickson described that he and Ferguson took on the night of the murder from By George nightclub to the Tribune building and back to the club after the murder. Hawes testified that this took him 17 minutes and 1 second.
On cross-examination, the defense pointed out that while Hawes walked this route from the Tribune building back to the By George nightclub, he failed to allow for the time Erickson claimed he took washing the blood off his hands in a creek, going back to Ferguson's car to dispose of the tire tool, and having the conversation with Dallas Mallory. Nevertheless, it was agreed by Hawes that the earliest possible time Erickson and Ferguson could have returned to the club would have been 2:26 a.m., almost an hour after the normal closing time.
The prosecution called Shawna Ornt's supervisor, Jerry Trump, a registered sex offender, who earlier had told police he could not provide a detailed description of the man he saw in the Tribune parking lot. Trump now identified Ferguson as that man. They also called Ornt, the person who provided the composite drawings, who did not identify Ferguson as the person she saw.
Kent Heitholt's colleague, Robert Thompson, a sports writer for the Tribune, testified for the prosecution that he worked with Heitholt on the night of the murder. He testified that Heitholt left the office at his usual time after 2 a.m. with colleague Michael Boyd, and that 15 to 20 minutes later, Ornt went to the sports department in the Tribune building and asked, "Where's Kent?" Thompson testified that Trump then arrived at the sports department and stated there were two people by Heitholt's car and that he thought Heitholt had been hurt. Thompson testified that he ran out to Heitholt's car and saw him laying half underneath his car and slumped on the left side of his stomach, face down. He noticed there was blood "everywhere", so he shook Heitholt in an attempt to wake him up.
Thompson testified that he then noticed that Ornt and Trump had returned to the rear dock of the Tribune building, so he called out to them that Heitholt was hurt badly and they should call 911. Thompson was unaware that 911 had already been called. His co-worker, Russ Baer, then came out to Heitholt's car, and together they checked for a pulse, but did not find one, so they rolled him over.
Thompson further testified that police and paramedics soon arrived at the scene, and the paramedics cut Heitholt's shirt open and tried to revive him, using cardio-pulmonary resuscitation (CPR) and a defibrillator machine, but to no avail. He further testified that police then sealed off the crime scene and the entire Tribune parking lot and began its investigation.
The prosecution then called Det. Jeff Nichols of the Columbia Police Department Major Crimes Division. He testified that he arrived at the crime scene at around 3 a.m. on the morning of the murder. He said he observed two pools of blood, one on the pavement near the rear wheel of Heitholt's vehicle, and another right next to the victim's head, and that he saw a belt buckle and a portion of a belt about a foot from the victim's head.
Det. Nichols identified the pants, t-shirt and sweater worn by Heitholt at the time of his death, and testified that they were all covered in blood. He said that there were blood spatters on the inside of the driver's door window and on the floor of Heitholt's vehicle. He further stated that there was blood on the wheel of the vehicle, which was transferred from Heitholt's bloody head hitting the wheel.
Nichols testified that on Nov. 3, 2001, he performed luminol tests on the sidewalks leading from the Tribune building south on Fourth, across Walnut and ending at Broadway. He testified that there were two different types of bloody shoe prints found, and he believed the shoe prints showed that two people were initially walking away from the scene, and then they started running. He testified that this luminol testing was done to check that the K-9 tracking dog was going in the right direction on the night of the murder.
Nichols also testified that he processed Heitholt's vehicle and obtained fingerprints from the interior and exterior of the vehicle, and was unable to obtain the source of these fingerprints, and they were therefore unknown. He further testified that he found the victim's wallet inside a console in the vehicle.
Nichols said that he attended Heitholt's autopsy, performed by Dr. Edward Adelstein at the Medical Examiner's Office, and that he had placed bags on the victim's hands at the crime scene to preserve evidence. He said he collected a hair sample from the victim's hands during the autopsy.
On cross-examination, Nichols was questioned about the luminol tests performed on Nov. 3, 2001, admitting he stopped the testing near Walnut and Fourth, to proceed to McDavid Hall and Flat Branch Park to perform luminol tests in those locations. This was the route the K-9 tracking dog and Officer Todd Alber had followed. He testified that no blood was found at either of these locations, so they headed back to Walnut and Fourth and proceeded towards Broadway.
The defense asked Nichols if it were possible to see the victim or his vehicle on the night of the murder from Providence Road, as Erickson said he had. Nichols confirmed it was not.
The defense then extensively questioned Nichols about Erickson's interrogations on the day of his arrest. Nichols admitted that during the videotaped drive around the crime scene, Erickson didn't appear to know where the crime took place. He said, "He [Erickson] didn't seem to know specifically where it occurred, and so I did show him. I did tell him. I pointed out the specific location", and, "He [Erickson] was having a hard time recalling exactly where this location was. And he was having a hard time or seemed to be having a hard time figuring out exactly what his route of travel was from the parking lot."
Nichols further admitted that during the third videotaped interrogation on the day of the arrest, Erickson, "seemed like he had a hard time recalling details." The defense asked Nichols if he was really trying to find the truth from Erickson by not allowing him to say he was confused and unsure. Nichols evaded that question by giving general comments about interrogation tactics.
The prosecution then called Dawn Kliethermes, a criminalist and latent print examiner with the Missouri State Highway Patrol Crime Laboratory. Kliethermes testified that there was an unknown fingerprint found on the rear inside passenger window of Heitholt's vehicle, three unknown fingerprints found on the driver's side of the vehicle, one unknown fingerprint on the rear-view mirror of the vehicle, and one unknown fingerprint on papers on the driver's seat of the vehicle.
On cross-examination, the defense pointed out that this amounted to six unknown fingerprints in this case, and questioned Kliethermes whether these fingerprints matched Ferguson, Erickson, Heitholt or Heitholt's daughter, Kali, to which she testified that they did not.
Cary Maloney, the DNA technical leader of the Missouri State Highway Patrol Crime Laboratory, was called by the prosecution and testified that he performed DNA tests on Heitholt's shoes, t-shirt, pants and sweater worn at the time of his death, and all of the DNA on these items belonged to Heitholt. On cross-examination, Maloney admitted that none of the DNA tested in this case belonged to Erickson or Ferguson.
The prosecution's final witness was Dr. Edward Adelstein, deputy medical examiner. He testified that there were abrasions on the right side of Heitholt's cheek, bruising and hemorrhaging to his eyes, bleeding under the skin, multiple injuries to the tops of both hands, which were possible self-defense wounds, and abrasions and hemorrhages to the neck. He also testified that Heitholt was struck 11 times in the head by a dense object.
Dr. Adelstein further testified that Heitholt's hyoid bone (a bone in the neck which separates fluid and air) had been broken, and that it would take a great deal of pressure to break the hyoid bone. He testified that Heitholt was strangled from behind, and that the cause of death was asphyxia due to compression of the neck caused by strangulation.
On cross-examination, Dr. Adelstein testified that the lacerations to Heitholt's face were likely to have been caused by a different object to the lacerations on his head, or that it was possible that it was the same object, but that two different ends of that object were used. He also testified that the strikes to the head could have been caused by a variety of instruments, and that it was possible that there were two different instruments used in the beating. The defense questioned whether these types of injuries were consistent with street robberies, and Dr. Adelstein responded that these types of injuries usually occurred during a serious fight.
The prosecutor failed to provide the defense with details of exculpatory evidence that two of his investigators, William Hawes and Ben White, had obtained from two witnesses, Melissa Griggs and Kristopher Canada, who were questioned before the trial. This is a violation of the Brady Rule, a federal law requiring prosecutors to turn over to the defense any information or evidence favorable to the defendant uncovered during the crime's investigation. The witnesses were an employee and a patron of By George. They told investigators that the club had indeed closed at 1:30 a.m. The judge acknowledged this violation, noting this was improper conduct and that all information should be passed onto the defense, but the jury was never informed.
The prosecution did not call their lead detective, Det. John Short, to give evidence. It is rare in criminal trials that the prosecution does not call the lead detective to give evidence. They did not call Dallas Mallory, the only person who could have corroborated Erickson's story, because he had provided the defense with a sworn affidavit stating he did not see or talk with Ferguson during the early morning hours of the murder.
In his closing argument, the prosecutor deceived the jury about the hair in the victim's hand. In Det. Nichols's deposition, he stated that a hair was adhered to the bloody fingers of the victim, and that he had taken a photograph of this hair. This hair is a crucial piece of exculpatory evidence in this case, and is believed to belong to the killer, yet a match to this hair was never found. In his closing argument, the prosecutor told the jury there was no hair found in the victim's hand. The prosecutor deceiving the jury about this crucial piece of evidence is a form of prosecutorial misconduct.
Ferguson's defense team, which consisted of lead attorney Charles Rogers, Kathryn Benson and Jeremy Weis, called Ryan Ferguson's sister, Kelly Ferguson, who testified that, together with her friend Christine Lo who knew the bouncer at By George, she had arranged for Erickson and Ferguson to be allowed to enter the club on the night of the murder, despite them being underage at the time. She testified that they met Erickson and Ferguson at the front door of the club and they entered together, and that they split up once inside, and she only saw her brother in the club once after that time. She further testified that the lights in the club came on between 1:15 a.m. and 1:30 a.m., and that the staff began to push people out the door during that time, as it was closing time.
The defense then called Ronald Singer, a forensic scientist and crime laboratory director of the Tarrant County, Tex., Medical Examiner's Office Crime Laboratory. After receiving reports from the defense, as well as photographs of the crime scene and Heitholt's vehicle, Singer examined the blood spatter patterns and evidence. He testified that he was able to provide a general reconstruction of what took place in the attack, and that the blood spatter patterns were consistent with a beating.
Singer testified that there was blood on the inside of the driver's door of Heitholt's vehicle, which indicates that the attack began with the driver's door open, and with Heitholt standing upright near the door. Heitholt then moved and was attacked near the driver's side rear tire of his vehicle. Singer testified that at one point, Heitholt's head was at a similar level to the hubcap, and his head came into contact with the hubcap, and that he was then struck while his head was on the ground. He also testified that the blood spatter pattern showed cast-off blood, which was blood from a blunt object being sprayed off the object while the object was in motion, presumably due to the beating.
The defense called Jenny Smith, a forensic chemist at the Missouri State Highway Patrol Crime Laboratory. She testified that she tested the hair found in Heitholt's hand, plus samples belonging to Heitholt from his hair brush, and samples from Erickson and Ferguson. She concluded that the hair found in Heitholt's hand was not consistent with either Heitholt, Erickson or Ferguson. Smith further testified that she sent the samples to the FBI Lab in Quantico, Va., for mitochondrial DNA testing.
The defense then called Karen Lanning, a physical scientist in the Trace Evidence Unit of the FBI Lab in Quantico. She testified that she conducted tests of the hair found in Heitholt's hand, and compared it to hair samples from Heitholt's hair brush, and samples from Erickson and Ferguson, and concluded that the hair found in Heitholt's hand did not belong to Heitholt, Erickson or Ferguson.
Catherine Theisen, a forensic DNA examiner in the Mitochondrial DNA Unit of the FBI Laboratory in Quantico, was then called by the defense. She testified that she conducted mitochondrial DNA testing of the hair found in Heitholt's hand, and compared it with buccal swabs (swabs taken from inside the mouth) of DNA from Erickson and Ferguson, and a blood stain from Heitholt. She testified that she extracted mitochondrial DNA from each of these samples, and confirmed that the hair found in Heitholt's hand did not match Heitholt, Erickson or Ferguson.
The defense called Holly Admire, a high school friend of Ferguson and Erickson. She testified that she spoke to Ferguson on her cell phone in the early hours of the morning on Nov. 1, 2001. The defense submitted her cell phone records as evidence, which showed telephone calls between Admire and Ferguson after 1:30 a.m. on the night of the murder.
The defense then called Melissa Griggs, an associate of Ferguson and Erickson. She testified that she attended By George on the night of the murder, and recalled seeing Erickson and Ferguson at the club. She further testified that the club closed at 1:30 a.m. that night.
The defense called Kristopher Canada, a barman at By George. He testified that he worked as a barman at the club on the night of the murder, and that the lights of the club came on between 1:10 a.m. and 1:15 a.m. that night, and that at that time the bouncers told everyone to leave, and the doors were locked and the club closed at 1:30 a.m.
Both Griggs and Canada were located by the defense team on day three of the trial. The defense discovered that they had both been contacted by investigators from the prosecutor's office prior to the trial. Griggs told the prosecutor’s investigator that the club had closed at 1:30 am that night. Canada told them that he had worked at the club that night, and also confirmed that the club closed at 1:30 a.m. This information was not passed onto the defense.
The defense subpoenaed Columbia Police Officer Todd Alber, who was the K-9 dog tracker who accompanied the dog following the trail of the killer/s on the night of the murder. Officer Alber did not receive the subpoena before he went on vacation, and therefore did not testify. As a substitute for Officer Alber, the defense requested to call Officers Rugstadt or Hatton, who followed Officer Alber and the dog that night in order to provide security for them. The court would not allow these witnesses to be called, due to the lateness of them being identified. This was prejudicial to the defense, as they were unable to inform the jury of the route the K-9 tracking dog took, to confirm that it was the opposite direction of what Erickson claimed during his interrogation on the day of his arrest.
Ferguson took the stand in his own defense and testified that he had no involvement in the crime. He was asked by the defense whether he went to the Tribune building or parking lot and whether he saw Heitholt anywhere that night, to which he replied, "No." He was also asked by the defense whether he participated in the murder, to which he again replied, "No." Using a map, he also pointed out to the court where he had parked his car near the club that night, and the route he drove after leaving the club to Erickson's home, before returning home himself.
In his cross-examination, the prosecutor tried to intimidate and agitate Ferguson, but he remained calm and answered each question clearly and respectfully. He stated that he never thought he would be arrested for a crime he didn't commit.
The defense called Professor Elizabeth Loftus, a memory expert and author of many publications on false memories. She testified that it was her opinion, after 30 years of studying memories and based on her vast research and experience, that Erickson's was a false confession. She was of the opinion that a person cannot forget something as significant as committing a murder, and not have any recollection of doing so the next day, the next week or the next two years, and then suddenly regain a memory of it at a later time.
The defense also submitted Ferguson's cell phone billing records as evidence, which provided details of the time and duration of the calls made and received by Ferguson on the night of the murder, between 1:41 a.m. and 2:10 a.m., and showed that he talked continuously during that time. These calls included five outgoing calls made by Ferguson to various friends, lasting a combined duration of 10 minutes; and three incoming calls received by Ferguson lasting a combined duration of 15 minutes. Ferguson testified that these calls were made and received after he returned home, while he sat on the curb outside his home.
Due to the lapse of time involved, the cell phone company's records no longer provided details regarding which cell-phone towers transmitted the calls Ferguson made. Thus the defense could not establish that the calls were made from Ferguson's home as he alleged. These calls, if the defense could have established that Ferguson had made them from his home, would have excluded Ferguson as the murderer.
The defense further highlighted the lack of physical evidence in this case, and the fact that it was never determined who the DNA, fingerprints, footprints and hair in the victim's hand belonged to.
Ferguson's defense team made fundamental errors in its handling of the case and the running of the trial. The defense failed to interview Dallas Mallory and Michael Boyd, and did not call these critical witnesses to give evidence during the trial. Neither did they call rebuttal witnesses to show that Erickson was untrustworthy, a drug and alcohol abuser, and prone to exaggeration.
They similarly failed to call character witnesses to attest to Ferguson's upbringing, good nature, and lack of prior criminal or violent behavior. Potential character witnesses could have testified as to Ferguson graduating high school early, and obtaining the rank of Eagle Scout, the highest ranking in the Boy Scouts of America. Without these witnesses, the jury was given no insight into Ferguson's character and personality, to demonstrate that he was not the cold-blooded killer the prosecution made him out to be.
The defense failed to locate further witnesses to confirm that By George had closed at 1:30 a.m. that night. It also failed to obtain official records showing that the club had never received any citations for being open after 1:30 a.m. The closing time of the club is one of the major inconsistencies in Erickson's story. Therefore, the defense's failure to locate witnesses to attest to the club's closing time and thereby refute Erickson's story was severely prejudicial to their client's case.
The defense failed to enlist an expert witness to examine the victim's injuries, and attempt to discredit Erickson's story. This denied the defense the potential to further question Erickson's story, challenge his credibility, and highlight the countless inconsistencies in his testimony and apparent recollection of the murder.
The defense failed to produce an adequate map of the crime scene and surrounding area, and failed to label correctly and use the map it did have. The defense's lack of preparation with regards to the map caused confusion when witnesses were unable to accurately identify various areas on the map and show their whereabouts and the routes taken on the night of the murder.
In its closing argument, the defense focused on there being no physical evidence linking Erickson or Ferguson to the crime, that Trump's testimony was unreliable, and that Erickson's story was inconsistent, continually changing, and unreliable, and that there was no-one able to confirm Erickson's story. They also highlighted the major points of the testimony of the defense witnesses, and Ferguson's cell phone calls on the night of the murder.
However, the defense failed to list a number of the obvious inconsistencies in Erickson's story to highlight to the jury, including the fact that there was no vomit found at the crime scene, that Dallas Mallory vehemently denies that he saw Erickson and Ferguson that morning, that Erickson did not know how Ferguson supposedly strangled the victim, how many times he hit the victim, the direction they left from the crime scene, and that they supposedly drove past the crime scene and saw the victim's body being placed in a body bag, which actually happened over an hour after Erickson claimed.
Given that Erickson's story was the majority of the prosecution's case against Ferguson, and that his story is inconsistent and unreliable, thereby making the majority of the prosecution's case unreliable, tearing apart Erickson's testimony should have been the primary focus of the closing argument. Destroy Erickson's credibility, destroy the case against Ferguson. The defense should have also demonstrated that Trump's original statements to the police proved he could not identify Heitholt's assailants. If the defense could have discredited Erickson and Trump, the government's case against Ferguson would have dissolved.
The defense made blatantly unprofessional errors during the trial by repeatedly becoming confused and mixed-up with Erickson and Ferguson's names, which was not only embarrassing, but potentially confusing to the jury.
What must have made this case so difficult for the jury was the fact that Erickson had already admitted to being involved in Heitholt's murder. The jury knew that Erickson would be spending the next 12 to 25 years of his life in prison as a result. This is powerful information for any juror to digest. Who could imagine that Erickson was not involved in the murder if he had already admitted to it? This type of knowledge apparently allowed the jury not to be bothered by the lack of evidence or the countless inconsistencies in this case. They were not bothered by the fact that this case was investigated by detectives who were disinterested in the truth, or that the case relied on the word of Erickson, an unreliable witness given the major inconsistencies and changes in his story over the one-and-a-half year period between the arrests and the trial, and the word of a registered sex offender who previously could not provide a detailed description, yet four years later identified Ferguson as the person he saw. After only five hours of deliberation, the jury returned a guilty verdict.
Five members of the jury were later interviewed by "48 Hours Mystery" and several stated they had already made up their minds about Ferguson's guilt before the defense began its case. This is tantamount to jury misconduct.
In December 2005, Ryan Ferguson was sentenced to 40 years in prison – 30 for the murder and 10 for the robbery. He will be eligible for parole in 2040.
The murder of Kent Heitholt was hideous and brutal. It took the life of an innocent man. The conviction of Ryan Ferguson makes him the crime's second innocent victim. In the prosecution and police's zeal to close Columbia's only unsolved murder, Ryan Ferguson was the scapegoat for a crime he had nothing to do with, where not one shred of evidence implicated him. All the prosecution had was the fabricated testimony of a delusional, confused teenager and the specious, concocted testimony of a sexual offender.
Ryan Ferguson's court-appointed appeal attorney, Ellen Flottman, appealed his conviction in late 2006 to the Missouri Western District Court of Appeals. That court denied his appeal on June 26, 2007, upholding his conviction.
Ferguson's new appeal attorney, Valerie Leftwich, filed a Rule 29.15 Motion for Appeal in the Boone County Court on March 3, 2008, citing various grounds, including Brady violations and ineffective assistance of counsel.
As stated in the Movant's (Ferguson's) Proposed Findings of Fact, Conclusions of Law, Order and Judgment, the test to determine whether counsel were ineffective is "whether counsel failed to exercise the customary skill and diligence that reasonably competent counsel would have exercised under similar circumstances, and whether Ryan was prejudiced as a result, that is, whether there is a reasonable probability the outcome would have been different."
An evidentiary hearing was held in relation to this appeal on 16, 17 and 18 July 2008 at the Boone County Courthouse, presided over by Judge Jodie Asel.
Ferguson claimed two distinct Brady violations, relating to Ronald Hudson and Shawna Ornt. Both testified at the evidentiary hearing in relation to information they provided to the police investigating Heitholt's murder and/or Prosecutor Crane, which evidence was not disclosed to the defense prior to Ferguson's trial.
Ronald Hudson's attorney, Rob Fleming, testified that Columbia Detective Bryan Liebhart interviewed Hudson in his presence on Nov. 22, 2002 at the Boone County Jail. Hudson had previously informed Fleming that he had information in relation to Heitholt's murder and wanted to exchange this information as part of a plea agreement for a pending robbery charge.
Both Fleming and Hudson testified that Hudson had told Detective Liebhart that in February or March of 2002 Hudson was standing outside Labor Ready in Columbia and was talking with an African-American man named Clarence Mabon. Mabon told Hudson that he had been involved in "the incident with the newspaper reporter" and that the sketch the police were showing was not of the people involved in the murder. Hudson provided Detective Liebhart with other information about his past incarceration and about how he had met Mabon.
Fleming and Hudson testified that Detective Liebhart ended the interview, with the detective saying they were not interested in his information, as it "did not jive" with the information the police had. Fleming testified that he was given the impression that the main reason for this was that Mabon was African-American, whereas the police were focusing on two white males.
Fleming and Hudson further testified that on December 3, 2002 a second interview was conducted between Hudson and Detective John Short, with Fleming present. After this second interview Detective Short informed Fleming that Hudson's information did not fit with the information the police had from witnesses, again relating to their belief that they were looking for two white males, not an African-American man.
Detective Liebhart testified at the evidentiary hearing that he did not write a report regarding the interviews with Hudson.
Ferguson's trial attorneys testified that they were never provided this information, that is, information that another person had admitted to being involved in Heitholt's murder some two years prior to Erickson and Ferguson's arrests. They testified that had they received this information, they would have investigated it further. This would have been valuable information to provide to the jury, and further evidence to support Ferguson's innocence. Mabon was never investigated in relation to Heitholt's murder, despite his claim of being involved, and despite there being no valid suspects at the time of these interviews with Hudson.
Shawna Ornt, who testified at Ferguson's trial in October 2005, also testified at the evidentiary hearing. During Ferguson's trial Ornt was not asked by either the prosecution or the defense whether she could identify Ferguson as the person she saw in the parking lot on the night of the murder. During the course of the evidentiary hearing, it became abundantly clear why the prosecutor never asked this crucial question.
Ornt testified that she had repeatedly told Prosecutor Crane that she had seen pictures of Ferguson and Erickson, both in the newspaper and on television, and that neither of them were the people she saw that night. She testified that after the arrests she was invited to meet with Crane, and she told him that neither Ferguson nor Erickson were the people she saw. She testified that Crane told her that he knew these were the right people and that Jerry Trump had also said so. Ornt continued to tell Crane that they were not the right people, but Crane was persistent in trying to change her mind and have her agree with him. She testified that, "He [Crane] made me feel like I was wrong about what I was saying".
She further testified that she again met with Crane prior to the trial for "trial preparation", where she again told him that neither were the people she saw on the night of the murder. She described the boys in the pictures (Ferguson and Erickson) as being younger than the people she saw. Despite feeling intimidated by Crane, she was adamant that they were not the right people, and she told Crane she would not identify Ferguson in Court.
Perhaps the most telling portion of Ornt's testimony at the evidentiary hearing was her statement that if she had been asked during Ferguson's trial, by either the prosecution or the defense, whether Ferguson was the person she saw, she would have said no. Therefore, clearly the prosecutor could not ask this question of her, as he already knew her answer, but it is bewildering why the defense failed to ask this pertinent question.
Ferguson's trial attorneys testified at the evidentiary hearing that the prosecution did not disclose this information to the defense prior to trial, that is, that Ornt had told them on numerous occasions that she would not identify Ferguson in court. This is clearly a violation of the law, and was severely prejudicial to Ferguson. Had his defense team received this information, they would have investigated further, and presented this information to the jury.
During such an investigation the defense would have discovered that Ornt also told others that neither Erickson nor Ferguson were the people she saw. In fact, during the evidentiary hearing Ornt stated that "I told everybody I knew" that they were the wrong people.
One such person that Ornt told was the owner of the cleaning company she worked for, Alicia Shelton, who testified that Ornt had told her that she had seen the pictures of Erickson and Ferguson on television after their arrest and that they were not the people she saw. Had the defense presented this information to the jury, it could have substantially altered the outcome of the trial.
[Click here to watch a video of excerpts of Ornt and Shelton's testimony during the evidentiary hearing.]
Further in relation to Ornt, Ferguson claims his counsel were ineffective in that they failed to investigate her ability to identify him. The defense deposed Ornt prior to the trial, but failed to ask whether he was the person she saw on the night of the murder. Had they asked this, they would have known her answer would be no, and they could have presented this information to the jury.
Ferguson has also made various claims of ineffective assistance of counsel, predominantly relating to trial preparation and important witnesses who were not called to give evidence during the October 2005 trial.
The issue of subpoenaing Columbia Police Officer Todd Alber was again raised during the evidentiary hearing. It was again explained that the defense failed to subpoena Officer Alber prior to the trial and prior to him leaving for vacation, and he was therefore unable to testify. He did however testify at the evidentiary hearing in relation to the route the K-9 tracking dog took on the night of the murder.
Officer Alber testified that the dog followed the same trail as the luminol trail (performed by Detective Nichols on November 3, 2001) for approximately two blocks, but the dog continued past where the luminol track ended. The dog went behind the Broadway Diner and continued in a southeasterly direction towards the University of Missouri campus, ending at McDavid Hall. Officer Alber further testified that once past the Broadway Diner the dog continued tracking on a different path than what Erickson testified to at trial. He stated that according to Erickson's testimony, the path he and Ferguson traveled that night headed east at the Broadway Diner before continuing west and north back to By George, rather than the dog heading southeast to the University campus.
Map showing both of Erickson's routes and the K-9 tracking dog route.
Ferguson's trial attorneys testified that they wanted Officer Alber to testify at the trial, as his testimony in relation to the path the dog took would have impeached Erickson's testimony, as it was in complete contrast to his version of the route they apparently took. This would have been powerful evidence for the jury to consider, but they were not given the chance to hear this, due to the attorneys not subpoenaing Officer Alber in time.
In the alternative to Officer Alber testifying, the defense should have shown the jury a videotaped recreation of the path Officer Alber and the K-9 tracking dog took, which was prepared by the Columbia Police Department. This video was in the possession of the defense, and showed Officer Alber and the K-9 tracking dog running the route they followed on the night of the murder. During the evidentiary hearing Officer Alber testified that this video accurately reflected portions of the route they took.
The defense should have and could have submitted this video, which would have shown the flaws in Erickson's testimony, especially in light of Officer Alber being unavailable to testify at trial.
The most important person Ferguson believes should have been called during his October 2005 trial is Dallas Mallory. Mallory testified at the evidentiary hearing that on March 10, 2004 the police attended his work, Forum Cleaners, and took him to the Police Department to interview him. He told the police that he had not seen Erickson or Ferguson on the night of the murder. He testified that the police yelled at him, called him a liar, and threatened to charge him with Heitholt's murder if he didn't tell them the truth. He stated that they threatened that they would make a note of his vehicle registration details and all police officers would pull him over at any time his vehicle was seen, to take him in for more questioning. He became very scared during the interview and was crying as they continued to yell at him and call him a liar.
Mallory continually told the police that he was telling the truth, but they would not believe him. He testified that he told them that he had been in a police uniform costume and that he had been drinking rum since 3:00 pm that day and had consumed a large portion of alcohol.
He was interviewed for a second time on September 14, 2004, and was so scared from the abuse he received at the first interview that he simply told the police whatever they wanted to hear, in an effort to avoid their abuse and threats. He testified that the police report of September 14, 2004 did not contain information that he had given them, but rather what the police told him they had received from Erickson. Mallory denies the contents of that report.
Mallory further testified that he signed an affidavit on December 6, 2004 which stated that he did not see Erickson or Ferguson in downtown Columbia on the night of the murder, and that he never told police that Erickson told him they had "beat someone down", as Erickson claims. He further stated in that affidavit that he did not have a driver's license at that time and did not have a car. He testified that all of the information in this affidavit is true and correct.
Mallory's supervisor at Forum Cleaners, Donna Beck, testified that she remembered the police attending Forum Cleaners to take Mallory to the police station to interview him, and that upon his return to work he was very upset and it was obvious he had been crying. She stated that Mallory told her that the police had been yelling at him and that "he was getting dragged into something that he knew nothing about". Beck testified that she knew that Mallory did not have a car or a driver's license on Halloween 2001. She further testified that had she been contacted by Ferguson's defense team, she would have testified at his trial.
Ben White, an investigator with the prosecutor's office, testified at the evidentiary hearing that he had spoken with Mallory on a number of occasions. He further testified that during the trial in October 2005 he told Mallory that if he testified as to what was in his affidavit, he would testify that Mallory told him something different and he would look like a liar.
Detective Liebhart also testified at the evidentiary hearing, stating that he had also interviewed Mallory, and that he had said the same thing as in his original interview with Officer James Harmon. Officer Harmon's report says that Mallory denied seeing Erickson and Ferguson, and stated that he appeared to be completely truthful during their conversation.
Ferguson's trial attorneys were well aware of Mallory and the information he could provide to the jury, but failed to call him. In fact, Mallory was present at the courthouse during the trial, and could easily have been called to testify, and would have done so if he had been asked. Mallory's testimony would have cast serious doubt on Erickson's version of events and would have gone a long way to discrediting his testimony.
Mike Schook was also not called to testify at Ferguson's trial. Schook worked at By George Nightclub on the night of the murder. He testified at the evidentiary hearing that he had worked at the club for approximately two years and that during that time the doors to the club were never open to the public after 1:30 am, and that he had never stayed at the club beyond 2:15 am. He testified that on Halloween night of 2001 he had to disconnect the speaker wires because the DJ had continued to play beyond 1:15 am while the lights were on and staff were clearing patrons from the club.
He further testified that the standard procedure for closing the club each night was to turn the lights on at 12:50 am and start clearing patrons by 1:15 am. Once all patrons had left the club, he would go out into parking lot and ask everyone to leave, so that by 1:30 am there would be no patrons or cars in the area of the club. The staff would then clean the club, which was normally finished by 2:00 am.
Had the defense called Schook to testify during Ferguson's trial, he would have provided this information to the jury, which would have been in direct contrast to Erickson's story that he and Ferguson went back to By George after the murder, arriving around 2:30 am; an hour after the club was closed, and that they had stayed there for a further hour until approximately 3:30 am.
Further, Ferguson's defense team failed to obtain records relating to By George prior to trial from the Missouri Division of Alcohol and Tobacco Control – Licensing (Liquor Control). Had they obtained these records prior to trial, they would have shown that in the ten-year history of the club they had never been cited for being open after hours, i.e. after 1:30 am.
Ferguson's trial attorneys failed to investigate three cellmates of Erickson at the Boone County Jail and call them to testify at trial. Keith Fletcher, Eric Gaithings and John James were all housed with Erickson prior to Ferguson's trial in October 2005, and all spoke to him about the murder. All of these were known to the defense prior to trial, and should have been called to testify.
Fletcher testified at the evidentiary hearing that he was in the same pod as Erickson from the first day he was brought to the jail. Erickson told him that he had dreamed that he and Ferguson had killed Heitholt, and that the police had told him everything that happened, and he went along with it because they told him he was guilty. He further testified that Erickson told him he believed he could go home if he confessed, and that he was unsure whether he had actually committed the crime. Erickson said he was going to take the plea to get it over with. Fletcher and Erickson also wrote to each other numerous times after Fletcher left the Boone County Jail.
Gaithings testified at the evidentiary hearing that he was moved into the same cell block as Erickson a few months after Erickson's arrival at the jail, and that they spent many hours together and knew each other well. Erickson talked to him about the case, and would change his story on a daily basis; some days he would say he dreamed he did it and believed it, and on other days he would say he didn't do it at all.
James testified at the evidentiary hearing that he shared a cell pod with Erickson and they talked every day. He further stated that Erickson was very scared. He told him about a dream he had about the murder where he committed the murder with someone else, not Ferguson. He told him that he didn't know if he committed the murder or not, and that he "just keeps having this dream and it won't go away". James further testified that Erickson had smoked two bowls of marijuana prior to his interrogation, and believed that if he went along with the police they would go easier on him. He also testified that during his time in jail with Erickson, on several occasions where events broke out, the other cellmates would tell Erickson to take the fall for them, and he would. James said, "He was easy to talk into things like that".
Ferguson's defense team testified that they wanted to interview these three cellmates of Erickson but "just didn't get it done". The testimony of Fletcher, Gaithings and James would have highlighted to the jury that Erickson knew very little about the crime, had dreams about it and had no idea whether he actually committed it or not. This would have gone towards explaining Erickson's inconsistencies and state of mind.
Psychologist Dr. Delany Dean, who examined Erickson on two occasions, should have been investigated by Ferguson's attorneys and called to give evidence as to Erickson's mental health. Dr. Dean testified at the evidentiary hearing that she was retained to examine Erickson. She first examined him at the Boone County Jail on July 12, 2004 at the request of his attorney, Mark Kempton, and again on September 8, 2005 at the request of the Boone County Prosecutor's Office, after his plea negotiations. The purpose of the second examination was to determine his current mental status and any condition that might affect his capacity to provide testimony at Ferguson's trial. Dr. Dean testified that it was unusual to be contacted by a prosecutor to evaluate an adult witness prior to trial testimony.
Erickson's Boone County Jail records indicate that he was diagnosed with various conditions, including obsessive compulsive disorder, major depression, post-traumatic stress syndrome, history of conduct disorder, and alcohol, cannabis and cocaine abuse while at jail, and was prescribed medication for these conditions.
Dr. Dean testified that her examinations of Erickson were over a year apart, and that his ability to remember the events on the night of the murder was about the same on each occasion; that is, his memory of the events were no clearer in September 2005 than they were in July 2004. She testified that Erickson consistently used the term "spotty" to describe his memory of the night of the murder, and that in September 2005 his memory of that night was "like a movie". She further testified that Erickson told her that seeing Mallory the night of the murder was very clear in his mind, as opposed to other events which were "spotty".
Dr. Dean testified that obsessive compulsive disorder, which Erickson was suffering from, is an anxiety disorder listed in the "Diagnostic and Statistical Manual of Mental Disorders IV", which features recurrent obsessions or compulsions that are severe enough to be time consuming or cause marked distress or significant impairment. The manual states that the most common obsessions are repeated thoughts about contamination and repeated doubts, such as wondering whether one had performed an act such as harming someone.
Had Dr. Dean been called to testify at Ferguson's trial, she would have been able to explain this disorder to the jury, and show that Erickson's testimony against Ferguson was unreliable. She would have also been able to explain why Erickson believed he committed the murder and adopted what the police told him as his own memories.
Jerry Trump was one of the prosecutor's main witnesses during the trial and Ferguson's attorneys failed to fully investigate him to enable them to provide impeachment testimony against him. Had they done so, they would have discovered Christine Varner, who worked at the Job Center through which Trump was employed at the time of the murder.
Varner testified at the evidentiary hearing that she spoke with Trump at the Job Center about the murder the day after it happened. Trump told her what had happened that night, and that he could not clearly see the people in the parking lot. He also said that he had been scared and didn't want to be seen by them so he stood back so they couldn't recognize him. She testified that she watched the "48 Hours Mystery" program in relation to the murder and saw Trump identify Ferguson during the trial. She stated that when she saw that, she said, "Well that's not what he said [to me], it just really stood out".
[Click here to watch video of excerpts of Varner's testimony during the evidentiary hearing.]
This testimony would have severely discredited Trump's identification of Ferguson, one of the most compelling pieces of evidence against him, and could have significantly changed the outcome of the trial.
Ferguson believes his trial attorneys should have called a false confession expert to testify at his trial, such as Dr. Richard Leo, Ph.D., J.D. Dr. Leo testified at the evidentiary hearing in relation to false confessions. He stated that there are certain things to look for in a false confession, including police techniques, the confessor's personality and vulnerability, the indicia of reliability in the story and mistakes made in police work. Dr. Leo testified that highly suggestible people tend to accept and repeat back information that is suggested by another. He further stated that an innocent confessor will not be able to supply accurate details of the crime unless they guess them, and will not be able to lead police to new information or explain unique aspects of the crime. He stated that the false confession will not be corroborated by existing objective evidence, and will usually contain guesses and errors which are inconsistent with, or contradicted by, the objective case evidence.
Dr. Leo further testified that there are three types of false confessions; voluntary false confessions, compliant false confessions, and persuaded false confessions. It was his opinion, upon viewing videos of Erickson's interrogation, that his was a persuaded false confession. In this type of confession, the confessor is uncertain about their guilt, but because of what they learn during the interrogation they come to believe they probably committed the crime even though they cannot remember doing so. Dr. Leo testified that Erickson's interrogation was full of uncertain language, including him saying "I don't know" 24 times, and improper police interrogation techniques such as feeding facts to Erickson and correcting his statements when they were wrong.
Had Dr. Leo, or a similarly qualified false confession expert, been called to testify at Ferguson's trial, he would have explained false confessions to the jury and cast serious doubt over Erickson's confession which, being the majority of the prosecution's case against Ferguson, would have had significant ramifications in the trial.
Ferguson's trial attorneys failed to submit the articles from the Columbia Daily Tribune dated November 1, 2001 and November 1, 2003 relating to Heitholt's murder, to show what facts Erickson had read prior to his interrogation. Erickson claimed the only facts of the case he knew were from what he read in the newspaper, and that he was making presumptions based on what he had read in those articles. Therefore the articles would have helped explain to the jury how he knew facts about the murder when he was not involved.
Ferguson's trial attorneys also failed to adequately prepare an aerial photograph of the Columbia area for use during witness testimony, specifically during their cross-examination of Erickson. A large portion of their cross-examination related to the route he claimed he and Ferguson took on the night of the murder. During the cross-examination both a juror and the prosecutor pointed out to the defense that the photograph was incorrect, specifically in that the By George Nightclub was incorrectly marked on the photograph and the Broadway Diner was not on the photograph at all. The defense were then forced to change exhibits in front of the jury, which would have undermined their credibility.
Ferguson has also cited a variety of specific legal issues, including his trial counsel's failure to include various issues in their Motion for a New Trial. One such issue was the court not allowing Officers Hatton and Rugstadt to testify in relation to the route the K-9 tracking dog took on the night of the murder. Another issue related to the instruction to the jury regarding intoxication. Both of these issues should have been included in the Motion for a New Trial.
His trial attorneys also failed to object to a number of issues during the trial, and include these issues in their request for a new trial. During the empanelment of the jury Ferguson's counsel failed to object to the prosecutor speaking about Erickson's plea agreement with the State. During the prosecution's direct examination of Erickson, the defense failed to object to Crane's "improper bolstering" of Erickson, and intertwining his personal opinion into his questioning of Erickson, which insinuated that he had special knowledge of his guilt.
Most importantly, the defense failed to object to Crane deceiving the jury in his closing argument in relation to the hair found in Heitholt's hand, when he said, "Number one, ladies and gentlemen, and we went through excruciating detail on this, there's no evidence that that hair was ever in his hand. And there was no evidence that it was bloody". This statement is against the State's own evidence and this should have been highlighted to the jury.
Copy of portion of Laboratory Analysis Request form for testing of hair in victim's hand. Click here to view the full form.
[Click here to view a video in relation to the hair found in victim's hand and the prosecutor lying to the jury about this hair.]
During the trial the prosecution objected to Ferguson's videotaped interrogation being admitted into evidence and shown to the jury, specifically during the defense's redirect examination of Ferguson. During their cross-examination of Ferguson the prosecution tried to impeach him by asking him questions in relation to whether he told the police during his interrogation the same information he was testifying to. Ferguson's attorneys requested the court to allow the interrogation video to be shown, to counter the prosecution's claims of fabrication. The court would not allow this, so the video was not shown.
Ferguson's attorneys were ineffective in that they should have cited the "curative admissibility doctrine" in an effort to have the video shown. The doctrine "applies after one party introduces inadmissible evidence. In that situation, the opposing party may introduce otherwise inadmissible evidence of its own to rebut or explain inferences raised by the first party's evidence". In this case, the defense should have argued that in light of this doctrine, and the prosecution effectively "opening the door" on what was on Ferguson's videotaped interrogation, the video be allowed, however they failed to do so.
Further, Ferguson's initial appeal attorney, Ellen Flottman, failed to include this issue in the original appeal. Had this issue been included, it could have changed the outcome of the appeal and he may have been granted a new trial as a result.
Following the filing of the Rule 29.15 Motion for Appeal, Ferguson filed a further appeal, for habeas corpus relief, in the Cole County Court on August 13, 2008, citing that he was denied his rights to due process, equal protection under the law, and freedom from cruel and unusual punishment due to the Lincoln County jury selection process.
By agreement, Ferguson's jury for his October 2005 trial was selected from Lincoln County, specifically from Troy. On July 28, 2008 Ferguson's lawyer discovered information in relation to the selection process of the jury for his trial.
An evidentiary hearing in relation to this appeal was held at the Cole County Courthouse in Jefferson City on December 15, 2008, presided over by Judge Richard Callahan.
During the evidentiary hearing, District Defender of the Public Defender's Office in Troy, Missouri, Thomas Galen, testified that in July 2008 he discovered a document which, amongst other things, included the term "$50.00 Jury Duty". Unaware of what this related to, he asked court personnel and was informed that this referred to potential jurors being able to pay the sum of $50.00 to remove themselves from jury duty. Potential jurors were offered the choice of participating in jury duty or undertaking six hours of community service which attracted a supervision fee of $50.00. Galen further discovered that this policy had been implemented by Judge Dan Dildine, who had been using it for several years. The policy was in use during Ferguson's October 2005 trial.
Circuit Clerk for Lincoln County and former Deputy Clerk, Grace Sinclair, testified at the evidentiary hearing as to the Lincoln County jury selection procedure. She testified that there are three terms per year for jury selection with each term lasting four months. Each person in the jury pool is sent notification two months prior to the beginning of their term. The notice includes a request that potential jurors contact the court if they believe they are unable to participate. The jury pool relating to Ferguson's trial included 848 potential jurors, with the term running from October 4, 2005 to January 31, 2006.
The "Lincoln County Jury Pool Excused/Disqualification Report" was submitted as evidence during the hearing, and Sinclair testified that this report contained the names of jurors excused by the court during this term, including their reason for excusal. Sinclair testified that there were 13 people in this pool excused from jury duty prior to Ferguson's trial, by having performed six hours of community service. She further testified that the $50.00 fee did not come into effect until 2006, and accordingly, the 13 jurors were not required to pay this fee.
Ferguson stated that his jury was not randomly selected or selected from a fair cross-section of the community, and was not selected in accordance with the laws of Missouri. A writ of habeas corpus can be issued "when a person is held in detention in violation of the constitution or laws of the State or Federal Government". Ferguson claimed that because his jury was not correctly and legally selected, his trial was unfair, and as he is incarcerated solely as a result of that unfair trial, he is currently being held in violation of the law, hence the claim under habeas corpus. He therefore requested that his conviction and sentence be vacated.
Ferguson's habeas corpus appeal was denied on January 9, 2009. Judge Callahan ruled that the claim was procedurally barred as it should have been brought up earlier, either during the trial or in a previous appeal. This however was impossible, as Ferguson's lawyer only discovered this information in July 2008. Judge Callahan further ruled that the selection of the jury was not in compliance with the statute, however it was not "substantial non-compliance" as it effected only 13 out of the pool of 848.
Ferguson’s Rule 29.15 appeal was denied by Judge Asel on June 12, 2009. The defense filed the Movant’s Proposed Findings of Fact, Conclusions of Law, Order and Judgment on September 15, 2008. The prosecution filed the State’s Findings of Fact, Conclusions of Law, and Judgment on September 29, 2008. Nearly nine months later, Judge Asel merely adopted the judgment prepared by the prosecution, signing the same in the prosecution’s favor, to deny each and every ground of appeal put forward by the defense in what can only be described as a heavily biased judgment.
Arguably, Judge Asel’s 40-page decision was replete with factual errors and misinterpretations of the evidence presented at the July 2008 hearing. It included findings that no Brady violations occurred and that Ferguson’s trial counsel were not ineffective (despite significant evidence to the contrary in relation to both of these findings), and that Ferguson “failed to show that his conviction or sentence violates the Constitution or laws of this State or of the United States”.
Obviously dissatisfied with the judgment, Ferguson is now in the process of appealing Judge Asel’s decision to the Western District Court of Appeals in Kansas City. He has now appointed Kathleen Zellner of Illinois to represent him in this next phase of the appeal process.
In a new development, in November 2009 Erickson provided Zellner with a sworn videotaped statement saying that he alone committed the murder, and that Ferguson was not involved, but was merely a bystander who tried to stop him. Erickson has taken sole responsibility for the murder, and admits that he lied during his testimony when he claimed Ferguson strangled the victim.
Erickson’s sworn statement has been added to Zellner’s appeal brief, which was filed in February. The prosecution had been granted a two-month extension to file its response documents, which are now due in May. An oral hearing will then take place before a decision is made as to whether or not the appeal is allowed and a new trial is granted. This process could take many months.
Another Lost Appeal
On January 30, 2013 attorneys for Ryan Ferguson filed a 154-page petition with the Missouri Court of Appeals for the Western District, challenging the October 2012 ruling by Cole County Circuit Court Judge Daniel Green denying Ferguson a new trial. The appeal argues that Judge Green made eight errors is his application of the law as well as several errors in his factual findings.
“The case is about actual innocence,” the petition states. “No direct evidence tied Ryan to the victim’s murder. No physical evidence even placed him at the scene. The only circumstantial evidence against Ryan was the exhaustively impeached testimony of [Chuck] Erickson and the identification made by [Jerry] Trump. Both of those witnesses have now admitted that their trial testimony linking Ryan to the murder was false.”
Ferguson was convicted in 2005 of murdering Keith Heitholt in 2001, the sports editor of the Columbia (Missouri) Daily Tribune.
In April of 2012 Ferguson was granted an evidentiary hearing in Cole County Circuit Court before Judge Green. During the five-day hearing, the only two trial witnesses who linked him to the murder both testified that they had perjured themselves at murder trial. The recantations by Chuck Erickson, a teenage friend of Ferguson’s, and Jerry Trump were part of a habeas corpus petition submitted by Ferguson’s attorney, Kathleen Zellner of Chicago. Based on the trial testimony of Erickson and Trump, Ferguson was convicted of the Halloween night 2001 murder and sentenced to 40 years in prison. No one other than Trump and Erickson ever placed Ferguson at the crime scene.
In ruling not to grant Ferguson a new trial, Judge Green stated to found both recantations “not credible.” Of Erickson’s he wrote, “Erickson’s recantation is a textbook example of why the law views recantations with suspicion and caution.” He noted that Erickson had knowledge of unique facts of the murder during his trial testimony.
In making this observation, Judge Green exposed one of the errors Zellner argued in Ferguson’s pending appeal, namely that the police fed Erickson the “unique facts” he testified to at trial about Heitholt’s murder. In the article that follows, “One Murder, Two Victims,” video-taped police interviews of Erickson demonstrate detectives feeding him information about the murder he clearly did not know about.
To deny Ferguson a new trial, Judge Green had to ignore a mountain of evidence that clearly establishes Ferguson’s innocence. For example, none of the forensic evidence gathered at the crime scene – including fingerprints, hair clutched in Heitholt’s hand and bloody footprints – linked Ferguson or Erickson to the crime. What the forensic evidence did reveal was that Heitholt’s murder had taken six to eight minutes to occur.
The judge also had to discard the importance of testimony provided at the April evidentiary hearing from Michael Boyd, a sports writer at the Daily Tribune who was the last to see Heitholt alive in the Tribune parking lot, where Heitholt had been attacked and eventually strangled to death with his own belt. Boyd testified that as he was driving away from the parking lot around 2:20 a.m. that morning, he saw two individuals walking toward the Tribune parking lot.
Boyd was not called at trial by the prosecution because his timeline would have destroyed the prosecution’s timeline that the attack occurred between 2:12 a.m. and 2:20 a.m. In addition, Boyd told police at the time he was not sure of the race or gender of the two individuals he saw in the alley.
At Ferguson’s trial, two Tribune janitors testified they saw two while males near Heitholt’s car at 2:21 a.m. One of them was Trump and the other was Shawna Ornt. Orrnt testified she could not identify either of the two males she saw that morning. Trump said he could and he identified Ferguson and Erickson, thus corroborating Erickson’s testimony about himself and Ferguson’s role in Heitholt’s murder.
It is hard to imagine how Judge Green could not find Erickson’s recantation credible. His trial testimony was far more bizarre and unbelievable. At the time of Heitholt’s murder, Erickson, like Ferguson, was a high school junior. Two years after Heitholt’s murder, Erickson began telling friends that he was having “dreams” that he and his friend Ferguson had murdered Heitholt. These comments quickly brought the police to Erickson’s door.
In his 2011 affidavit, Erickson averred, “Ryan Ferguson did not harm Kent Heitholt in any way.” In the years after Ferguson’s conviction, Erickson has been saying that he has no memory after midnight of what transpired the morning Heitholt was murdered because he [Erickson] had “an alcoholic blackout.” At the evidentiary hearing in front of Judge Green, he admitted he lied at trial to save himself from the death penalty. For his testimony against Ferguson, Erickson was allowed to plead guilty in exchange for a sentence of 25 years.
The same could be said of Trump’s recantation. It had the ring of truth because of its specific details. Trump, who was on parole at the time for molesting a teenager, told police the day after the murder that he saw two men in the parking lot but could not see them clearly enough to identify. He also said the same thing to his supervisor and several co-workers.
At Ferguson’s trial, Trump told the jury that while he was in prison for a parole violation, his wife sent him a newspaper article with photos of Erickson and Ferguson and from those he was able to positively identify both teenagers as Heitholt’s assailants. He testified he then contacted Boone County D.A. Kevin Crane and became the prosecution’s second witness.
In his affidavit, Trump said his testimony was a lie: it was Crane who met with him in December of 2004 after Trump had been released from prison and showed him the photos of the accused and told him it would be in his interest to identify Ferguson as one of the men in the parking lot the night Heitholt was murdered.
Crane is now a Boone County circuit court judge. Crane’s campaign for election to the circuit court heavily touted his winning conviction of Ryan Ferguson.
Ferguson's next appeal will be before a three-judge panel of the Missouri Court of Appeals Western District. A ruling is expected sometime in November of 2013.
Dedication: This article is dedicated to the memory of Andrew Bartrop, who inspires me to fight for justice for the innocent, such as Ryan Ferguson
For more information on this case, Ryan Ferguson may be contacted by writing to him at:
Ryan Ferguson #1137593 Jefferson City Correctional Center 8200 No More Victims Road – (3-House) Jefferson City, MO 65101
Justice on Trial is a landmark study of prosecutorial misconduct conducted by the Northern California Innocence Project at Santa Clara University School of Law and released in October of 2010.
In 2007, a California Court of Appeal set aside the murder conviction of Mark Sodersten because a Tulare County deputy district attorney had improperly withheld from the defense audiotapes of his interviews with a key witness.
The Appeals court personally listened to the tapes and concluded they contained dramatic evidence pointing to Sodersten’s innocence. Based on this finding, the court vacated his conviction. “This case,” the court declared, “raises the one issue that is the most feared aspect of our system—that an innocent man might be convicted.”
For Sodersten, however, the ruling came too late. He had died in prison six months earlier, after spending 22 years behind bars. The prosecution had sought the death penalty, but the jury sentenced him to life without parole.
The ruling was one of 707 cases of prosecutorial misconduct uncovered in a year-long investigation by the Northern California Innocence Project (NCIP) at Santa Clara University School of Law.
The investigation, made public October 4, 2010 is the most in-depth statewide review of prosecutorial misconduct in the United States.
The investigation reviewed more than 4,000 state and federal appellate rulings, as well as scores of media reports and trial court decisions, covering the period 1997 through 2009, to produce a comprehensive analysis of publicly available cases of prosecutorial misconduct in California.
The NCIP study, conducted by Kathleen Ridolfi, NCIP executive director, and Maurice Possley, a Pulitzer Prize-winning journalist and currently a visiting research fellow at Santa Clara University School of Law, suggested that cases of prosecutorial misconduct averaged one a week over that 13-year period.
But that figure undoubtedly understates the total number of such cases. The 707 were just the cases identified in a review of appellate cases and a handful of others found through media searches and other means.
In another 282 cases examined by the NCIP, the courts did not decide whether prosecutors’ actions were improper, finding that the trials were nonetheless fair.
The report details how prosecutors are rarely disciplined for their misconduct and how the courts fail to report it. The California State Bar rarely investigates such misconduct.
It expanded upon a study of prosecutorial misconduct conducted by Ridolfi after she was appointed to the California Commission on the Fair Administration of Justice in 2004.
The records show the California Bar did investigate the Sodersten case, but failed to take action. Even though Sodersten’s death ordinarily would have ended the case, the Appeals Court took the unusual step of issuing a ruling anyway because of the importance of the issue: “[W]hat happened in this case has such an impact upon the integrity and fairness that are the cornerstones of our criminal justice system that continued public confidence in that system requires us to address the validity of [Sodersten’s] conviction despite the fact we can no longer provide a remedy for petitioner himself.”
The court concluded: “To do otherwise would be a disservice to the legitimate public expectation that judges will enforce justice. It would be a disservice to justice. Most of all, it would be a disservice to [Sodersten] who maintained his innocence despite a system that failed him.”
The prosecutor was never disciplined. Sodersten’s attorney filed a formal complaint with the California State Bar, arguing that the prosecutor “asked a jury to kill a man based on a conviction he perverted.”
In April 2010, the State Bar closed the investigation, because “this office has concluded that we could not prove culpability by clear and convincing evidence” – even though the tapes the prosecutor wrongfully withheld included interviews with a key witness conducted by the prosecutor himself.
The prosecutor, Phillip Cline, has never been held responsible for his actions, and it is virtually certain that he never will. He has absolute immunity from any civil liability for his conduct as a prosecutor. Cline was elected District Attorney for Tulare County in 1992 and remains in that position today.
In the vast majority – 548 of the 707 cases – courts found misconduct but nevertheless upheld the convictions, ruling that the misconduct was harmless. Only in 159 of the 707 cases – about 20 percent – did the courts find that the misconduct was harmful; in these cases they set aside the conviction or sentence, declared a mistrial or barred evidence.
The study shows that those empowered to address the problem – California state and federal courts, prosecutors and the California State Bar – repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.
Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.
Notably, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutors involved (600 cases), 67 prosecutors –11.2 percent – committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five.
The report contains a series of recommendations aimed at reducing prosecutorial misconduct. These include:
development of a course by the California District Attorneys Association, California Public Defenders Association and California Attorneys for Criminal Justice to address ethical issues that commonly arise in criminal cases;
adoption by District Attorney offices of internal policies that do not tolerate misconduct, including establishing internal reviews of error;
and adoption by District Attorney offices and law enforcement agencies of written exculpatory evidence policies.
Moreover, the report seeks expansion of judicial reporting to include any finding of “egregious” misconduct, as well as any constitutional violation by a prosecutor or defense attorney, regardless of whether it resulted in modification or reversal of the judgment. The report recommends that judges be required to list attorneys’ full names in opinions finding misconduct.
And the report also recommends that the State Bar expand discipline for prosecutorial misconduct and increase disciplinary transparency.
The Northern California Innocence Project (http://www.ncip.scu.edu/ ) at Santa Clara University School of Law, founded in 2001, operates as a pro bono legal clinical program, where law students, clinical fellows, attorneys, pro bono counsel, and volunteers work to identify and provide legal representation to wrongfully convicted prisoners.
NCIP educates future attorneys, exonerates the innocent, and is dedicated to raising public awareness about the prevalence and causes of wrongful conviction. The project also promotes substantive legislative and policy reform through data-driven research and policy recommendations aimed at ensuring the integrity of our justice system.
To read the excutive summery of the report, please click here (.pdf file).
The murder of British student Meredith Kercher in Perugia, Italy on November 1, 2007 caused a global controversy. Not so much for the crime itself, although it was certainly a brutal murder, but because of the disputed guilt or innocence of two of the three defendants, American Amanda Knox and Italian Raffaele Sollecito.
On January 30, 2014, an appeal court in Florence, Italy found Amanda Knox and her former boyfriend, Raffaele Sollecito, guilty for a second time of the 2007 murder of Meredith Kercher, a British student attending the University of Perugia. Knox, in absentia, was sentenced to 28 1/2 years and Sollecito to 25 years. She refused to attend the latest trial, opting to send a long email to the court while remaining in the United States – asserting her innocence and that of Sollecito – a move which has antagonized some Italian officials.
Both Knox, who also attended the university as an exchange student and was a flat mate of Kercher’s, and Sollecito were originally convicted in 2009. Two years later, an appeal court overturned both convictions, ending four years of imprisonment for both defendants. Following that ruling, Italy's highest court, the Court of Cassation, departed from its normal role of dealing with legal technicalities and ordered a retrial before the appeal court based in Florence.
Those proceedings, before two judges and six lay jurors, began in November. At the retrial, the prosecution did not produce any new evidence or proof that Knox or Sollecito were in the bedroom when Kercher was stabbed to death in 2007. It merely changed its theory of the case from some sort of ritualistic sex game gone bad to Knox murdering her flat mate because Kercher criticized her lax housekeeping.
Although Sollecito, now 29, attended a good portion of the retrial along with his father, he was not in the courtroom when the verdicts – after 11 ½ hours of deliberation – were announced. Knox, 26, returned to Seattle following her 2011 exoneration.
The question that is fair to ask, given their shaky original case, mishandled forensic evidence and continuing public relations problems over the case, is why were Italian prosecutors still pursuing Knox and Sollecito? To be blunt, the most plausible answer was a vendetta born of anger at being ridiculed at home and abroad and a stubborn reluctance to accept that there may well have been a miscarriage of justice. Italian authorities had already expended enormous amounts of time and resources on this case. They've also had to put up with hostile global media coverage, repeated high-profile criticisms of their investigations and handling of the case and they didn’t want to be seen to endure so much trouble and have squandered so much time and effort only to publicly admit an error. The more they pursued this case, the worse the criticisms will be. The worse the criticism, the less they wanted to be seen to admit a blunder.
Another possible cause of this vendetta may have been inspired by the 2013 publication of Knox’s book, Waiting To Be Heard, allowing Knox to achieve a good dose of vindication and a $4 million advance from Harper-Collins. The book recounts the over-the-top police interrogations she was submitted to, her four years in an Italian prison, and her exoneration on appeal in 2011. In a post-publication interview with the National Post, Knox said most of the advance has already been used to pay legal fees and expenses incurred during her trials, imprisonment and appeals. She also told the National Post she will not change her story regarding alleged police misconduct simply because of threatened defamation lawsuits by Italian police and prosecutors.
Soon after the verdicts were announced, defense attorneys vowed to appeal the reinstatement of the original convictions to the Court of Cassation once the Florence court publishes its justification of its verdicts in late April of 2014.
“It’s evident we will appeal,” said Luciano Ghirga, one of Knox’s attorneys. “We continue to say that there is no evidence,” The New York Times reported the next day. An attorney for Sollecito, Giulia Bongiorno, said the trial had been “empty of proof and evidence” and pledged to appeal. These appeals could easily take two or more years to make their way through Italy’s convoluted justice system.
A request by the prosecutor to issue arrest warrants for the defendants was rejected by the Florence court. The court ruled that Knox was legitimately in the United States and that Sollecito only be required to surrender his passport and not leave Italy.
Only if all subsequent appeals are denied could Italian authorities begin extradition proceedings for Knox’s return to serve her sentence. The decision to honor Italy’s request for extradition rests solely with the U.S. Secretary of State. Because Knox was exonerated previously, the United States will most probably not agree to extradite her to Italy. Doing so would be a violation of the U.S. Constitution's prohibition against double jeopardy. But then, again, one never knows what might happen in the politically charged atmosphere this case has generated.
Now that Knox has been re-convicted she will be unable to enter any European Union country without almost certainly being arrested and held pending an Italian extradition request. European law and various EU treaties would oblige other EU nations to do so.
Furthermore, if she enters any country with a vested interest in either pleasing the Italians or displeasing the U.S. State Department, then they may opt to detain her and offer her to the Italians as a fugitive.
Contrary to popular belief, countries do not need a standing extradition treaty to detain fugitives of another state and offer them for extradition. A notable exception to standard extradition is the EU itself which refuses to extradite prisoners to any country where they even might face the death penalty. As neither Knox norSollecito (who, unlike Knox, has attended the latest trial) would face execution if convicted, that rule wouldn’t apply.
Knox, now 25, is currently enrolled at the University of Washington in Seattle and expects to graduate in 2014.
To many observers, it was a farce for the Court of Cassation to order a retrial. Judge Hellman of the original appeal court – the court that exonerated Knox and Sollecito – was outraged by the decision to allow another retrial. Hellman has claimed unequivocally that the Court of Cassation has stepped outside its own authority by interpreting trial evidence instead of strictly confining itself to legal technicalities as required under Italian law. Hellman is suggesting the Court of Cassation effectively retried the original murder case rather than assessing the lawfulness (or otherwise) of the original investigation and trial. Hellman has also made it clear, to use his exact words, that the “Ruling has explained to the judges in the new trial how they should convict the two accused.” His prediction about that was borne out by the new guilty verdicts.
One of the distinctive aspects of the case has been the level of international media coverage. That a murder case involving a British victim and African, American and Italian defendants would attract multinational media attention is no surprise at all. What has given the case a quite tacky aspect has been the kind of media coverage it has attracted. Amanda Knox has suffered from negative publicity as much about her alleged lifestyle in Perugia as her alleged guilt in the murder. She’s been vilified for behaving like a libertine by many Italian media outlets which used her “party girl” lifestyle to sell papers while lambasting her as some kind of scarlet woman. British tabloids have used her looks to her disadvantage, labelling her “Foxy Knoxy” and suggesting she fits the profile of a cold-blooded femme fatale.
U.S. media, on the other hand, have largely been more supportive towards her, not that this has necessarily helped Amanda Knox. No country likes to see its own system of justice pilloried by foreign media and Italy is no exception. It has been suggested that, far from helping Knox’s case, U.S. media criticism of Italian justice was what hardened the resolve of Italian prosecutors to continue pursuing the case against her.
The Murder of Meredith Kercher
The murder of British student Meredith Kercher in Perugia, Italy on November 1, 2007 caused a global controversy. Not so much for the crime itself, although it was certainly a brutal murder, but because of the disputed guilt or innocence of two of the three defendants, American Amanda Knox and Italian Raffaele Sollecito.
Rudy Guede admitted to being present at the crime scene when the murder was committed and watching as Kercher bled to death, but denied being the actual killer. However, the forensic evidence points firmly to Guede’s guilt. A bloody handprint of his, covered with the victims’s blood, was on Kercher’s bedroom wall. Italian forensic police testified that Guede’s DNA was inside the victim.
Following his trial, Guede was convicted and sentenced to 30 years in prison. That sentence was reduced to 16 years during his appeal hearing when Guede agreed to testify against Knox and Sollecito. Guede becomes eligible for parole in 2014 due to his reduced sentence. Just because he will be eligible for parole is no guarantee he will be released.
Following Guede’s trial and conviction, Knox and Sollecito went on trial in 2009 for their alleged roles in the murder of the 21-year-old Kercher. Both were found guilty and sentenced to more than 25 years. Under the Italian two-tier trial system, the case was then referred to the higher-level court to be heard a second time, after which judges would either confirm or reject the lower-level court's verdict. In 2011 the higher-level court overturned the initial convictions, issuing a ruling lambasting the police’s handling of the investigation. Judges also singled out major defects in the collection, handling and analysis of critical forensic evidence used by the prosecution.
Unlike in the United States and Great Britain where exonerated defendants are protected against being retried for the same crime, Italy operates under the Code Napoleon which offers no protection against double jeopardy. Under Italian law prosecutors have the same right to appeal acquittals as defendants to appeal convictions. Both prosecutors and defendants can go from the higher-level tribunal to the Court of Cassation (Italy's highest judicial body, equivalent to the U.S. Supreme Court). Prosecutors appealed the higher-level ruling and, in March 2013, Italian prosecutors won. The higher-level ruling quashing the murder convictions was itself overturned and the court granted a prosecution request for a retrial. That retrial began in November 2013 and lasted until January 30, 2014, when the Florence appeal court upheld their 2009 convictions.
Amanda Knox refused to leave the United States to stand for retrial, but Raffaele Sollecito, frequently in the company of his father, attended a good portion of the retrial. He was not present in the courtroom when the verdicts were announced.
The Victim
Meredith Kercher
Meredith Kercher had a passion for Italy and its people, language and culture. She started a degree course at Leeds University in 2007 studying European Politics and Italian, electing to spend her foreign study year at the University of Perugia. While at Perugia she studied modern history, political theories and the history of Italian cinema. She was fluent in Italian and supported herself with the usual low-paid student work including promotional work for a local company, working as a tour guide and bar work at local nightclub Le Chic, owned by a Congolese immigrant, Patrick Lumumba.
It was through Lumumba that she met Amanda Knox when Knox took a job at Le Chic. Through Knox she met co-defendants Rudy Guede and RaffaeleSollecito.(Knox has denied ever having met or known Guede, but Candace Demspey, author of Murder in Italy, has stated unambiguously that Knox did meet him at least once. In a recent letter to Italian authorities Knox herself stated she met Guede only once, but never after that.)
Picturesque Perugia is a popular place for students, especially foreigners. The nightlife is vibrant, foreigners – both tourists and students – come and go in large numbers and local people generally welcome foreigners.Kercher lived with two Italian students and Amanda Knox. They shared a flat at Via Della Pergola 7, regarded by locals as one of Perugia’s less desirable neighborhoods, and seemed to get along well. Doubtless there were the usual occasional flatmate arguments, but nothing serious. Just two typical students abroad, sharing a flat and picking up casual work to pay the bills.
Knox, originally from Seattle, had enrolled at the University in Perugia to study Italian, German and creative writing on a one-year course, starting in 2007. She secured a room in the same flat as Kercher just prior to the start of the 2007 academic year in September. She met Sollecito at a classical music concert in mid-October 2007 and the two became a couple only a week before Kercher’s murder.
Sollecito came to Perugia from the town of Bari. A couple of years older than Knox and Kercher, he was nearing the end of his own course in computer engineering. His grades were good and there was nothing unusual about either Sollecito's background or lifestyle.
On November 1, 2007 Kercher was found dead on her bedroom floor. She had been physically restrained, sexually assaulted, beaten and slashed with a knife. The cause of death was two stab wounds to her neck. Suffocation also played a part, her naked body being discovered on her bed covered from head to foot with a quilt. An upstairs window had been broken into and Kercher’s two cellphones were missing along with her house keys, two credit cards and some cash. At first the broken window and stolen property suggested a burglary gone terribly wrong. Police soon discounted this theory. The broken window was around 12 feet above ground level and the missing cellphones were soon found in a nearby garden. The other stolen items and cash were never recovered which did indicate theft was a motive.
Ensnaring Amanda Knox and Raffaele Sollecito
Kercher’s murder was discovered by her Italian flatmates, who immediately notified the police. The flatmates initially reported a break-in. After finding bloodstains, they found Kercher’s bedroom door was locked and, despite repeatedly calling her to open it, they got no answer. Fearing for her safety, they broke it down and found her body.
The police quickly began investigating and started by interviewing people closest to the victim. Murder investigations frequently involve starting with the victim and then those closest to him or her. Knox and Sollecito being among the first interviewed implies nothing about either their guilt or innocence. Murder is very often a personal rather than professional crime. Knox (Kercher’s flatmate) and Sollecito (Knox’s new boyfriend) were interviewed separately and their stories compared for discrepancies. As they were being interviewed as witnesses and not (at the time) interrogated as suspects, nothing they said was admissible in court under Italian law. But their status as witnesses also meant they weren’t given the standard protections afforded to suspects such as immediate access to lawyers. Nor were any audio recordings or film footage taken of their initial interviews. .
Sollecito and Knox initially claimed they were together at Sollecito’s flat at the time of the murder. Knox had been told by a text message from bar owner Lumumba that she had the night off. Business was slow that night and it didn’t look like she’d be needed. Both Knox and Kercher worked at Le Chic as barmaids.
The stories Knox and Sollecito told didn’t hold water for very long.
Both were interviewed several times over the next few days. It was Sollecito who changed his story first. (His account originally agreed with Knox's, claiming that they'd spent the whole evening at his flat. He now changed his story, stating that he'd only been with Knox for part of the evening, wasn't entirely sure when she'd left his flat and that he'd spent the rest of the evening at home alone using his computer.
According to Sollecito, investigators told him that Knox had cracked and implicated him in the murder. Sollecito later alleged that police had heavily pressured him to save himself by implicating Knox, threatening to prosecute him for the murder unless he named Knox as the ringleader. Sollecito further claimed that, while he himself had no intention of cracking, he wasn’t sure they wouldn’t bully Knox into implicating him. He was sure that they were trying to do exactly that.
Knox alleges that, once she formally became a suspect instead of a witness, police employed physical abuse, verbal threats and intense pressure to force a confession. At her appeal Knox claimed police slapped her at least twice during questioning. She also accused them of denying her food, drink, sleep and bathroom breaksand that, as she spoke little Italian, the police interpreter not only mistranslated her words but attempted to twist them and pressurise her still further.Italian officers present during her interviews deny all those allegations.
At one point investigators told Knox they had transcripts of the text messages between her and Lumumba when he gave her the night off. Knox claims police interpreted her use of the common phrase “See you later” in her final message to mean that Knox and Lumumba were co-conspirators planning to meet later and commit the crime. It was then that Knox did something very foolish. She accused Lumumba of murdering Meredith Kercher. She claimed he was obsessed with Kercher and she was sure of his guilt.
In doing so she both changed her initial story (of being at Sollecito’s flat for almost the entire evening) and made an entirely baseless accusation against Lumumba.That false accusation would have serious consequences for both of them. She was now claiming that she'd met Lumumba at the Piazza Grimana, accompanied him to her flat and actually seen him murder Kercher.
Why an innocent person would implicate herself in a murder while falsely accusing an innocent man is hard to understand, but Knox herself alleges that police mistreated her during her questioning and kept pressing her to admit her involvement in the crime. The statement containing these new claims was in Italian, a language Knox wasn't fluent in and wouldn't have been able to read fully before signing it.
Knox also acted oddly both immediately after the murder and during her initial interviews. Her emotional state regularly fluctuated between apparent indifference, crying fits and seemingly clowning around which only increased police suspicions. It also generated increasingly hostile media interest and public opinion. Her unpredictable behavior isn’t evidence of guilt so much as of stress, fear, mental fatigue and perhaps not fully realizing the seriousness of her situation. That said, it isn’t hard to see how it could be considered inappropriate by conventional expectations and suspicious to police officers.
Knox admits she practised yoga techniques at the police station between interviews. She’s also admitted spending some of her time between interviews sitting on Sollecito’sknee.
Other students and mutual acquaintances told police that Knox’s initial response toKercher’s murder seemed disinterested and seemingly callous. When questioned about her apparent aloofness and “inappropriate” behavior Knox stated, understandably, that individuals deal with stressful situations in their own ways. She also said she was under immense stress and pressure and that she never intended to offend anybody or arouse any suspicion. Contrary to police claims, Knox also denies that, in addition to yoga, she also performed cartwheels while waiting to be interviewed.
As a result of Knox’s accusation regarding Lumumba, the bar owner was arrested. He spent two weeks in detention until his alibi (being at Le Chic throughout the night of the murder) was verified. He was released without charge and eliminated as a suspect. During the investigation, his detention and subsequent lawsuit against Knox for calunnia (an Italian form of slander prosecuted as a crime, not as a civil case) he incurred substantial legal fees. His business also suffered greatly. The negative publicity forced him to sell Le Chic to pay legal fees and business debts.
After successfully suing the Italian police for false imprisonment and the loss of his good name and business, Lumumba was awarded 16,000 Euros. His successful lawsuit against Knox brought further compensation when Knox was ordered to pay his legal fees for both his initial two weeks in jail after her false accusation and for his successful lawsuit for slander. The judgment required Knox to pay 62,000 Euros to Lumumba in damages and to serve three years in prison. The prison term was later reduced to time served after Knox won her initial appeal on the murder conviction. It is not known whether she has paid Lumumba.
If things were difficult for Lumumba they were about to get much worse for Knox and Sollecito. Sollecito had also changed his story. He now claimed that Knox had not been at his home for the entire evening and that he’d spent most of it alone using his computer. Changing his story did nothing to allay police suspicions, especially when police examined his computer and refused to accept he’d been using it on the evening of the murder. They also wanted to know why, after Knox’s texts with Lumumba, both Knox and Sollecito switched off their cellphones for three hours that coincided with the murder. Knox claimed she wanted to avoid Lumumba changing his mind and calling her into work that night. Investigators clearly didn’t believe her, although the response was reasonable.
By changing his story –and only making his own situation worse – Sollecito destroyed Knox’s original alibi. With those facts and Knox’s inappropriate behavior, Italian police stopped viewing them as witnesses to be interviewed. Now they became suspects to be interrogated and anything they said could be used against them in court.
The Ivory Coast Drifter
Rudy Guede
So far, investigators had Knox and Sollecito facing possible murder charges and Patrick Lumumba facing financial and personal ruin. There was only one other suspect to examine more closely. That suspect was Rudy Guede. He’d already had run-ins with Italian police on suspicion of burglary, threatening behavior involving a knife and was suspected of dealing cannabis and hashish.
Both Amanda Knox and Raffaele Sollecito came from law-abiding, respectable backgrounds. Rudy Guede's background was more turbulent and rather less law-abiding. Originally from the Ivory Coast, Guede, from age 5, had lived in Italy since 1991. His father had returned to the Ivory Coast in 2004 and left Guede in the care of friends, family and a local priest before he was adopted by a local family at the age of 15.
Guede became an underachiever, dropping out of college courses in hotel management and computing. At the time of the murder he had been fired from a job as gardener for his adopted parents who had also evicted him after finally losing patience with his lifestyle and behavior. Guede became a petty criminal, arrested more than once on suspicion of burglary and drug-dealing. His most recent arrest occurred only days before the murder when he was picked up for suspected burglary during which he allegedly threatened the homeowner with a long-bladed knife while escaping.
Police came to believe that Guede’s alleged drug-dealing was how he first met Knox and Sollecito, who both used marijuana freely. As he knew Knox and Sollecito, he also met Meredith Kercher. He first became acquainted with all of them only a couple of weeks before the murder. He knew Knox and Kercher’s address and had previously been found inside their flat. Residents didn’t know how he entered or why he was there. They did know that they had found him sitting asleep on the toilet. Some say he took a particular interest in Meredith Kercher.
Guede was suspected by police of having burgled a lawyer’s office by breaking in through an upstairs window. Only days before Meredith Kercher’s murder, the owner of a nursery school in Milan had caught Guede burgling the nursery school. When confronted Guede allegedly threatened the owner with a long-bladed knife to make his escape. According to Italian forensic experts working the Kercher case that knife was similar to the weapon used to murder Meredith Kercher.
On hearing the police wanted to question him, Guede promptly disappeared. He left Italy and turned up in Germany where he was promptly arrested as a fugitive and returned to Italy. Guede presumably thought leaving Italy put him outside the reach of Italian police. Within European Union member states there’s often considerable co-operation between national police forces. The European Arrest Warrant allows (and obliges) member states to return fugitives wanted in other EU countries. If Guede thought he was safe simply by entering a different EU country, he was wrong.
Guede was formally charged and held in preventive detention to await trial. Rather than plead not guilty and try clearing his name, Guede opted for a so-called “fast-track” trial which was his right under Italian law. Guede was returned to Italy on November 20, 2007. His trial began in February, 2008.
At trial, his claims of non-involvement in Kercher’s murder were thoroughly discredited by forensic and DNA evidence. His DNA was found all over Kercher’s bra strap. A bloody handprint was found on the bed under her body and it matched Guede’s handprint. Prosecutors could prove that he knew Kercher, that he had been present at the crime scene and that his DNA was found not only at the crime scene but also on and inside Kercher’s body.
Guede’s claim that Kercher had invited him into the flat and consented to sex was given no credibility by the panel of trial judges. On October 29, 2008 Guede was convicted of murder and sexual assault. He drew 30 years (later reduced to 16 years on appeal) and will soon be eligible for parole. It’s possible that he might be leaving prison before Knox and Sollecito’s cases are adjudicated.
Despite Guede being by far the most likely suspect, Knox and Sollecito were still regarded by prosecutors and police as prime suspects. With their changing, contradictory stories, seeming lack of verifiable alibis and Italian forensic experts claiming to have found solid evidence of their participation, including DNA evidence linking Knox to what prosecutors claimed was the murder weapon and linking Sollecito to the clasp of Kercher’s bra, it wasn’t long before they were both formally charged with her murder and held to await trial. Their situation looked bleak.
On November 8 they came before Judge Claudia Matteini. It was during an adjournment that Knox met her trial lawyers for the first time. Having met her lawyers only that day, Knox had no time to discuss her case with them or prepare a case for being granted bail. Judge Matteini denied bail for both Knox and Sollecito and ordered that both be detained for a year, long enough for a trial to be arranged.
Knox and Sollecito remained in jail until their trial started on January 16, 2009. They would be tried not before a jury, but before a presiding judge, a deputy judge and six lay jurors. The Italian system is based on the Code Napoleon, a different legal system common in Continental Europe. The Code Napoleon system isn’t used in the United States or the United Kingdom where a single judge and 12-person jury are the norm in criminal trials.
The First Trial of Knox and Sollecito
Their trial began before Presiding Judge Cristiano Massei, Deputy Judge Beatrice Cristiani and the six lay jurors at the Perugia Court of Assizes. The prosecution claimed that Knox and Sollecito teamed with Guede to attack, rape and murder Meredith Kercher, that the supposed burglary was faked by Knox and Sollecito (hence the easily-recovered stolen cellphones) and that the murder was either a group sex game gone wrong or the result of a feud between Knox and Kercher. The prosecution claimed that they had DNA evidence, that Knox and Sollecito had changed their stories under interrogation, that they had improvised a cover story and that Knox had falsely implicated Lumumba to protect their real co-conspirator, Rudy Guede.
The prosecution also alleged that Kercher couldn’t have been physically restrained by a single person and that Knox’s “inappropriate” behavior after the murder and at the police station suggested guilt.
A police crime scene photograph.
The physical evidence, according to the prosecution, was heavily in favor of Kercher being overpowered by more than one person. Prosecutors claimed that a knife found in Sollecito’s cutlery drawer was the murder weapon and that, on searching his flat, they noticed a strong smell of bleach which, police claimed, was evidence of the knife having been thoroughly cleaned after the murder. Guede’s shoe prints, fingerprints and DNA had been found all over the crime scene and, as prosecutors alleged he was a co-conspirator with Knox and Sollecito, that this too pointed to their guilt.
According to the prosecution case Knox performed the actual murder while Guede and Sollecito helped restrain the victim and fake the burglary. As evidence of there being more than one attacker they cited the fact that Kercher had no defensive wounds on either her hands or arms. Defensive wounds are very common on victims trying to escape an attacker armed with a knife. Their absence from Kercher’s body was a circumstantial piece of evidence used aggressively by prosecutors. They claimed that Knox had repeatedly banged Kercher’s head against the bedroom wall, forcibly gripped her face to restrain her, forcibly undressed her, repeatedly slashed her with a knife and finally stabbed her twice in the neck while Guede and Sollecito restrained Kercher. They also suggested that two knives might have been used to commit the crime, rather than just the one police had actually found. Proof of Sollecito’s involvement, according to the prosecution, came from his DNA being found on the clasp of Kercher’s bra, which was found at the scene having been cut away from the rest of the garment.
The defense case was, arguably, somewhat more solid. No shoe prints, clothing fibres, hairs, skin cells or DNA from Amanda Knox were found either on Kercher’s body or at the crime scene. Defense DNA experts claimed that DNA on the alleged murder weapon (alleged to be Sollecito’s by the prosecution) consisted of a trace too small to be identifiable as the victim’s. Claiming that police forensic experts had incorrectly collected, handled and analyzed the evidence the defense demanded the prosecution provide dates for the examination of each individual exhibit. If exhibits were examined on the same day (and examined incorrectly) then the risk of contamination was greatly increased.
Police experts refused to provide those dates and were not ordered to by the trial judges. The defense also asked the judges to order the evidence be turned over to an independent forensic and DNA experts for re-examination. They especially wanted new DNA tests and to confirm whether the victim’s wounds actually matched the knife claimed by prosecutors as being the murder weapon. The judges denied their request.
Prosecution claims that Knox and Kercher had a fractious and confrontational relationship despite being flatmates was also challenged by the defense. They produced their own selection of text messages between the defendant and the victim to support their claim that the two women were perfectly friendly and didn’t have any feud with each other.
Defense lawyers freely used their clients’ allegations against the police. Both defendants accused police of using brutality, threats, intimidation and frequent attempts to turn them against each other. Knox claimed that police deprived her of basic necessities during her initial questioning. They also claimed that police ensured Knox had no access to a lawyer, any representative of the American Consulate or Embassy or even a visit from her relatives until after she had been charged. The defense alleged police knew that Knox’s mother was due to arrive in Italy and, the day before she was scheduled to arrive, police increased their pressure on Knox in an effort to make her crack before her mother visited and could involve U.S. consular officials.
Another defense angle came from the initial interviews with the defendants. The absence of film or audio recordings neither proved nor disproved the defendants’ claims of police misconduct. But, according to the defense, police couldn’t disprove those allegations either. It was a somewhat shaky plank in the defense case that, bluntly speaking, came down to whether the judges believed the police or the defendants. At the original trial they clearly believed the police.
The defense was unsuccessful. On December 5, 2009 both defendants were found guilty. Knox received 26 years (with an additional fine and three years added later for falsely accusing Lumumba). Sollecito received 25 years. Both were sent to Capanne Prison to await their mandatory appeal to the higher court.
The Appeal
Italian criminal courts operate under a two-tier system as part of the Code Napoleon. Having been through the first grade level (primo grado) the judgments had to be confirmed or rejected at the second grade (secundogrado) after which they would officially be convicted. If confirmed by the second-grade court then their only option for appeal would be to the Court of Cassation (the Italian Supreme Court). Appeals there could only be brought over legal technicalities or mistakes made during the investigation and first-grade trial. Fortunately for the defendants their lawyers had a number of points to raise at the second-grade hearing.
The second-grade hearing is effectively a second trial. It began on November 24, 2010, presided over by Judges Claudio Hellmann and Massimo Zanetti. This time the judges did order independent reviews of the DNA and forensic evidence as originally requested by the defense team. The independent review was damning for the prosecution, police forensic experts and the police themselves. Sapienza University experts Carla Vechiotti and Stefano Conti, both widely respected within the European forensics field, reviewed the DNA-related evidence and submitted a report running to 145 pages. Much of their report detailed incompetence and carelessness on the part of detectives and police forensic experts.
Forensic expert Patrizia Stefanoni was castigated by independent analysts.
Junk Science
According to Conti and Vechiotti, the work of forensic expert Patrizia Stefanoni was bungled and flawed, failing to conform to internationally accepted standards of proficiency. They further accused Stefanoni of the much more serious error of giving evidence in court that was unsupported by her own laboratory findings. Vechiotti has also stated that, from the time she was chosen to perform the independent review, unspecified “important documents” were being withheld from her.
The independent experts stated that DNA found on the alleged murder weapon was of insufficient quantity to identify it as Kercher’s. They also quoted some of Stefanoni’s own testimony during the first-grade trial where she herself admitted that she perhaps should have double-checked her own scientific findings but hadn’t actually done so. Regarding the bra clasp used by the prosecution and confirmed as having Sollecito’s DNA, the experts noted huge errors in collection and handling of the clasp. On crime-scene pictures the clasp is obviously marked for collection and examination. It was also found some distance from the rest of Kercher’s bra.
By Stefanoni’s own admission police and forensic experts then forgot about the clasp and it wasn’t actually collected until 46 days after being found at the scene. Even then, the clasp itself was found in the middle of a pile of other objects found at the crime scene. If any of those objects had Sollecito’s DNA on them then being left in an unsorted pile for so long could easily have transferred his DNA to the clasp. Equally important, while Guede’s DNA was found all over the straps of the bra, Sollecito’s was found only on the clasp.
Anybody with even basic forensic knowledge is unlikely to consider such evidence as having huge evidentiary value. The risk of cross-contamination is simply too great. And how, if as the prosecution claims, Sollecito was physically restraining Kercher during the actual crime, could his DNA not be found on her clothing or her body? The experts also questioned the validity of the clasp as evidence when they requested it be re-examined. They were told that it was now too rusty and unfit for re-examination because it had been incorrectly stored by police forensic experts. This wasn’t as conclusive as test results proving cross-contamination, but it certainly bolstered defense claims that evidence-handling by the police forensic experts was substandard. Further proof of that claim was presented in the video footage of the clasp being recovered by the police forensic team themselves. That footage clearly showed the clasp being handled by Stefanoni wearing a visibly dirty latex glove.
Another important shot fired by the defense concerned DNA evidence used against Amanda Knox. According to the prosecution they had Guede’s DNA all over the victim and the crime scene. They had what they considered incriminating DNA from Sollecito on the bra clasp. What they didn’t have was any forensic traces of Amanda Knox on Kercher’s body or in her bedroom which was the crime scene itself. No shoe prints, fingerprints, hairs, clothing fibres or DNA from Amanda Knox were found either on Kercher’s body or in her bedroom.
The second-grade hearing could have confirmed the findings of the first-grade hearing. It could have rendered a verdict of “not proven” rather than a full acquittal. What the judges did was to quash the murder convictions against Knox and Sollecito while upholding Knox’s conviction for falsely accusing Patrick Lumumba. Even after they increased her fine and prison sentence for libelling Lumumba they still ordered her release, ruling her libel sentence had already been served while awaiting her murder trial and appeal. Both Sollecito and Knox – imprisoned for the last four years – were now freed. The judges’ ruling placed the police firmly in the firing line.
Their ruling was damning for police detectives and forensic experts. According to the appellate judges the verdict against Amanda Knox “Was not corroborated by any objective element of evidence.” They disputed the testimony of a supposed witness, a tramp named Curatolo, who claimed he saw Knox and Sollecito near the crime scene at the time of the murder. The judges felt that homeless heroin addicts are seldom the most reliable witnesses. They criticized the original trial judge, Massei, especially the fact that he used the word “probably” at least 39 times in his written ruling deciding their guilt.
They also criticized the police regarding their interrogations of Knox. They described her interrogations as being “Of obsessive duration,” stating that in their opinion her changes of story and fluctuating emotional state were signs of extreme mental pressure and stress rather than guilt. They also noted that, despite the police and prosecution claiming that Knox and Sollecito conspired with Rudy Guede, there was no evidence of phone calls or text messages between either Knox and Sollecito and Guede himself.
In short, although the second-grade finding didn’t explicitly state that Knox and Sollecito were either railroaded or convicted through incompetence that was the impression that was left.The appellate judges excoriated both the police and the prosecution’s forensic experts in their ruling. In a British or American case that would almost certainly have been the end of the matter. It wasn’t.
When Fatty Arbuckle was charged with manslaughter in the death of Virginia Rappe in 1921 he was the highest paid actor in Hollywood. The tabloid press went after him with a vengeance. Eleven years later, despite being exonerated by a jury, he died of a heart attack at age 46 as an outcast.
In today’s era of a scandal-a-day, the public furor over the case of Fatty Arbuckle and the death of Virginia Rappe seems somehow overblown and unbelievably melodramatic. The fact that Los Angeles crowds once shouted for the portly actor’s blood seems like a moralistic viciousness from a far more Puritan America. Nowadays, we’re far more cynical, and yet there’s something about the rise and fall of Fatty Arbuckle that still holds an inglorious luster.
Part of it is the age-old thrill of seeing great men brought low. The other can be located in Hollywood – a place that was synonymous with scandalous debauchery in the early 1920s. Before New York’s Daily News called him a “Beast from [sic] Gutter” in one of the paper’s typically tawdry headlines, Arbuckle (born Roscoe Conkling Arbuckle) was a rotund but agile funnyman who made silent comedy classics. A veteran of the vaudeville circuit, Arbuckle got his first break working for director Mack Sennett – the Canadian-born godfather of American slapstick comedy. Initially, Arbuckle was just another Keystone Kop working for Sennett’s Keystone Studios. Then, in the 1913 short film A Noise from the Deep, Arbuckle took the first ever pie-to-the-face. The person who threw the pie was actress Mabel Normand, a comedienne who would go on to make 17 films with Arbuckle as the beauty to his bumbling beast.
Besides Normand, Arbuckle’s other co-workers and peers included such luminaries as Charlie Chaplin (whose Little Tramp persona owed some of its success to Chaplin’s decision to wear Arbuckle’s large trousers for comedic affect) and Buster Keaton. Keaton and Arbuckle in particular became good friends and business partners, and in 1918, Arbuckle put Keaton in charge of Comique, a film company that Arbuckle had started with Joseph Schenck. Fatty transferred his share of the company because his gold lay elsewhere. In particular, in 1921, Arbuckle signed a three-year contract with Paramount. The contract paid him a million dollars per year, thus making him, for a brief time, the highest-paid player in Hollywood.
Despite his healthy bank account, Arbuckle needed a break. In his 1976 book The Day the Laughter Stopped, author David Yallop describes how Arbuckle’s schedule, which usually consisted of six films a year, some of which were shot concurrently with each other, was taking its toll on the often sickly actor. (Arbuckle’s greatest health problem stemmed from a carbuncle, which, after its lancing and painful draining, forced Arbuckle to take morphine in order to deal with the pain. In his 2013 book Room 1219: The Life of Fatty Arbuckle, The Mysterious Death of Virginia Rappe, and the Scandal That Changed Hollywood, author Greg Merritt alleges that this morphine use made Arbuckle one of Hollywood’s first drug addicts).
St Francis Hotel
The nadir of Arbuckle’s work schedule came when, right before Arbuckle’s planned vacation trip to San Francisco, the actor received agonizing burns on his buttocks. How this happened is not quite known (while Yallop claims that Arbuckle backed into a hot stove, the notoriously suspect writer and historian Andy Edmonds claims in Frame Up!: The Untold Story of Roscoe “Fatty” Arbuckle that the actor accidentally sat on a mechanic’s acid-soaked rag), but regardless the injury almost ended Arbuckle’s three-day vacation in San Francisco early. Eventually, Arbuckle was talked into checking in at the St. Francis Hotel by his friend and director Fred Fischbach. To sweeten the deal, Fischbach promised Arbuckle to get some illegal booze in ‘Frisco, which of course would take the actor’s mind off of his aching backside. Arbuckle agreed, and on Labor Day weekend in 1921, Arbuckle, Fischbach and the actor Lowell Sherman were the primary occupants of rooms 1219, 1220, and 1221.
Originally planned to be, in the words of Daily News writer Mara Bovsun, “an end-of-summer ‘gin-jollification,’” the party soon became a bacchanalia full of less than savory folks. Even though it occurred in the midst of that great failed experiment known as Prohibition, alcohol flowed like water at the party. Most Americans disliked the Eighteenth Amendment and its offspring the Volstead Act, so the open flaunting of illicit spirits made Fatty and company rather pedestrian. Virginia Rappe, whom history cannot confirm as either an invited guest or a party crasher, was the opposite of pedestrian, and along with her manager Al Semnancher and the shady Bambina Maude Delmont, Rappe decided to be the life of the party.
The Life of the Party
Virginia Rappe
Rappe was originally born a “Rapp,” but added an “e” on her surname because she claimed it sounded “more elegant.” It was all for naught, for Virginia’s unfortunate last name eerily presaged the grand accusation at the center of Fatty Arbuckle’s railroading. Like Arbuckle, whose own childhood was a maze of torment and abuse, Rappe’s early life can be summed up in one word: “tragic.” The illegitimate daughter of Mabel Rapp, Rappe was primarily raised by her grandmother after her mother’s death. As Rappe grew into her raven-haired good looks, she also grew up too fast and began engaging in a lifestyle that would ultimately lead to her death.
Before and during the trial, journalists of the yellow variety did their best to depict Arbuckle as an overweight beast – a latter day Bluebeard with a Kansas-sized paunch. In many ways, the newspapers took over where Arbuckle’s father had left off, and like the comedian’s old man (the party responsible for naming Fatty after his least favorite politician, the Republican party boss Roscoe Conkling) the newspapers of the 1920s did their best to demean and demoralize the once beloved screen idol. As part of this organized character assassination, the newspapers did their best to uphold Rappe as a virtuous and wholly innocent victim of Arbuckle’s deranged lust. She was the white virgin to Arbuckle’s black beast, and her dramatic death seemed perfect for self-righteous pearl-clutching.
In truth, Rappe was anything but virginal. Rappe was raised without a father figure in the bustling metropolis of New York, and as a result she pursued numerous sexual relationships at a tender age and without an awareness regarding sexual contraception. As a result, Rappe suffered from bouts of venereal disease, plus it was rumored that she had had several abortions before the age of 16. At the age of 17, Rappe became the mother of an out-of-wedlock child in the tradition of her own mother.
None of this seemed to drastically affect Rappe’s career; however, and by the time of the party at the St. Francis Hotel, Rappe was a bit-part actress and a relatively well-known artist’s model who had graced the cover to the sheet music for “Let Me Call You Sweetheart.” Rappe was also engaged to one Henry "Pathé" Lehrman, one of Sennett’s men and an occasional director of Fatty Arbuckle shorts. Lehrman’s working relationship with Arbuckle didn’t mean that the two were close. In fact, Lehrman and Arbuckle were known to have a long-running feud, and Rappe wasn’t above joining in. In “Fatty Arbuckle and the Death of Virginia Rappe,” Crime Library contributor Denise Noe claims that at one point Rappe called Arbuckle “disgusting and crude...vulgar and disrespectful to women.” While these words would come to haunt Arbuckle during three different trials, Noe sees them as the platitudes of Lehrman’s loyal lover.
Arbuckle’s opinions of Rappe are a little less known to history. Some sources claim that Arbuckle was smitten with the attractive actress, while others insist that Arbuckle didn’t care for either Rappe or her set. Furthermore, on September 5, 1921, Arbuckle didn’t want either Rappe or her friends drinking all of his liquor. By all accounts that’s exactly what they did, and after several hours of imbibing, Arbuckle found a naked Rappe screaming in his room.
Arbuckle claimed during his testimony that he, Delmont, and other guests initially placed Rappe in a tub full of ice. Next, the group called for the hotel doctor, who injected Rappe with a shot of morphine. In the morning, Rappe’s condition only continued to deteriorate, and finally, after three days of agony, Rappe was taken to a nearby hospital. On the fourth day, Rappe was taken to the Wakefield Sanitarium, an institution widely known for performing abortions. Finally, on Friday, five days after the party, Rappe died of peritonitis caused by a ruptured bladder.
Almost immediately, Delmont cried “murder.” According to her, during the early stages of the party, Arbuckle had grabbed Rappe and dragged her against her will into his bedroom. Delmont told the police that Arbuckle said: “I’ve wanted you for five years” just before closing the door. After a quarter of an hour, Delmont said that Arbuckle had reappeared as a sweaty, exhausted-looking man. Rappe had remained behind on the bed and told Delmont that: “I’m dying. He did it, Maude.”
From her vantage point, Arbuckle had raped the girl, and furthermore, the actor’s great weight had crushed her, thus causing her bladder to rupture. Years later, smut junkies like Kenneth Anger would claim that Arbuckle had penetrated Rappe with either a Coca-Cola or Champaign bottle, but at the time of the actor’s ordeal, Delmont’s nebulous accusation of rape was enough to effectively end Arbuckle’s career.
Even before he went to trial, Arbuckle was found guilty in the press. Unfortunately for him, Arbuckle’s case occurred during the height of the tabloid era and the birth of so-called Jazz Age journalism. Ever since June 26, 1919, when the Daily News debuted the tabloid format, American newspapers had given in to printing lurid and sensational headlines that came packaged with plenty of pictures. Arbuckle’s fame, his girth, and his profession all made him a perfect fall-guy for the media’s obsession with Hollywood’s moral rot.
On top of this, the death of Virginia Rappe was just another shocking case from the film world. Earlier, in 1920, the actress Olive Thomas had died after drinking a lethal quantity of mercury bichloride. The chemical compound belonged to her husband Jack Pickford, a handsome screen idol whose short life was ruled by scandal, drink, and drug abuse. Rumors had it that Pickford used the mercury bichloride to treat his syphilis, plus even more wagging tongues proclaimed Thomas’s death an act of suicide. Even though it was eventually ruled an accidental death, much of the American public believed Hollywood to be viper pit controlled by immorality.
Arbuckle’s trial, plus the concurrent scandal of the still unsolved murder of William Desmond Taylor, put Hollywood squarely in the sights of moral crusaders. William H. Hays, a former chairman of the Republican National Committee and the one-time Postmaster General, was eventually called in to be Hollywood’s in-house policeman and censorship board, and on April 18, 1922, Hays banned Arbuckle from making any more films. Although the ban was lifted in December 1922, the damage to Arbuckle’s career was irreversible.
The sad thing here was that Hays’s ban had been enacted on an innocent man. After three trials, which lasted from November 1921 until March 1922, Arbuckle was finally acquitted on all charges. In the first trial, Arbuckle was charged with manslaughter, but after giving convincing testimony on the stand, Arbuckle and his defense lawyer netted a hung jury, with 10 to two in favor of not guilty.
During the second trial, Arbuckle did not take the stand. Coupled with a generally poor defense, Arbuckle’s silence caused yet another hung jury, this time 10 to two in favor of conviction. During the third and final trial, Arbuckle once again took the stand, and after the prosecution’s star witness (Zey Prevon, a showgirl and model) was charged with perjury, the jury only took minutes to reach a decision of not guilty. Most of the jury’s time spent deliberating was actually put towards drafting an apology letter to Arbuckle, which the jury foreman read aloud:
Acquittal is not enough for Roscoe Arbuckle. We feel that a great injustice has been done him. We feel also that it was only our plain duty to give him this exoneration, under the evidence, for there was not the slightest proof adduced to connect him in any way with the commission of a. He was manly throughout the case and told a straightforward story on the witness stand, which we all believed. The happening at the hotel was an unfortunate affair for which Arbuckle, so the evidence shows, was in no way responsible. We wish him success and hope that the American people will take the judgment of 14 men and woman who have sat listening for 31 days to evidence, that Arbuckle is entirely innocent and free from all blame.
Despite his exoneration, Arbuckle was forever tainted as some kind of monster. During the trials, his films were banned across the country, while constant newspaper coverage did untold damage to his character and his reputation. But while Arbuckle’s life was being ruined, the newspapers were having a field day. William Randolph Hearst, the man in charge of the San Francisco Examiner and one of America’s first media moguls, once boasted that the Arbuckle case sold more newspapers than the sinking of the Lusitania.
Because of this undue media attention, the Arbuckle case attracted more than just readers. Various con artists and hucksters, along with the professionally outraged, all gained some notoriety because of the Arbuckle case. Delmont for a short time became a public speaker and a crusader against the social excesses of Hollywood, but her second career was cut short after it was revealed that her previous job included blackmail and extortion. In particular, Delmont was known to set-up famous people for the purposes of blackmail, and she may very well have intended for Rappe, a heavy drinker with a penchant for taking off her clothes while drunk, to seduce Arbuckle during the party.
Other colorful characters in the case included Lehrman, who used the case as a way to further his career, Semnacher, a small-time hood who changed his testimony halfway through the case, Gavin McNab, Arbuckle’s San Francisco defense attorney who later represented heavyweight boxer Jack Dempsey, Milton U’ren, the Assistant D.A. who was so dedicated to convicting Arbuckle that he charged Prevon with perjury after she refused to say that Rappe had incriminated Arbuckle in her presence, and a little known Pinkerton detective named Sam Hammett.
Before he took to calling himself “Dashiell,” Sam Hammett was a private detective in San Francisco with a serious case of tuberculosis. Despite his rapidly declining health, Hammett was hired as one of Arbuckle’s guards throughout the trials. Although the experience was only a small part of Hammett’s career as a detective, it nevertheless made an impression on the budding writer. On the one hand, Hammett claimed that: “The whole thing [the Arbuckle case] was a frame-up...arranged by some of the corrupt newspaper boys,” while on the other he openly loathed the portly star. In fact, writers such as the novelist Ace Atkins and the scholar Dr. William Marling have often claimed that Hammett used Arbuckle as the model for his obese villains such as Casper Gutman in The Maltese Falcon.
By the time that The Maltese Falcon was published in 1930, Fatty Arbuckle was no longer “Fatty Arbuckle.” Working under the pseudonym William Goodrich, Arbuckle spent the early ‘30s as a director of short comedies. Then, in 1932, Arbuckle signed a contract with Warner Bros. to star in a handful of two-reel comedies as “Fatty Arbuckle.” Although these six films were successful in America, the long shadow of Virginia Rappe’s death continued to haunt the actor, and when trying to show the film Hey, Pop! in the United Kingdom, the British Board of Film Censors cited the 1921 scandal as a reason for refusal.
On June 29, 1933, Arbuckle died of a heart attack at age 46. The once adored comedy star ended his life as an outcast: An innocent man suffering because of an unscrupulous media and an occupation’s bad reputation. Even though his nimble exploits and comedic timing make him the forefather of John Belushi and Chris Farley, Arbuckle will forever be associated with a three-day party in San Francisco. This is probably the greatest crime of all.
Mumia Abu-Jamal has been on death row since 1982. Over the years, as a result of his prison writings, the former radio reporter who prided himself on being "the voice of the voiceless" has attracted an astonishing level of national and international support that has turned the "Free Mumia" movement into the cause celebre of all 3,600 death-row cases in the United States. The Philadelphia Fraternal Order of Police and the slain officer's widow, Maureen Faulkner, doggedly lead the “Fry Mumia” side of the controversy.
In December of 2001 U.S. District Court Judge William H. Yohn Jr. overturned Abu-Jamal's death sentence, evoking images of Solomon's decision to cut the baby in half. While Judge Yohn's controversial decision erased the death sentence that had hung over Abu-Jamal for almost 20 years, that was all it did. Judge Yohn's ruling denied the 20 other defense claims of constitutional violations set forth in Abu-Jamal's habeas corpus petition, thus upholding Abu-Jamal's conviction for murdering Officer Faulkner on Dec. 9, 1981. Overturning Abu-Jamal's death sentence would normally have meant that Abu-Jamal would have been taken off death row and placed among the regular prison population for the duration of the appeal process. But in a particularly spiteful maneuver, Philadelphia D.A. Lynne Abraham requested that Judge Yohn stay the order lifting Abu-Jamal's death sentence. The judge agreed. As a result, Abu-Jamal – who turned54 on April 24, 2008 – remains on death row 22 to 23 hours a day on weekdays and 24 hours a day on weekends in a cell at the super-max State Correctional Institute in Greene, Pa., 50 miles south of Pittsburgh on the border of Pennsylvania and West Virginia. He is allowed approved visitors for one two-hour period per week, but must speak with them, in handcuffs, from behind one-inch thick Plexiglas.
In rendering his 272-page decision, Judge Yohn left the door open a crack for another federal appeal by certifying one of the claims advanced in Abu-Jamal’s habeas corpus petition. If Judge Yohn had not certified that one claim, Abu-Jamal’s appeals, for all practical purposes, would have been over. Barring an unlikely intervention by the U.S. Supreme Court or an even more unlikely clemency by a future governor of Pennsylvania, Abu-Jamal would spend the rest of his life in prison.
All that changed radically on Dec. 6, 2005 when a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued an order to hear arguments from Abu-Jamal’s new defense team on the claim certified by Judge Yohn as well as two others raised by the defense and one by the state.
Abu-Jamal’s new attorneys – led by Robert R. Bryan of San Francisco – appealed, as they were entitled to, the one claim Judge Yohn certified, but added several other claims of constitutional violations arising from Abu-Jamal’s trial and his Post- Conviction Relief Act hearing held in 1995 that they hoped the appeals court would consider. In a stunning victory for the defense, the Third Circuit agreed to hear arguments on two of those additional claims. One concerns the prosecutor’s summation to the jury during the guilt phase of the trial and the other the alleged bias of the judge who presided at Abu-Jamal’s post-conviction proceedings, Common Pleas Court Judge Albert Sabo, who was also Abu-Jamal’s original trial judge.
The claim that Judge Yohn had certified for appeal in 2001, known as a Batson claim, pertained to the prosecutor’s use of peremptory challenges to exclude blacks from the jury.
The Third Circuit also agreed to hear the prosecution claim challenging Judge Yohn’s overturning Abu-Jamal’s death sentence.
Robert Bryan, Abu-Jamal’s lead defense attorney, called the Third Circuit’s order “the most important decision affecting my client, Mumia Abu-Jamal, since the lower federal court ruling in December 2001,” revoking Abu-Jamal’s death sentence. Bryan, with over 35-years of experience in litigating death-penalty cases, said all three defense claims “are of enormous constitutional significance and go to the very essence of Mumia’s right to a fair trial, due process of law, and equal protection under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.” Hugh Burns, the Philadelphia D.A.’s office appellate chief, called the order a “major blow.”
The blow was so major that, after over 25 years on death row, the probability of Abu-Jamal being granted a new trial is now high. Two of the claims the appellate court agreed to hear regard prima facie violations of Abu-Jamal’s constitutional rights. At Abu-Jamal’s trial Prosecutor Joseph McGill told the jury in his summation that if they found Abu-Jamal guilty of first-degree murder that "there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final." This type of language undermines the jury’s need to find the defendant guilty beyond a reasonable doubt. He brazenly said this despite the fact that in an earlier capital case when he had used similar language to coax a jury to a death-sentence verdict with Judge Sabo presiding, the Pennsylvania Supreme Court had overturned the verdict. (McGill used nearly the same language during the sentencing phase of Abu-Jamal’s trial when he successfully argued for the imposition of the death penalty.)
On the other claim, the Batson claim, McGill did use at least 10 and most likely 11 preemptory challenges to exclude blacks from serving on Abu-Jamal’s jury. In a city with a black population of 44 percent at the time of Abu-Jamal’s trial, only three blacks were impaneled. One of those was dismissed – for violating jury sequestration – by Judge Sabo after the first day of testimony and replaced by a white male.
The other claim, that Judge Sabo was biased against Abu-Jamal during his Post-Conviction Relief Act hearings, is a judgment call the appellate court judges will make based on the transcripts from those proceedings and the briefs filed by opposing counsel on the issue. If the judges were to find such bias, amply demonstrated by Judge Sabo throughout the hearings, they could order those hearings reopened. Those hearings could well lead to a new trial for Abu-Jamal on numerous other grounds that Abu-Jamal’s new defense team could introduce there. And there will be no Judge Sabo presiding at these hearings. He died in 2002.
Chapter Two
Who Killed Officer Daniel Faulkner?
That Abu-Jamal's trial was, in so many different ways, a travesty of justice is irrefutable to his legions of supporters. And they are right: His trial was riddled with so many types of judicial and prosecutorial abuses that it was a sham from beginning to end. Judge Yohn's failure to overturn Abu-Jamal's conviction on legal and constitutional grounds in 2001 merely extended the sham.
But did Abu-Jamal murder Faulkner?
One of the most perplexing aspects of the Abu-Jamal case – for many of his supporters and all of his detractors – is that Abu-Jamal, in all his books and articles, radio essays, and his infrequent interviews with reporters, never gave his version of what happened the night Faulkner was killed. Not doing so was partly the advice of his counsel at the time, but mostly it seemed to stem from his conviction that because he was denied the right to represent himself at his murder trial that he would only tell his version of the events at a retrial in front of a jury of his peers. Another theory, advanced in a biography of Abu-Jamal written by Terry Bisson and published in 2000 entitled On a Move: The Story of Mumia Abu-Jamal, is that Faulkner shot him as he approached and he blacked out. The biography picks up the account just after Abu-Jamal got out of his taxi to come to his brother's aid.
[begin block quote]
He ran across the street. Was he yelling? He doesn't know. Doesn't remember.
The cop was facing him. He never heard a sound, but he knew he had been shot because something lifted him off the ground, almost gently, and he was in the air.
He knew. As a [Black] Panther he had expected it, imagined it, for years. It was almost anti-climatic. He waited for the sound. Then he saw the pavement rushing up. He thinks he cried out, because he knew he was going to hit hard, face first, because he couldn't make his arms work. Then everything went black, and he never felt the ground at all…
"What happened?"
Billy was upside down.
Mumia was looking up at him. "Are you okay?"
Billy was shaking his head, not okay.
People were running.
Not okay. Blood everywhere.
Then sirens, far away, then closer.
Mumia tried to sit up. Then there they were, the police, and it was just like before, just like '68, just like the [Gov. George] Wallace rally. Cops bending over him, cops snarling, kicking, careful of their shoes because of blood everywhere…
[end block quote]
If Abu-Jamal did not shoot Faulkner, then who did? Abu-Jamal's defense at trial was that one or more of the people who various eyewitnesses reported seeing run from the scene immediately after Faulkner was shot killed him. This hypothesis got scant weight at trial when one of the two witnesses the defense produced to assert it – a prostitute under intense pressure from the D.A.’s office – recanted her written statement to the police about seeing two black men flee the murder scene.
As early as mid-1989 the possibility of a shooter other than Abu-Jamal began to re-emerge when New York attorney Rachel Wolkenstein of the radical Partisan Defense Committee, who was working pro bono for Abu-Jamal on matters relating to his prison conditions, heard that a prisoner at Pennsylvania State Correctional Institute in Hunlock Creek, Pa. had information about Faulkner's murder. According to a declaration Wolkenstein filed in the Philadelphia Court of Common Pleas in 2001, she first interviewed Arnold R. Beverly at Hunlock Creek in 1989. She stated that Beverly told her he was present when Faulkner was shot and that Abu-Jamal had not shot Faulkner. Beverly told her that Faulkner was killed at the behest of Philadelphia police officers because he was interfering with police payoffs for prostitution and drugs in the Center City precinct where Faulkner was assigned. Beverly denied that he had shot Faulkner and refused to identify who did. He told her he would not testify about Faulkner's shooting, even if under subpoena.
Wolkenstein stated that Beverly named a black police officer by the name of Boston (whom she later confirmed to be Philadelphia Police Officer Lawrence Boston) as being involved in the arrangements to kill Faulkner and "that some police officers were on the scene to ensure the 'hit' went off as planned." She stated that Beverly further informed her that the prosecution's main eyewitness against Abu-Jamal, prostitute Cynthia White, "turned tricks" for the police. As time went by, Beverly would not be alone in this claim.
In 1990, Wolkenstein learned of William Singletary, a tow-truck operator who claimed to have been an eyewitness to Faulkner's murder. In a sworn deposition, Singletary testified that he witnessed Faulkner's shooting and that Abu-Jamal did not shoot him. Singletary, a cousin of former Chicago Bear linebacker Mike Singletary, said the shooter was a black male wearing a green Army coat who fled the scene immediately after the shooting. Singletary said he gave this account to the police hours after the shooting, but that the police officer taking his statement tore it up and forced him to sign a fabricated statement under threat of harm. Singletary would reiterate this claim at Abu-Jamal’s post-conviction relief hearing in 1995.
In March of 1999, Wolkenstein stated in her affidavit that she met with Beverly two additional times at an undisclosed address to interview him. At the first meeting, she stated that Beverly reconfirmed his prior account that Abu-Jamal had not shot Faulkner, telling her that he was also shot and wounded, and that he had bled at the scene. "He also told me that he wore a green Army jacket that night." In the second interview, "…Beverly confessed that he himself shot P. O. Faulkner. He told me that someone else fired the first shot that hit P. O. Faulkner [in the back], and then Beverly ran across the street and shot the officer in the face. He stated that Abu-Jamal arrived later and did not shoot anyone. According to Beverly, Mr. Abu-Jamal was shot by a police officer other than Faulkner."
On June 8, 1999, Beverly signed a sworn confession that he and another man, whom he refused to identify, had murdered Faulkner and that "Abu-Jamal had nothing to do with the shooting." In his sworn confession, Beverly reiterated that organized crime figures and police officers were involved in the plan to shoot Faulkner, and that police officers were present at the shooting.
Instead of being the major breakthrough revelation for Abu-Jamal's defense team, the Beverly confession would end up rupturing it. Lead counsel Leonard Weinglass, according to Wolkenstein's declaration, dismissed the confession "out of hand and offered the excuse that presenting this confession would risk 'losing credibility' with a federal court judge." (At the time, Abu-Jamal's federal habeas petition was before Judge Yohn.) Beverly’s extensive criminal record would provide any defense attorney with misgivings regarding his credibility. For a wide assortment of felonies, including burglary, theft, receiving stolen property, criminal conspiracy, and weapons possession, Beverly had been sent to prison six times, twice for up to 10 years.
Weinglass did not want anything to do with Beverly. In an attempt to get Wolkenstein to back off, Weinglass had Beverly take a polygraph exam administered by Earl Rawlings. Wolkenstein stated in her affidavit that the exam was inconclusive on some questions covered, but that Rawlings was not qualified to conduct a polygraph test and "performed an incompetent examination." She stated that Rawlings did conclude that "Beverly was being truthful when he said that he was present at the scene of the shooting and that Mr. Abu-Jamal was not the shooter."
Wolkenstein subsequently had Beverly re-tested by polygrapher Dr. Charles Honts, a nationally recognized expert in administering polygraphs. Honts reported in a sworn statement that "Beverly confessed to him during the polygraph examination and that the polygraph test results supported the truthfulness of Arnold Beverly's confession that he – and not Mumia Abu-Jamal – shot police officer Faulkner."
Despite the bombshell exculpatory evidence that Beverly's confession presented Abu-Jamal's defense team – now supported by Honts's polygraph of Beverly – Weinglass refused to use the confession as evidence of Abu-Jamal's innocence by either presenting it in a supplemental post-conviction petition in state court or using it in state court filings to renew motions for discovery, ballistic testing, and DNA testing of the physical evidence.
According to the controversial book Executing Justice: An Inside Account of the Case of Mumia Abu-Jamal, written by Daniel R. Williams and published in May of 2001 by St. Martin's Press, Weinglass refused to advance the Beverly confession because he agreed with Williams that Beverly's "story was insane." Weinglass brought Williams to Abu-Jamal's defense team in 1992, shortly after Abu-Jamal had named Weinglass to be his chief legal counsel. Abu-Jamal, claiming that the publication of the book was a breach of his attorney/client relationship, filed an unsuccessful suit to stop the book’s release. The prosecution, as predicted by Wolkenstein, would use passages from Williams's book in court filings to oppose the admission of the Beverly confession as well as to discredit preemptively other defense initiatives such as Singletary's new testimony.
In response to Weinglass's refusal to use the Beverly confession, Wolkenstein resigned from the defense team in July of 1999, as did attorney Jonathan Piper, a litigator at the Chicago office of Sonnenschein Nath & Rosenthal. Piper had worked pro bono for Abu-Jamal throughout the 1990s, drafting legal papers and providing legal and factual research assistance, including interviews with FBI sources active in investigating rampant police corruption in Philadelphia at the time of Faulkner's death.
Subsequent to the publication of Williams’s book in May of 2001, Abu-Jamal discharged Weinglass and Williams from his defense team.
Within days, Abu-Jamal's new defense team, consisting of Marlene Kamish of Chicago, Eliot Lee Grossman of Los Angeles, Michael Farrell of Philadelphia, and Nick Brown of the United Kingdom, issued three sworn affidavits: one from Abu-Jamal, one from his brother Billy Cook, and the June 8, 1999 affidavit from erstwhile hit man Beverly that Weinglass had refused to release. Abu-Jamal's affidavit, which was dated May 4, 2001, contained 34 assertions detailing his version of the events surrounding Faulkner's killing in sequential detail. He stated that he did not kill Faulkner and was himself shot in the chest by a police officer as he approached the scene. The shot caused him to collapse and to black out until other police arrived and began beating him. The full text of Abu-Jamal's affidavit:
[begin block quote]
I, MUMIA ABU-JAMAL, declare:
1. I am the Petitioner in this action. If called as a witness I could and would testify to the following from my own personal knowledge: 2. I did not shoot Police Officer Daniel Faulkner. I had nothing to do with the killing of Officer Faulkner. I am innocent. 3. At my trial I was denied the right to defend myself. I had no confidence in my court-appointed attorney, who never even asked me what happened the night I was shot and the police officer was killed; and I was excluded from at least half the trial. 4. Since I was denied all my rights at my trial I did not testify. I would not be used to make it look like I had a fair trial. 5. I did not testify in the post-conviction proceedings in 1995 on the advice of my attorney, Leonard Weinglass, who specifically told me not to testify. 6. Now for the first time I have been given an opportunity to tell what happened to me in the early morning hours of December 9, 1981. This is what happened: 7. As a cabbie I often chose 13th and Locust Street because it was a popular club area with a lot of foot traffic. 8. I worked out of United Cab on the night of 12/9/81. 9. I believe I had recently returned from dropping off a fare in West Philly. 10. I was filling out my log when I heard some shouting. 11. I glanced in my rear view mirror and saw a flashing dome light of a police cruiser. This wasn't unusual. 12. I continued to fill out my log/trip sheet when I heard what sounded like gunshots. 13. I looked again into my rear view mirror and saw people running up and down Locust. 14. As I scanned I recognized my brother standing in the street staggering and dizzy. 15. I immediately exited the cab and ran to his scream. 16. As I came across the street I saw a uniformed cop turn toward me gun in hand, saw a flash and went down to my knees. 17. I closed my eyes and sat still trying to breathe. 18. The next thing that I remember I felt myself being kicked, hit and being brought out of a stupor. 19. When I opened my eyes, I saw cops all around me. 20. They were hollering and cursing, grabbing and pulling on me. I felt faint finding it hard to talk. 21. As I looked through this cop crowd all around me, I saw my brother, blood running down his neck and a cop lying on his back on the pavement. 22. I was pulled to my feet and then rammed into a telephone pole, beaten where I fell, and thrown into a paddy wagon. 23. I think I slept until I heard the door open and a white cop in a white shirt came in cursing and hit me in the forehead. 24. I don't remember what he said much except a lot of "niggers,""black mother- fuckers" and what not. 25. I believe he left and I slept. I don't remember the wagon moving for a while and then it did [move] for sometime. 26. I awoke to hear the driver speaking over the radio about his prisoner. 27. I was informed by the anonymous crackle on the radio that I was en route to the police administration building a few blocks away. 28. Then, it sounded like [someone] I.D.'d [identified] as “M-l” came on the radio band telling the driver to go to Jefferson Hospital. 29. Upon arrival I was thrown from the wagon to the ground and beaten. 30. I was beaten again at the doors of Jefferson [Hospital]. 31. Because of the blood in my lungs it was difficult to speak, and impossible to holler. 32. I never confessed to anything because I had nothing to confess to. 33. I never said I shot the policeman. I did not shoot the policeman. 34. 1 never said I hoped he died. I would never say something like that.
I declare under penalty of perjury under the laws of the United States that the above is true and correct and was executed by me on 3 May, 2001, at Waynesburg, Pennsylvania. MUMIA ABU-JAMAL
[end block quote]
Like Abu-Jamal, Cook had never previously stated what he witnessed at the scene. Cook, whom Faulkner was in the process of arresting when the officer was shot to death, exonerated his brother, but he also asserted that a passenger in his car – his long-time street-vendor partner Kenneth “Poppi” Freeman – had admitted to him that he shot Faulkner as part of a conspiracy to kill the officer. Cook's affidavit was dated April 29, 2001. (Freeman died in 1985 under suspicious circumstances hours after Philadelphia police firebombed the MOVE house and destroyed 61 row houses in the process. His body was found bound, gagged, and naked in a vacant lot. The coroner listed his cause of death as a heart attack. He was 31. When asked at Abu-Jamal’s post conviction relief hearing if he knew the circumstances of Freeman’s death, his friend Arnold Howard answered, “My understanding is he was handcuffed and shot up (with drugs) and dumped on Grink’s lot on Roosevelt Boulevard, buck naked.”) The full text of Cook's affidavit:
[begin block quote] I, BILLY COOK, declare:
1. If called to testify as a witness in this matter I would competently testify to the following from my own personal knowledge: 2. On the night of December 9, 1981 I was with my partner Kenneth Freeman, my friend from childhood. 3. Mumia had stopped by at my stand [a vending stand in Center City] that night. He would do that periodically. Mumia had been robbed about a week before. 4. I left my gun locked up at my stand that night, but Poppi [Kenneth Freeman’s nickname] always carried his gun. It was a .38. 5. I probably was wearing a black knit cap, I had dreds and always tucked them in. 6. We had closed up late at night. 7. Kenny (Poppi) and I had hit a few bars. We were just unwinding. We used to do that all the time after we closed up the vending stand for the night. 8. We were headed along Locust. 9. Poppi had got some beer and gotten back in the car. 10. At Locust at about Juniper I saw flashing lights of a police car. He followed me for about a half a block and I pulled over behind another car in the first empty spot on the south side of Locust. 11. I had wooden bumpers on my car and they were supposed to be metal. I had been stopped for that but he never said anything about that or gave any reason to have stopped me. I never hit him. 12. I had never seen him before. I knew the cops that worked in the district where my stand was. Locust and 13th is an adjacent district but I didn't ever see him before. 13. I got out my car. Poppi stayed in the car in the passenger seat. I let him (the cop) know I was not happy. 14. After that we went back and forth verbal confrontation. He pulls out a stick or some kind of object and slaps me in the head three times. By that time he had me on the side of the car, I started bleeding profusely. So I go back to my car to get my paperwork. 15. I never raised my hand to the policeman. I may have gone to block him when he was hitting me. That's all. I am not that stupid. I never hit a cop. He hit me with a flashlight and I was bleeding but then he let me go back in my car. 16. After that I got in the car. I was in the front seat looking in the back seat. 17. There were people on the street. There always were in that area. The bars were supposed to close by two o'clock but the clubs stayed open later. Some until 5 o'clock. They served drinks anyway. 18. I can't say I recall where other people were and I can't describe where anyone was, but there were people milling about. I never saw a taxi that they later claimed was there. I don't really know how many people were on the street. But there were always people out there it didn't matter what time. It could be five in the morning and there would be people. 19. When I heard the first shot I was in the driver’s seat facing toward the back of the car looking for something in the back seat to give to the cop like an owner's card. I am not the organized type and I didn't keep papers in the glove compartment. The back seat had a lot of papers and things from the stand, teddy bears, stuffed animals. We sold all that kind of stuff. Like special stuff for the holidays like on Valentine's Day we'd have Valentines and we sold novelty items and artificial flowers. 20. When I had gotten in my car Faulkner was in front of the car by the hood where he had stopped me and frisked me. When I was in the car looking in the back, I heard gun shots and saw sparks but I didn't see him shot. I saw flashes of a gun out of the side of my eye. He was standing in front of the car but I didn't see him shot. I was facing the back of the car. 21. Out of my peripheral vision I knew, I could feel other people around but I can't say where they were. His car was behind mine and the policeman was standing on the street between my car and whatever car was parked in front of me. 22. When I first saw my brother, he was running. He was feet away from me. We hadn't made any plans to meet that night or anything like that and I didn't even realize that he came around that area there to pick up fares. He had nothing in his hands. I heard a shot and I saw him stumble. I didn't see who shot him. He was stumbling forward. 23. It is strange people told me later everything happened in a few seconds but I could never see it that way. It seemed like everything was happening at once, but it took a long time. I have tried over the years but I can't see it as a few seconds. It seems to me as if it was 45 seconds not three. 24. When I was looking in the back seat Poppi was still there and then I looked and Poppi's door was open. He had been in the passenger seat and I don't know which way he had gone. He left the area right after this happened. 25. Later Poppi talked about a plan to kill Faulkner. He told me that he was armed on that night and participated in the shooting. He was connected and knew all kinds of people. I used to ask him about it but he talked but never said much. He wasn't a talker. I didn't see Poppi for a while after that. 26. Poppi had been in Germany in the army. That night he was wearing his green army jacket. You know just a regulation army jacket. The jacket he always wore. He had been discharged. I don't know for what. 27. I got out. I wanted to run; maybe I could have gotten away. I even started to run. I did. But I couldn't run because of my brother. Not after I saw my brother down on the ground. 28. I spoke to him. I told him, "I'm here for you." I don't remember his answering, but I remember his groan. 29. I saw a gun on the street. It was in the gutter. I kicked it under my car. Before the cops came. 30. If they asked me something, I don't remember. I didn't answer them anything. I sure don't remember them reading me my rights. I knew [Police Officer] Shoemaker. He used to stop by my stand and sit there and smoke weed. His wife used come to my stand with him. 31. I think they took me away before they took Mumia or the cop. I remember them pushing me. But I can't remember whether I was in a paddy wagon or a squad car or whether I was sitting up or not. My mind was just not to talk. 32. When they had me in the police station they threatened to kill me and throw me in the river. 33. I have been afraid for my life since that night. I have been afraid to tell anything about what happened. Wouldn't you be? 34. They took me in a room. There were two officers black and white. I was saying things to give them something to chew on. 35. I finally came to my senses. I didn't like the whole idea of making a statement. They wanted me to sign a statement but I just wouldn't do it. I told them I wanted to see my lawyer. I didn't like it. So I just wouldn't sign. 36. I think I was in jail a day or two then they let me out on bail. 37. I had been living in Center City, but I couldn't stay there after it happened. I got help and moved out of my apartment in the middle of the night. And moved back in with my mother. 38. I remember [Attorney Anthony] Jackson coming to my house several times. My mother and sister were there. I don't remember him ever interviewing me. I just remember him trying to calm us. 39. I don't remember meeting with him anywhere else except at my mother's house. He never asked me to testify. [Billy Cook’s attorney] Alva advised me not to testify. My lawyer implied to me that if I came to court I would also be charged with murder. I had to pay him $1,000. 40. Alva was Freeman's lawyer too. 41. If they (Jackson) had said they wanted me to testify I would have done it but they never did. 42. At PCRA, I was expecting to testify. Leonard [Weinglass] and Rachel [Wolkenstein] were giving me cross signals. Rachel wanted me to testify but Leonard didn't. So I didn't testify. In 1999, I was asked to testify again and I said I would. 43. I will testify now. 44. Mumia was not holding a gun. Mumia never intervened in anything between me and the cop. 45. I had nothing to do with the shooting or killing of the police officer. My brother, Mumia Abu-Jamal, had nothing do with shooting or killing the policeman.
I declare under penalty of perjury, under the laws of the State of Pennsylvania and the laws of the United States of America, that the above is true and correct and was executed by me on 4-29-01 at Philadelphia, Pennsylvania.
BILLY COOK [end block quote]
Beverly's affidavit was even more astounding – and in various ways. It stated that he and another man whom he refused to ever identify – presumably Kenneth Freeman – were hired by the mob to murder Faulkner because Faulkner had been cracking down on prostitution, gambling, and drug activities in the area. Beverly stated that his unnamed accomplice was the first to shoot Faulkner – shooting him in the back – but that he was the one who stood over Faulkner and shot him in the face at point-blank range. He said Abu-Jamal “was shot shortly after that by a uniformed police officer who arrived on the scene.”
The problem with Beverly’s account, just as Weinglass viewed it, was that it was filled with improbabilities. Although it contained some nuggets of telling detail about Faulkner’s shooting – much in the same way that Singletary’s did – credible eyewitnesses Michael Scanlan and Robert Harkins saw no such unfolding of events. They each saw Abu-Jamal running toward Faulkner while the officer was still standing.
Was Faulkner the FBI informant that Beverly, in his affidavit, said he was, and that Cook, in his affidavit, referenced Freeman as saying he was? It seems probable that he was. A sophisticated “Topcon”camera, the type used then by the FBI in surveillance, was retrieved by police from Faulkner's patrol car after his shooting and turned over to the lead detective on the case. In Rachel Wolkenstein’s 2001 affidavit, she stated that in 1998 she interviewed Donald Hersing, whom she identified as the FBI’s confidential source during its 1981-1982 investigation of Center City police corruption, and he “confirmed that corrupt police were very concerned about possible police informants in the winter of 1981-82.” Hersing operated two Center City nightclubs that were being extorted by high-ranking Philadelphia police officials.
Another strong indication that Faulkner was an FBI informant was, according to Wolkenstein in her affidavit, was information uncovered by her colleague Jonathan Piper when he spoke with the lead federal prosecutor in the corruption case against John DeBenedetto, the head of the Central Division (Sixth Precinct) where Faulkner worked. Wolkenstein stated that the federal prosecutor told Piper “that Philadelphia police officers were sources in the investigation, including one source who had a brother who was also a police officer.” When Maureen Faulkner testified at the beginning of the trial, McGill referenced her husband having a brother who had “worked for the police.”
Wolkenstein also stated in her affidavit that George Sherwood, the FBI agent who oversaw the bureau’s crime squad in Philadelphia and was involved in the investigation of Sixth Precinct corruption, had subpoenaed Faulkner’s Army records earlier in 1982. She said former FBI agents advised her that “the most plausible explanation for this was that Faulkner was an informant, confidential source or an investigation target.”
Wolkenstein stated that Sherwood “advised our investigator that unless the FBI had an investigative interest in a matter the FBI would not have assisted another agency (including the district attorney or the U.S. attorney) with the retrieval of Officer Faulkner’s military records.”
She further averred, “FBI records on Daniel Faulkner disclosed an FBI-PH airtel [telex] to the director [William H. Webster] dated 12-30-81 that no written summary of the case was being prepared because of the ongoing criminal investigation [into Center City police corruption] and pending legal litigation.” Wolkenstein stated that former FBI agents she interviewed about the order for no written summary of Faulkner’s death found it “highly unusual.” Another curious item that appears in Faulkner’s FBI file after his death is the sentence, “Philadelphia [FBI office] strongly recommends letter to wife [Maureen Faulkner] from director.”
If Faulkner were killed because he was a police informant, he would not have been the first or the last Philadelphia police officer during the early 1980s to die under circumstances suggesting a directed “hit.” Officer James Mason was shot to death by a sniper in May of 1981. Four years later, Officer Thomas Trench was executed in his police car when a gunman shot him in the face at point-blank range through the open driver’s window, indicating that Trench knew his assailant.
Chapter Three
Frank Rizzo
To step back and attempt to understand the Mumia Abu-Jamal case it is necessary to consider Frank Rizzo's Philadelphia as well as the small, rag-tag, back-to-nature group called MOVE that Rizzo detested and wanted to destroy. Over time, Abu-Jamal's fate became inextricably tied to MOVE’s.
Rizzo was not just a lightning rod for racial strife. He built his career on it, ascending from beat cop, to precinct captain, to commander, to police chief (1967-1971) to mayor (1972-1979), promising along the way to make "Attila the Hun look like a faggot." Despite his bravado, Rizzo was less than willing to enforce the law when it came to corralling the high-profile mobsters who acted with virtual impunity during his long career. “…on Frank Rizzo’s watch, the South Philadelphia mob grew unabated,” wrote Sal Paolantonio in his mostly fawning biography of Rizzo entitled Frank Rizzo:The Last Big Man in Big City America, published in 1993.
For his willingness to wield a nightstick early in his career, his fellow officers nicknamed him “The Cisco Kid.”
Blacks called him Rizzio. To many of his fellow Italian-Americans in South Philly he was "The Bambino." To Paolantonio and other admirers he was simply “The Big Man.”
In On a Move, Bisson recounted a classic Rizzo display that occurred in 1967, during Rizzo's first year as police chief, when 3,000 black high school students marched on the Board of Education Building to demand black studies be included in the curriculum. Rizzo, like George Wallace at the University of Alabama, stood in the doorway as the students approached. Then he shouted his order to the police: "Get their black asses!" Police waded in among the young demonstrators with nightsticks, injuring dozens of students and beating 15 students so severely that they had to be hospitalized. While no police officer would be charged or disciplined for the assault, citations for resisting arrest and disorderly conduct were handed out to many students. Rizzo denied he had given the order to assault the students until he listened the next day to himself say it on videotape at television station WFIL played for him by reporter Larry Kane. “When he saw that he had said it, he just turned his head and left,” Kane said in an Inquirer interview.
Under Rizzo, police lawlessness was so commonplace and pervasive that the U.S. Justice Department sued the city's entire police force for civil-rights violations in 1979. A federal court dismissed the suit on jurisdictional grounds. Later, President Carter and the majority of Philadelphians would come to view Rizzo as a national embarrassment. By the late 1970s police graft was so intertwined with underworld activities that the Philly Police Department, particularly the Center City precinct to which Faulkner was assigned, was the target of at least three ongoing FBI probes that would result in the indictments and convictions of more than 30 Central Division Philadelphia police officers, including Police Inspector Alfonso Giordano, the ranking officer at the scene when Abu-Jamal was arrested for Faulkner's murder.
There have always been a lot of skeletons in the City of Brotherly Love’s closet. As Frederick Douglas wrote in 1862, “There is not perhaps anywhere to be found a city in which prejudice against color is more rampant than in Philadelphia…It has its white schools and its colored schools, its white churches and its colored churches, its white Christianity and its colored Christianity…and the line is everywhere tightly drawn between them.”
Philadelphia remains, essentially, a city of ghettos. Its enormous inner-city black slums are hemmed in by a series of ethnic neighborhoods that stretch out to the south and east in miles and miles of nearly identical row houses. Further removed are the neighborhoods to the west, and beyond them, just outside the city's limits, the pristine suburbs roll, one after the other, along the storied Main Line.
In Rizzo, the Italians and the various Slavs, the Irish, and the Germans had their man who was more than willing to stand up to the expanding black population as it encroached on the boundaries of the city's ethnic neighborhoods. MOVE's ramshackle house in previously all-white West Philly would be the spot where Rizzo would draw a line in the sand.
Chapter Four
MOVE
In a certain universal sense, the group calling itself MOVE, from the early 1970s up to the current day, has acted like a vortex into which have flowed all of modern civilization’s troubles.– Robin Wagner-Pacifici, Discourse & Destruction: The City of Philadelphia versus MOVE
Rizzo didn't create MOVE, but he might as well have in the sense that every despot needs, in fact demands, a foil. In MOVE, Rizzo had the perfect one. The more he oppressed the group, the stronger, more determined and politically savvy it became; the more he tried to destroy MOVE, the more he exposed his own lawlessness, causing his own career to fall into sunset. When term limits barred him from seeking the mayoralty a third consecutive time, he put his political career to a vote by spearheading a special referendum in 1978 – in the wake of the Powelton MOVE debacle – to alter the city charter. In a massive denunciation, Philadelphia voters told Rizzo eight years was enough, rejecting the referendum 66 percent to 34 percent. “Sixty-six percent of the city’s voters said no to charter change, no to Frank Rizzo, mayor for life,” wrote Paolantonio. “The winners rejoiced as if the walls of totalitarianism had been pulled down.”
Vincent Lopez Leaphart founded MOVE in the early 1970s in Philadelphia and subsequently changed his name to John Africa. Leaphart, in his early 40s at the time, was, like Rizzo, a high school dropout. I.Q. tests at age 7 and 15 revealed scores of 84 and 79 respectively. At age 15 he transferred to a school for students with learning disabilities, only to drop out the following year. At age 17 he was arrested for armed robbery and auto theft. Drafted in 1952, he served two years in the Army, one of them in Korea. Like his father, Leaphart made what living he did as a handyman. In 1966 his wife of five years, Dorothy, brought charges against him for striking her, but the case was dismissed. They divorced the next year.
How Leaphart, who could barely read and write, was able to take on the messiah role he would carve out for himself is a matter of great mystery. His hold over his followers was similar in many respects to the incredibly magnetic pull other cult leaders such as Jim Jones and David Koresh had on their disciples. To this day – more than two decades after his gruesome death at the bombed-out MOVE row house where his beheaded corpse was found with buckshot in both its chest and buttocks – past and present MOVE members venerate him. “Long Live John Africa!” is their mantra.
In 1971 Leaphart moved into the Powelton Community Housing Project – known simply as “The Co-Op” – in the Powelton Village section of West Philadelphia, adjacent to Drexel University. This integrated neighborhood was a haven for free thinkers and ‘60s-style radicals, home to students and faculty from both Drexel and the University of Pennsylvania. Here Leaphart befriended Donald Glassey, a recent master’s graduate in his early 20s from the School of Social Work at Penn. Together, with Leaphart dictating and Glassey taking notes, the two authored in a year’s time what would turn out to be Leaphart’s “naturalistic” philosophy, The Book of Guidelines. Later, this 300-typewritten page manifesto would be known as The Teachings of John Africa and become the framework of the MOVE movement.
Less than two years after Leaphart moved into The Co-Op, its board began eviction proceedings against him for his failure to fumigate his apartment, the source of a major roach infestation now plaguing many of his neighbors. To Leaphart’s naturalist view, roaches and all living things were God’s children, no different than humans.
When Glassey purchased half of a cavernous three-story Victorian house in Powelton in the spring of 1973, he allowed Leaphart – who now referred to himself as John Africa – to move in, bringing with him his sisters Louise James and LaVerne Sims, and their children, as well as a pack of dogs who followed him around and earned him the nickname “Dog Man” in the neighborhood. At first the Leapharts referred to themselves as the American Christian Movement for Life, but soon dropped the references to American and Christian, settling on MOVE. By the mid 1970s there were as many as 30 or 40 MOVE members. They made money by washing cars in the street in front of the house, doing home repairs in the neighborhood, cutting wood, and, in season, selling watermelons and fruits from the front yard.
Most MOVE members were in their 20s and black, but a few were young white women looking for a family to belong to, for something to believe in. In Burning Down the House: MOVE and the Tragedy of Philadelphia, a white teenaged member, Jeanne Africa, is quoted as saying she joined MOVE to acquire “a solid, secure family.” She said John Africa “gave us a lot of solutions to problems we had in The Lifestyle. We had people who were on drugs, he got them off drugs. He was like a messiah.” The teachings of John Africa forbid the use of drugs.
At any one time there could be up to 30 or more MOVE members living in the Powelton house, including small children and infants. MOVE members didn't marry, but monogamous relationships were the rule. Pregnancies were common. In Burning Downthe House, the authors John Anderson and Hilary Hevenor describe MOVE’s approach to childbearing: “Progeniture was the order of the day at Headquarters. Sexual potency on the part of MOVE’s men and childbearing on the part of its women were encouraged as part of ‘the natural order of life’…MOVE women were expected not only to bear many children, but to give birth naturally, licking their babies clean, biting off the umbilical cord with their teeth, then eating it.”
John Africa’s grand experiment was to have MOVE children grow up free of the addictions of the “System lifestyle.” No school, no TV, no clothes in summer, and a diet solely of raw fruits and vegetables. There would be no “Distortion Days” for the children like there were occasionally for MOVE adults, days when the adults could gorge themselves on all the junk food and meat they wanted. “Children were considered central figures in the MOVE organization. Babies did not diaper, but defecated in the yard along with the animals MOVE kept,” wrote Robin Wagner-Pacifici.
In a pamphlet MOVE published in 1996 to mark its 25th anniversary, MOVE stated its mission:
[begin block quote]
MOVE's work is to stop industry from poisoning the air, the water, the soil, and to put an end to the enslavement of life – people, animals, any form of life. The purpose of John Africa's revolution is to show people how corrupt, rotten, criminally enslaving this system is, show people through John Africa's teaching, the truth, that this system is the cause of all their problems (alcoholism, drug addiction, unemployment, wife abuse, child pornography, every problem in the world) and to set the example of revolution for people to follow when they realize how they've been oppressed, repressed, duped, tricked by the system, this government and see the need to rid themselves of this cancerous system as MOVE does.
[end block quote]
It is beyond ironic that the rebellious MOVE cult took hold in the city William Penn founded as a Quaker colony in 1681. Penn’s bronze statute – a beacon to liberty and tolerance – sits atop Philadelphia’s ornate City Hall. Penn, just as MOVE would do three centuries later, issued tracts, lectured in public, got arrested for unlawful assembly, and scorned courtroom decorum. In 1670, Penn was imprisoned for “declining to doff his hat in court, for further unauthorized preaching, for refusing to take an oath of allegiance to the Crown,” according to The First American – The Life & Times of Benjamin Franklin written by H. W. Brands in 2000. To rid England of the young, highborn firebrand, King Charles II granted Penn a large tract of land west of New Jersey to settle a debt he owed Penn’s recently deceased father.
A passage that could have been included in The Teachings of John Africa was written in a letter to a friend by Ben Franklin in 1764: “As long as I have known the world, I have observed that wrong is always growing more wrong, till there is no bearing it, and that right, however opposed, comes right at last.”
Characterized by dreadlock hair and the adopted surname Africa (“Africa” for the original homeland of all humankind), MOVE’s members were controversial, confrontational, belligerent, and profane, calling their detractors "motherfuckers." The term “motherfucker” – particularly when MOVE members ranted over loudspeakers or bullhorns – would often be used three or four times in one sentence, in sentence after numbing sentence. MOVE members justified this obscenity by arguing that the real obscenity is the system that allows racism, exploitation, and injustice to flourish. "If our profanity offends you, look around you and see how destructively society is profaning itself. It is the rape of the land, the pollution of the environment, the betrayal and suffering of the masses by corrupt government that is the real obscenity."
According to the MOVE pamphlet, MOVE members saw themselves as "pilgrims with bullhorns" and their Powelton Village house as their Mayflower. MOVE picketed pet stores, circuses, veterinary offices and the zoo ("Let the animals go free!"), challenged visiting celebrities to noisy debates, called Jane Fonda a racist and Jesse Jackson a liar. They took in the stray cats and dogs in the neighborhood, accumulating a pack of more than 30 unvaccinated dogs that roamed the premises. Although MOVE members were vegetarians, they fed their dogs with chunks of raw meat thrown into the yard. They also let their garbage pile up, "composting" in the front yard, a magnet for rats, termites, cockroaches and swarms of insects. All life forms were welcome at the MOVE house. They were the neighbors from hell.
The Teachings of John Africa prohibited bathing with soap and proscribed that men and women alike grow their hair to the fullest in “natural” length dreadlocks. The uniform was unisex as well: blue jeans, blue denim jackets, and heavy-soled men’s boots. Members were encouraged to chew garlic for its natural medicinal value.
Anderson and Hevenor described MOVE’s Powelton house this way: “The ramshackle headquarters at 309 N. 33rd in Powelton was turned into a compound. The whole of the front lawn was made into a stage for MOVE’s drama. A wooden platform extended from the front porch all the way to an eight-foot high outer fence. Electric bullhorns were mounted in treetops, and the neighborhood was treated to frequent lectures via the powerful sound system. Extemporaneous reading from The Teachings of John Africa blared through the night and into the early morning hours. Neighbors who dared complain soon found themselves denounced openly, loudly, and obscenely. Under such circumstances, powerful drama unfolded almost daily on North 33rd Street.”
MOVE became the butt of many cocktail-party and local news broadcast jokes. Most Philadelphians readily bought the news media's version of MOVE as urban savages. By 1975, enough neighbors had complained to the city government about the stench emanating from MOVE's property that the Department of Licenses and Inspections had to respond. Later that year, the city filed a civil suit against MOVE to evict the group from its property. MOVE appealed to the State Supreme Court. The case would drag on for three years until Rizzo came up with his ultimate solution.
By the mid-1970s, MOVE was appearing in public with increasing frequency, demonstrating with bullhorns at political rallies, public forums, and media offices. MOVE, inevitably, made police abuse a focal point. Rizzo, now mayor, responded predictably: The police began to break up MOVE demonstrations and arrest MOVE members on disorderly conduct charges or other misdemeanor violations such as obscenity and failure to disperse. MOVE cases jammed the Philadelphia courts. During a seven-month period in late 1973 and early 1974, the Inquirer reported, 40 different MOVE members were arrested 150 times. Some were sentenced to several years in jail.
The boiling point in the MOVE/police relationship was reached on Sunday, March 28, 1976, when seven jailed MOVE members were released in the afternoon and arrived at the Powelton house around 4 p.m. A noisy celebration carried on into the late evening until neighbors called the police to complain. Upon their arrival, Chuck Africa cursed the police. “Officer Daniel Palermo told reporters that as he was walking back to his car, a brick sailed through the air and caught him in the back of his head. More bricks flew…Bedlam followed,” Anderson and Hevenor reported in their book. Janine Africa told the authors “how the police had drawn their guns and billyclubs and begun to beat everyone present. The police, she said, ‘were going crazy,’ swinging their nightsticks, pushing and shoving the MOVE women away in order to get at their men. When Janine, the baby Life in her arms, tried to shield Phil (Africa), she too was pushed, then fell heavily to the ground. After that, the ‘cops stepped all over me an on me.’ Life Africa lay crushed to the earth.”
Six MOVE men – including three who had been freed from jail that day – were arrested and charged with aggravated assault, riot, resisting arrest, and reckless endangerment. Six wounded Philadelphia police officers were taken to the hospital.
The next morning, MOVE held a news conference at its compound. One MOVE member displayed a broken, blood-stained police nightstick and a police officer’s blue hat. Janine Africa told reporters that her three-week-old son, Life Africa, had been stomped to death on the floor after police knocked her down while holding the baby. “Police Department officials denied the story and hinted strongly that no such child as Life Africa had ever existed,” reported Anderson and Hevenor. “There were, after all, no hospital records of the child’s having been born.” [All MOVE children were home birthed.].
To prove the three-week-old baby boy’s death to the media, MOVE invited a Philadelphia Inquirer photographer and reporter and several local politicians to dinner at their headquarters several days later. After the meal, the guests were shown the baby’s corpse in a shoebox. The guests reported that the stench from the box was overwhelming.
A few weeks later, according to Bisson’s biography, Abu-Jamal interviewed an eyewitness, an old man who had watched it all from a window across the street. "I saw that baby fall," he said. "They were clubbing the mother; I knew the baby was going to get hurt. I even reached for the phone to call the police, before I realized that it was the police. You know what I mean?"
No chargers were filed against the police officers involved in the baby's death. Instead the D.A.'s office pursued prosecution of the six MOVE members arrested that night. Federal authorities informed MOVE that they would investigate the baby’s death, but would require an autopsy to do so. “The MOVE people demurred,” Anderson and Hevenor reported. “Their organization was opposed to the perverted work of scientists and doctors.” Instead, MOVE filed a $26 million civil suit against the city.
By 1976 hundreds of MOVE cases were clogging Philadelphia's justice system, preventing hundreds of non-MOVE related cases from coming to court on time. “Thanks to MOVE, an already overloaded court system had virtually stalled,” the Inquirer reported. To deal with this backlog, court administrators began dismissing numerous MOVE cases.
But three MOVE members were put on trial on charges of assault and resisting arrest in 1976. Robert, Conrad, and Jerry Africa – following the dictates of John Africa – refused to participate in their own defense, ignored courtroom decorum, and were eventually barred from their own trial. Common Pleas Judge Paul Ribner, who would later handle the preliminary hearings in Abu-Jamal's murder trial, tried them in absentia, found them guilty and sentenced them to long prison terms.
By 1977 most MOVE efforts were directed toward getting the three released. On May 20, 1977, after MOVE member Chuck Sims Africa was arrested earlier that day when police stopped his car and found a gun and ammunition in it, MOVE orchestrated its first major confrontation with the police. From a platform recently erected outside its house, various MOVE speakers, wearing khaki, army-style uniforms, demanded over the loudspeaker system the release of their “political prisoners” and an end to the violent harassment by the city. A crowd formed. When the police began arriving, MOVE members brandished firearms – sawed-off shotguns, pistols, rifles, and clubs. This display brought SWAT and Stakeout units. For nine tense hours, some 200 police surrounded the compound and trained an arsenal of weaponry on the front porch. An unidentified MOVE member took the microphone and warned the police, shouting out “the only way they will come in our headquarters is over our dead bodies. If those motherfuckers come in here, they’re going to have to kill everyone in here to do it.”
At 10:30 p.m. MOVE members took their weapons back inside and Police Commissioner Joseph O’Neill ordered the police to disperse.
“The May 20, 1977 confrontation gave MOVE the kind of credence that it had never possessed. News out of Powelton now played on front pages of local newspapers, and Philadelphia television stations often began their broadcasts with MOVE coverage. In a single’s day time, MOVE had become a Story. The possibility of violence commanded attention as no amount of bullhorns and pickets ever could,” Anderson and Hevenor reported.
The confrontation now brought round-the-clock police surveillance to the compound that would continue unabated for the next 10 months.
Four days after the confrontation, Judge Lynne Abraham, now the Philadelphia district attorney, issued 11 warrants for MOVE members on riot charges and "possession of an instrument of crime." Included in the warrants was one for Chuck Sims Africa. The gun taken from his car earlier on May 20 was traced to the gun shop where it was purchased. Records there showed that Leaphart’s old friend, Donald Glassey, had purchased two shotguns and 200 rounds of ammunition eight weeks earlier. Glassey was arrested on June 3 and charged by the U.S. Attorney’s Office with falsifying information on the firearms forms. Unable to make the $25,000 bail and facing a possible five-year prison sentence, Glassey “turned.” On July 21 – in exchange for a reduced sentence, a recommendation of early parole, and a place in the Federal Witness Protection Program – he led federal agents to two cars he had stocked with most of MOVE’s weapons – guns, bombs and ammunition – that he had collected from various MOVE locations to set up the bust. As a result of the bust, federal arrest warrants were issued against Leaphart and Alphonso (Mo Africa) Robbins. Leaphart and Robbins went underground for the next four years until their arrest in Rochester, N.Y. Delbert Orr Africa became MOVE’s interim leader.
One purpose of the 24-hour watch the police set up around the MOVE house was to arrest members when they came off the property. Sue Africa left the premises and was apprehended a few blocks away and jailed. The other members remained at the house as months passed. (MOVE’s $26 million civil suit against the city in connection with the March 28 death of Life Africa and other alleged police brutalities was dismissed during this period when the standoff prevented MOVE members from attending a hearing.)
Various community mediators tried to broker a deal between the city and MOVE to end the standoff, but MOVE’s demand for the release of Sue Africa and the three MOVE members sentenced to prison by Judge Ribner always brought these discussions to an impasse
The now nearly yearlong standoff was a major PR loser for the macho mayor. In March 1978, Rizzo decided to starve MOVE out by ordering the water and electricity to the MOVE house cut off and the police to set up numerous sandbagged sniper posts. “Police covered a truck with sandbags, armed it with machine guns, and pulled it up before MOVE headquarters. They stationed sharpshooters in the surrounding buildings. This development heightened the crisis and precipitated a new flurry of intermediary efforts,” reported Hizkias Assefa and Paul Wahrhaftig in their book The MOVE Crisis in Philadelphia: Extremist Groups and Conflict Resolution published in 1990. The police established checkpoints, sealing off a four-block area. Rizzo boasted that the perimeter was so tight "a fly couldn't get through."
With bullhorns and loudspeakers at the Poweltown house, MOVE members mocked the city government for spending thousands of dollars a day on police overtime just to stand around and listen to MOVE decry the police and spew revolutionary rant. The media reveled in the street theater, making the Rizzo vs. MOVE confrontation a staple of daily news coverage.
For the next two months, the city’s quarantine of MOVE continued with great inconvenience to the neighbors who were now forced to drive around blockades and show I.D. coming and going to their homes. The Philadelphia Daily News reported that city spending for police overtime had passed the $1 million mark. Area residents held a massive demonstration on Sunday, April 4, 1978, when several thousand ringed City Hall to protest the police blockade at the MOVE house. Rizzo had accomplished the near impossible in making MOVE the object of public sympathy.
With a nudge from the Carter administration to end the stalemate, the city’s managing director, Hillel Levinson, announced a 10-point agreement in early May that had been brokered with MOVE counsel Oscar N. Gaskins. Judge Fred DiBona, City Solicitor Sheldon Albert, and Gaskins signed the 10-point agreement. “MOVE agreed to turn over its remaining weapons and allow police to search the Powelton compound,” Anderson and Hevenor detailed in their book Burning Down the House. “In return, 18 MOVE members, charged with felonies and misdemeanors, would be freed from jail on their own recognizance. The MOVE organization would then have a 90-day grace period – or until midnight, Aug. 1, 1978 – to vacate 307-309 N. 33rd Street entirely. At that point, all outstanding charges would be dropped against the [18-released] MOVE members.” MOVE also agreed to dismantle the platform at the front of the house within two weeks, to remove its animals, and to cease dumping garbage in its backyard. The city agreed to assist MOVE in obtaining replacement housing.
No mention in the agreement was made of MOVE’s three “political prisoners” – Jerry, Conrad, and Robert Africa. Their release “had been accomplished by an oral arrangement and had already been carried out as a precondition to MOVE’s assent to the May 5 agreement,” according to the authors of The MOVE Crisis in Philadelphia.
Implementation of the agreement began that day with the police searching the MOVE compound with metal detectors. When only inoperable weapons were found, the barricades and roadblocks surrounding the area were pulled open. A May 24 news article in the Inquirer reported that health inspectors had found the MOVE house to be clean.
In gaining the release of its political prisoners, MOVE thought it had felled Goliath without hurling a stone. MOVE’s interpretation of the agreement, based on oral understandings shuttled back and forth between the city and MOVE during the negotiations of the settlement agreement, was that all charges against each of the 21 recently released MOVE members would be dropped pending the successful relocation of MOVE members to a different location. In fact, during the 90-day grace period D.A. Rendell’s office began taking actions to bring some of those MOVE members to trial in connection with the May 20, 1977 standoff with police. MOVE saw this as a double cross.
When the city pressed MOVE to tear down its fence, get rid of all of its animals except for a few puppies, and turn over its loudspeakers to the police, MOVE did not comply. "As soon as the city knew MOVE had no guns or explosives, they began modifying and restating the terms of the agreement," the pamphlet states. "It soon became apparent that D.A. Rendell's promise to dispose of all pending MOVE cases within four-to-six weeks was a blatant lie. The 90-day time period, which had been described to MOVE as a working timetable, was misrepresented to the media as an absolute deadline. The promise to assist MOVE in finding a new place to live was never completed, and the city began demanding that the house be razed."
The city did offer MOVE five dilapidated houses in all-black North Philadelphia. “At least one of the five North Philadelphia houses offered to MOVE for taking rental for $1 a year has been declared unfit for human habitation,” the Philadelphia Daily News stated in an editorial dated April 4, 1978, noting that the other four were “run-down properties.” The Daily News found this quite odd. “The ludicrous thing is that the city is trying to drive the MOVE people out of this property [the Powelton compound] on the claim that it is unfit for human habitation.”
At an Aug. 2, 1978 hearing – the day after the 90-day deadline for MOVE to vacate its Powelton compound – that quickly turned intemperate and would lead to MOVE attorney Gaskins being jailed for contempt of court, Judge DiBona ruled that MOVE was in violation of the 90-day deadline to vacate the Powelton house. He proceeded to sign bench warrants for 21 MOVE members, regardless of where they happened to live. This action would set in motion the horrific seize of the Powelton compound within the week.
At dawn on Aug. 8 hundreds of police in flak jackets and riot helmets surrounded the MOVE house. Inside were 12 MOVE adults and 11 children, some of them infants. Over MOVE’s loudspeakers, Chuck Africa stated: “Testing, motherfuckers, testing. You’re trying to kill breastfeeding mothers and breastfeeding children. We’re not backing down. If you want us out, you’ll have to bring us out dead.” Other MOVE speakers asked if the police had their life insurance policies paid up, warning that there would be “lots of widows.”
At 6:04 a.m. George Fencl, head of the Civil Affairs Bureau, announced over a bullhorn, “You have exactly two minutes in which to come out.” A MOVE member responded: “The gate’s open. Stop playin’ games.” Fencl then said, “Come out. No one will hurt you.” He then handed the bullhorn to longtime community activist Monsignor Charles Devlin of the Cardinal’s Commission on Human Relations to make his plea: “Come on out. No one’s going to get hurt. Let me come in, and I’ll walk out with you.”
“Fuck you, priest,” was the reply, according to Anderson and Hevenor.
Police then rolled in specially modified construction vehicles and tore down the fence and smashed out the windows of the house. Just before 7 a.m. MOVE was notified by bullhorn: "Uniformed officers will enter your house for the purpose of taking each of you into custody. Any resistance or use of force will be met with force." In the next hour about 30 flak-jacketed police entered and searched the three-story house, determining that all 23 MOVE members were barricaded in the basement. As firefighters began prying off the boarded up basement windows, they saw a gun sticking out of a basement window. Deputy Police Commissioner Morton Solomon ordered the firefighters to blast water into the basement, flushing the basement with hundreds of gallons of water in minutes.
With the police still in the house and with firefighters just outside it, gunshots suddenly rang out about 8:15 a.m., setting off a torrent of bullets from the police sniper posts into the house. During the 90-second period of sustained gunfire, Officer James Ramp was fatally wounded. Four other police and four firefighters were also shot. For the next half hour, firefighters pumped more water into the basement, raising the standing water level in the basement to several feet. Finally, a MOVE woman and three naked small children climbed out of a front basement window and walked toward the police.
In the next few minutes, all of the remaining MOVE members, except Delbert Orr Africa, climbed out of the front of the house and surrendered. When Delbert, the nominal head of MOVE since John Africa went underground to avoid arrest, crawled out a side window and raised his arms up in a posture of surrender, he was about to become the only MOVE member seriously injured during the ordeal. With one police officer pointing a rifle at his chin, Officer Joseph Zagame smashed him in the face with his police helmet and Officer Lawrence D'Ulisse struck him in the chest with the butt of a rifle, knocking him to the ground. Police then dragged Delbert by his dreadlocks across the street where other officers kicked him in the head, kidneys and groin.
Immediately following the arrests the police version of the events was that MOVE had fired the first shot and that no beatings had accompanied the arrests. The police were forced to abandon the second part of their claims when later that day local TV news broadcasts began airing videotaped footage of Delbert Africa's brutal arrest. Philadelphians were duly shocked. (The resulting public outcry forced the D.A.'s office to impanel a special grand jury, which eventually handed down indictments against three police officers, but no trial would be held for another two-and-a-half years.)
The police claim that MOVE had fired the first shot also came into immediate dispute. Radio reporters Richard Maloney and Larry Rosen both recalled hearing the first shot come from a house diagonally across the street where they said they saw an arm holding a pistol out of a second-story window. Most of the reporters at the scene, though, reported that the first shot came from a basement window of the MOVE compound. The next day, police interviewed three of the 11 MOVE children. An 8-year-old MOVE girl told them all MOVE adults had guns, a 5-year-old boy said he saw Phil, Eddie, Delbert, Janet, and Merle fire their guns – and that MOVE adults were the first to shoot.
Although the death of Officer Ramp had caused the MOVE house to be a murder scene, the compound would be bulldozed that day by noon. Crushed in the debris was a wooden sign that read, “Long Live the House That John Africa Built.”
Later that afternoon, Abu-Jamal attended Mayor Rizzo’s news conference at City Hall. Rizzo blamed the “new breed of journalism” for the death of Officer Ramp and then, in response to a question from Abu-Jamal, said, “They believe what you write, what you say. And it’s got to stop. And one day, and I hope it’s in my career, that you’re going to have to be held responsible and accountable for what you do.”
All 12 MOVE adults arrested on Aug. 8 were charged with the murder of Officer Ramp, as well as attempted murder, conspiracy, and aggravated and simple assault.
At a preliminary hearing, MOVE’s court-appointed lawyers entered a motion to dismiss the charges based on destruction of evidence, arguing that the destruction of the house prevented MOVE from proving that it was impossible for any MOVE member to have shot Ramp. Judge Merna Marshal denied that petition and held the defendants over for trial. Prior to trial, prosecutors dismissed charges against two of the defendants who agreed to disavow MOVE.
When the remaining nine MOVE defendants all elected self-representation, the court appointed separate backup counsel for each. The hearings for pre-trial motions would last more than a year, and frequently provide raucous and uproarious street theater. The media feasted on every twist and turn, and played up every confrontation between the unruly MOVE defendants and the prosecution.
The non-jury trial – presided over by Common Pleas Judge Edwin Malmed – would not begin until Dec. 10, 1979 and go on for the next five months, becoming the longest trial in Philadelphia history. Nearly 100 witnesses would testify, about 200 exhibits would be introduced, and there would be 300 defense motions for dismissal.
One of the first prosecution witnesses was Chief Inspector George Fencl, head of the Civil Affairs Bureau, a police official MOVE considered to be Rizzo's main architect in the plot to eliminate it. MOVE defendants cross-examined Fencl for four days until Judge Malmed ordered the witness excused. On Friday, Jan. 18, Judge Malmed removed all defendants from the courtroom for disorderly behavior, ordering their backup attorneys to take over the case. Each Monday after that, according to Anderson and Hevenor, “the MOVE defendants were taken into court and again asked to pledge to obey the judge’s orders.” They never did and were never allowed to be present during the trial again.
Eight defense witnesses, including several reporters, neighbors, and one of the negotiators, testified that the first shot fired had been fired from outside the MOVE compound, contradicting earlier prosecution testimony from various police officers that the first shot was fired from the basement of the MOVE house.
In closing arguments held on May 5, the various court-appointed MOVE attorneys urged the judge to weigh just how circumstantial the evidence in this case was: no fingerprints on the weapons the police claimed to have recovered from the house, no ballistics to prove that Officer Ramp was killed by a bullet fired from the compound, and no eyewitness testimony of anyone claiming to have seen a MOVE member shoot Ramp. How could the judge even consider convicting nine people for the murder of one man who had only been shot once?
It took Judge Malmed just three days to reach his verdict. The 68-year-old jurist pronounced Delbert Orr Africa, Janine Phillips Africa, William Phillips Africa, Deborah Sims Africa, Chuck Sims Africa, Michael Davis Africa, Janet Holloway Africa, Merle Austin Africa, and Edward Goodman Africa guilty of third-degree murder, conspiracy, and multiple counts of attempted murder and aggravated assault. On August 4, Judge Malmed sentenced each defendant to 30 to100 years in state prison. Consuela Dotson Africa, who refused to disavow MOVE, was later sentenced in a separate trial to 10-20 years by Judge Levy Anderson, who added on another three-and-a-half years for contempt. (Dotson was paroled in 1994. Merle Austin Africa died in prison in 2000. The other seven became eligible for parole in 2008.)
After the trial, when Judge Malmed was asked on a radio call-in program who actually fired the fatal shot that killed Officer Ramp, the judge, according to Bisson, replied, “I haven’t the faintest idea. They call themselves a family. I sentenced them as a family.”
The trial of the three police officers indicted for brutalizing the now convicted Delbert Africa would not be held until 1981. D.A. Rendell’s office brought to trial Officers Zagame, Charles Geiest and Terrance Mulvihill on assault charges. (No charges were brought against Officer D’Ulisse who was photographed wielding the rifle butt.) Attorneys for the D.A.’s office presented photographic evidence of these police officers assaulting Delbert Africa. Just before the jury was to start its deliberations, Judge Stanley Kubacki ordered the jury dismissed and the officers acquitted. (Geist would be shot by his police officer wife during a “domestic dispute” three months after his acquittal, go into a coma and die eight months later. Mulvihill would commit suicide in 1989.)
The tragic case that shook Kansas City, Missouri awake over 33 years ago may now have a chance to be solved. Thanks to the Kansas City Police Department for releasing their file, new evidence has emerged. In “A Quest For Closure: The Kansas City Firefighters Case Part 1," the KCPD and federal agents had local and national media outlets implicate people in the crime without supporting evidence. The prosecution then won a conviction many are now calling into question after it was found that a key police report and crime scene photos were not handed over to the defense. In Part 2, coming out in 2022, the focus will be on how the crime was carried out according to the documented evidence and what went wrong. Visit http://kcfirefighterscase.com for more information.
Other colorful characters in the case included Lehrman, who used the case as a way to further his career, Semnacher, a small-time hood who changed his testimony halfway through the case, Gavin McNab, Arbuckle’s San Francisco defense attorney who later represented heavyweight boxer Jack Dempsey, Milton U’ren, the Assistant D.A. who was so dedicated to convicting Arbuckle that he charged Prevon with perjury after she refused to say that Rappe had incriminated Arbuckle in her presence, and a little known Pinkerton detective named Sam Hammett.
