Sept. 7
TEXAS----impending executions
Convicted killer of 2 set for execution
Fort Worth attorney Greg Westfall labeled Mark Anthony Soliz the “poster child
for how stupid the death penalty is.” Former Johnson County Sheriff Bob Alford
called Soliz one of the most dangerous men he ever dealt with.
Barring an unlikely reprieve, Soliz will almost certainly draw his last breath
sometime between 6 p.m. and midnight on Tuesday. Soliz, 37, who has spent the
last 7 years on death row at the Polunsky Unit in Livingston, will be
transported to Huntsville about 30 miles away where he will be put to death by
lethal injection.
Johnson County jurors in the 413th District Court sentenced Soliz to death on
March 23, 2012, for the June 29, 2010, shooting death of Nancy Hatch Weatherly,
61, in her home near Godley. Soliz earlier that same day shot Ruben Martinez, a
delivery man, in the parking lot of a Fort Worth convenience store. Rushed to
John Peter Smith Hospital, Martinez died 13 days later. Soliz, at the
conclusion of his trial, displayed no emotion as Judge Bill Bosworth read the
jury’s verdict. Soliz’ accomplice, Jose Clemente Ramos, pleaded guilty to
capital murder on Aug. 10, 2012, and received life in prison without parole.
Should his date hold firm, Soliz will become the 6th person executed in Texas
this year.
Life on death row
Robert Hurst, communications officer for the Texas Department of Criminal
Justice, points left toward 3 gray buildings.
“That’s death row,” Hurst said. “There’s about 210 men there now. The women,
they’re kept at Gatesville.”
The inmates get about six hours per week outside recreation time should they
choose to take advantage of it, but always alone. Otherwise they remain in
their single cells even during meals.
“No TV,” Hurst said. “Some have a radio but most don’t. They can get newspapers
or magazines as long as they’re approved.”
TDCJ did away with the last meal request about a decade ago.
“One guy requested a huge smorgasbord of food then didn’t eat any of it,” Hurst
said. “After that they decided to stop doing that. So that one guy screwed it
up for everyone else. Now they get a variety to choose from, usually a choice
of a meat, chicken or fish dish.”
2 death row inmates are already in the small booths in the visitor’s section.
One looks around occasionally but otherwise stares into space. The second
ignores his chair choosing instead to poise himself in a crouched position on a
small shelf beneath the phone in his booth. He alternates between looking
around and reaching up to touch the ceiling.
Both, Hurst explains, are either waiting for their visitors or have already had
their visit and are sitting tight until someone comes to take them back to
their cells.
Soliz, scheduled to arrive any moment, never shows. Although he agreed several
days earlier to an interview he pulls a last minute change of mind. Subsequent
requests from jailers fall on deaf ears and he refuses to budge. Unfortunately,
Hurst says, such is his choice. The jailers can’t force him to talk if he
doesn’t want to.
Hurst and his fellow workers come off surprisingly courteous and upbeat given
the nature of their jobs.
Attempts to contact family members of Weatherly and Martinez were also
unsuccessful.
The cost of justice
“It was our most expensive and longest trial in the county’s history,” Johnson
County District Attorney Dale Hanna said. “The expense of these type trials is
just staggering.”
Soliz’ trial cost the county $903,544.13, County Auditor Kirk Kirkpatrick said.
Of that total, defense costs ate up $782,517.17 and prosecution expenses
$120,891.13.
That amount covers only Soliz’ original trial in the 413th District Court. The
state footed the bill for the many appeals that followed pushing the total cost
to well above $1 million.
The trial involved costs that can’t be measured in dollars as well.
“It took a year just to prepare for that trial,” Johnson County Assistant
District Attorney Martin Strahan said. “I’ve worked on seven capital murder
cases since I’ve been here but Soliz was the only death penalty case I’ve had.
Fortunately, they’re pretty rare. It takes a lot out of you working a case like
that, but in those situations you want to make sure you’re 100 % right. We
thought, based on his record, he was a very dangerous person who would hurt
other people if there was ever any chance he might be let loose, which is why
we decided to go with the death penalty option.”
Former Tarrant County Assistant District Attorney Christy Jack assisted the
Johnson County District Attorney’s Office in the case against Soliz. This
because the chain of events constituting Soliz’ crimes stretched from Tarrant
to Johnson County.
Jack said she’s worked several capital murder cases both as prosecuting and
defense attorney.
“Every one you try changes and takes a little bit out of you,” Jack said.
“Because you’re asking a jury to impose the ultimate punishment for the
ultimate crime. It’s nothing to celebrate because it’s a terrible tragedy for
everyone involved that’s brought us to this point.”
Hanna agreed.
“The big picture is it does not give me one inkling of delight in seeing this,”
Hanna said. “It pains me and it is a heavy burden to carry to know that you’ve
prosecuted somebody for a crime that’s going to end up taking his life.”
In the end, however, Hanna said Soliz has no one to blame but himself.
“He shot Martinez in Fort Worth and ended up killing him,” Hanna said. “He
burglarized Weatherly’s house and killed her for no reason and it was a
merciless killing. We could’ve tried this in Tarrant or Johnson, but the juries
in Johnson County are probably more conservative. The evidence was overwhelming
and the right results happened in my opinion.”
Crime spree
It could’ve been worse, prosecutors said. Soliz shot and/or shot at several
others in the days leading to the shootings of Martinez and Weatherly.
Soliz, 28 in 2010, spent most of his adult life in jail for theft, evading
arrest and other charges, according to TDCJ records. He had just been released
from a 3-year stint in jail for stealing a car when he hooked up with Ramos, a
friend of Soliz’ sister.
The couple burglarized a west side Fort Worth home and stole several guns.
Soliz sold most of the guns but kept on telling friends he had plans for it.
Jack said it “destroyed” the homeowner when he later learned that his gun was
used in Soliz’ crimes. That man’s wife, who was pregnant at the time, arrived
home minutes after Soliz and Ramos had departed.
Prosecutors laid out 13 offenses some committed by Soliz alone, others in
tandem with Ramos over the week of their spree.
Two days after stealing the guns Soliz and another man, possibly Ramos,
approached a man in the Ridgmar Mall parking lot and attempted to rob him.
Later that same day Soliz involved himself in an argument between a man named
Luis Luna and another man. Soliz asked the other man if he wanted to get Luna
wet, meaning blood, then proceeded to shoot Luna in the ear. Later that day
Soliz, and possibly Ramos, car-jacked a man’s pickup. Still later that day
Soliz approached a man in a convenience store parking lot and stole his wallet
and car at gunpoint.
Several days later Soliz and Ramos approached 2 men and women in the parking
lot of a bar, pistol whipping one man and stealing his wallet. On June 29,
2010, Soliz and Ramos shot multiple bullets at and into a Fort Worth house
apparently in retaliation against a rival gang member. Later that same morning
they robbed a Fort Worth man as he walked to his car, shooting him multiple
times in the chest and stomach. Still later that same morning Soliz approached
a Lowe’s Home Improvement employee in the store’s parking lot, displayed a gun
and demanded money. Soliz fired multiple shots at the man as he fled the scene.
That same morning Soliz and Ramos accosted and robbed Martinez who was making a
delivery to a convenience store on Azle Avenue in Fort Worth. A struggle ensued
and Soliz shot Martinez.
“The shot pulverized Martinez’ spine,” Jack said. “He couldn’t move or talk. He
could only communicate by blinking his eyes. His wife said she felt helpless to
ease his suffering.”
Soliz and Ramos departed Fort Worth at that point traveling in one of the
vehicles they had stolen. While passing through Benbrook they stopped long
enough to burglarize 2 houses then eventually entered Johnson County. Why they
chose Johnson County remains unknown. The only link either had, prosecutors and
law enforcement officials said, is that either Soliz or Ramos spent a brief
period of time in a foster home in the county when they were younger.
They chose for whatever reason to rob Weatherly’s home. Attorneys involved in
the case said Weatherly had poor eyesight and may have confused Soliz and Ramos
for 2 men who did work on her property when she opened her door.
Soliz, in a statement to police, said he laid the gun on the table in the
Weatherly’s dining room, walked outside leaving Ramos inside and heard a shot.
Subsequently Soliz, on that same statement wrote in hand, “It was me that shot
that woman.”
Apparently, Soliz left Ramos to guard Weatherly while he continued to ransack
her house, attorneys said. Ramos tried to calm Weatherly telling her they were
only there to rob here home when Soliz walked back into the room. Attorney’s
said Weatherly asked Soliz not to take an item that belonged to her mother at
which point Soliz said, “Then go be with her” before shooting her in the back
of the head. A woman who testified during the trial said Soliz recounted the
incident to her later that same or the next day and made fun of Weatherly’s
accent while doing so.
An attorney connected to the cases said Ramos told him that as they were
leaving in Weatherly’s stolen truck horses on her property blocked their path,
something Ramos took as a sign the horses knew something was wrong and/or a
sign from God.
Fort Worth police were at various times searching for Soliz and Ramos in
connection with the burglary of guns from the Fort Worth home, the vehicles
they stole, the shooting and robbery incidents and ultimately the shooting of
Martinez.
Ramos, when asked about a stolen truck began talking about Weatherly. The FWPD
detective, who was asking about a truck they stole in Fort Worth, had no idea
what he was talking about but didn’t let on or question him. But for that
detective’s sharp thinking, Hanna and Jack said, Weatherly’s murder may have
remained unsolved.
“I don’t think I’ve ever encountered someone with so little regard for life,”
Jack said. “ The difference from other capital murder cases I’ve tried is that
they were one person responsible for a murder. Ramos and Soliz had the unique
distinction of being a two-man crime spree over several days and two counties.
Either incident would’ve qualified them for capital murder.”
Fort Worth Detective Danny Paine called Soliz the most dangerous person he had
ever come in contact with during his law enforcement career.”
Soliz’ attorneys pointed toward his troubled childhood including a mother
involved in prostitution and drugs and witnessing his aunt dying after being
stabbed. Soliz, they argued suffered from fetal alcohol syndrome, an argument
Soliz’ appellate attorneys put forth to no avail during his appeals.
Hanna dismisses the fetal alcohol syndrome argument. Johnson County Appellate
Attorney David Vernon said he doesn’t expect any remaining appeals to go Soliz’
way.
Westfall called the case a tragedy all around.
“That case was overwhelmingly sad for everyone involved,” Westfall said. “The
effects of neglect and trauma on a developing brain are becoming better known.
Basically Soliz had a monstrous childhood and should not be executed. The death
penalty is stupid. It fulfills none of the promise of closure and is incredibly
expensive.”
Alford said he welcomed the day Soliz left the Johnson County Jail.
“He was unruly, a problem and a threat the whole time he was there,” Alford
said. “We had to take a lot of precautions because he was a confirmed member of
the Tango Blast gang.”
JCSO Detective Kevin Link guarded Soliz while he was in court.
“In my 20 plus years of law enforcement I thought I’d seen it all,” Link said.
“Not a lot of officers get to spend that much time in a trial but there were
unique circumstances because of his gang affiliation and the possibility of
some kind of retaliation.”
Videos played during Soliz’ trial showed him acting out in jail and in the
courthouse holding room. Despite being heavily guarded, Soliz, probably with a
paper clip, managed to scratch Kilo, his gang name, into the leg of the defense
table. It’s still there. Soliz somehow also saw and memorized the address of a
potential female juror. He later wrote a romantic letter to her. Jail staff
intercepted the letter and the woman never received it. Prosecuting and defense
attorneys both say they’re unsure how Soliz obtained the woman’s address.
Former Johnson County Assistant Attorney Larry Chambless during opening
arguments of Soliz’ trial, noted that Weatherly was wearing pajamas and a white
T-shirt reading “Granny” when she opened her door and Soliz and Ramos forced
their way into her life. Martinez’ wife was 8 months pregnant with the couple’s
2nd child at the time of his death.
(source: cleburnetimesreview.com)
**********************
Lawyers say the Texas judge who presided over this Jewish death row inmate's
trial later called him anti-Semitic slurs
Lawyers for "Texas Seven" gang member Randy Halprin, who is Jewish, requested a
stay of his execution set for Oct. 10 amid allegations that the judge who
handled his case in 2003 made racist and anti-Semitic comments during his time
on the bench.
In a filing Thursday, Halprin's lawyers accused former criminal court Judge
Vickers Cunningham of describing Halprin using expletive-laden anti-Semitic
comments after the trial ended. The Dallas Morning News also reported during
Cunningham's 2018 Republican primary race for Dallas County commissioner that
each of his children could only receive an inheritance by marrying a straight,
white Christian. During the election, Cunningham acknowledged putting such
stipulations in his will. He lost the race by 25 votes.
Halprin is on death row for capital murder in connection to a high-profile 2000
prison escape during which seven inmates went on the run. The group robbed a
North Texas sporting goods store on Christmas Eve, and Irving police Officer
Aubrey Hawkins was shot and killed as he responded to that crime. The escaped
inmates fled to Colorado, where most of them were arrested in January 2001.
4 of the gang members have already been executed, and a 5th shot himself before
police could arrest him. The 7th member is also scheduled to be executed this
fall.
Halprin's attorneys wrote in the Texas Court of Criminal Appeals filing that
Cunningham could have biased the case in areas ranging from jury selection to
evidence submission. Cunningham also prevented the jury from knowing that state
officials labeled Halprin as the "weakest" of defendants, according to court
documents, which his attorneys said might have caused jurors to consider
alternative sentences to the death penalty. Cunningham has denied the
allegations of bias in Halprin's case, and of being racist and anti-Semitic,
according to various news reports.
The 69-page filing calls Cunningham a "racist and anti-Semitic bigot" in the
first sentence and accuses him of believing Jews “needed to be shut down
because they controlled all the money and all the power.” Halprin's lawyers
also wrote that minorities who walked into his courtroom knew they were "going
to go down" regardless of the evidence or what happened at the trial.
Halprin's federal public defender, Tivon Schardl, said they began looking into
Cunningham following the Morning News' investigation last year. Prior to that,
Schardl said they had never heard of any evidence of anti-Semitic bias in the
case.
Dallas County District Attorney John Creuzot took the rare step of declining to
oppose Halprin's filing, which the convicted killer's lawyers are using as
further evidence in their accusation that Cunningham unfairly biased the trial.
The Court of Criminal Appeals filing is part of a federal court appeal
requesting a new trial for Halprin based on Cunningham's alleged comments.
Schardl said he was grateful to Creuzot but not necessarily surprised by the
decision, considering the district attorney campaigned on eliminating bias in
the criminal justice system in Dallas.
"That's not just a campaign promise. I think he really believes that," Schardl
said. "It was remarkable compared to historical precedent, but I think given
who John Creuzot is and what he stands for — it was a pleasant surprise but not
super shocking."
Neither the district attorney nor Cunningham has responded to The Texas
Tribune's requests for comment.
Halprin testified during the 2003 trial that he did not shoot Hawkins, but his
capital murder charge did not require him to have done so in order to still
receive the death penalty. The state only had to prove that he intended to kill
Hawkins or anticipated the killing would occur. Halprin's lawyers attempted to
challenge the use of this reasoning when it came to sentencing, but Cunningham
denied it, according to court documents.
Cunningham also presided over the trials of three other members of "Texas
Seven" before Halprin.
(source: The Texas Tribune)
FLORIDA:
Florida Supreme Court upholds death sentence for inmate who murdered cellmate
The Florida Supreme Court has upheld both the conviction and the sentence of
death imposed on Shawn Rogers.
Rogers was found guilty on August 8, 2017, of 1st-degree premeditated murder or
felony murder and kidnapping to terrorize or inflict bodily harm for the death
of Ricky Dean Martin.
Both Martin and Rogers were inmates at the Santa Rosa Correctional Institution
at the time of the crime.
Following the penalty phase, on August 17, 2017, the jury unanimously
recommended a sentence of death.
Rogers was sentenced to death by a judge on November 3, 2017.
(source: WEAR TV news)
***********************
Everett Miller trial: Judge prohibits ‘downward spiral’ evidence from defense
of accused cop-killer
A judge in the trial of Everett Miller prohibited his defense attorneys from
presenting evidence of his “abnormal mental condition” Thursday, after his
lawyers argued the Marine Corps veteran was in a “downward spiral” before he
shot and killed 2 Kissimmee police officers in 2017.
Miller, 47, faces the death penalty in the 1st-degree murders of 26-year-old
Officer Matthew Baxter and 36-year-old Sgt. Richard “Sam” Howard. Prosecutors
say Miller killed the 2 cops in a “cold, calculated and premeditated fashion
due to anti-government beliefs.”
During opening statements at the Osceola County Courthouse last week, defense
attorney J. Edwin Mills told jurors his client had been in a “downward spiral”
since 2013, because he could not adjust to civilian life and suffered from
depression, anxiety and nightmares. Miller was also homeless and had been
involuntarily committed a month before the shooting, his attorney said.
Mills told the jury his client was not guilty of a premeditated killing and
asked them to return a verdict of 2nd-degree murder.
Ocala-based State Attorney Brad King argued Thursday that evidence is
“irrelevant” because it does not rise to the level of legal insanity. A defense
of an abnormal mental condition is inadmissible in Florida unless the evidence
proves the defendant was insane at the time of the crime, the prosecutor said.
“What they’re trying to do is avoid his guilt by arguing an illegal defense,”
King said.
His family and friends told the Orlando Sentinel after the killings that the
veteran struggled with post-traumatic stress disorder after coming home from a
two-decade military career.
Defense attorney Roseanne Eckert argued it would not be fair for prosecutors to
present evidence of Miller’s anti-law enforcement posts on social media as a
motive while ignoring his mental condition at the time.
“They can’t have their cake and eat it, too,” she said.
But Circuit Judge Greg A. Tynan sided with prosecutors.
“You can’t put on evidence that’s related to some type of mental breakdown just
to refute premeditated intent because that is not legal defense in the state of
Florida,” he said.
The jury heard Thursday morning from officers who responded to the intersection
of Cypress and Palmway streets where Howard and Baxter were killed.
Baxter was conducting a routine check into three suspicious people the night of
Aug. 18, 2017, when a witness said Miller suddenly drove up and started asking,
“Why the [expletive] you messing with my peoples?”
Baxter called Howard to the scene after Miller asked to speak with his
sergeant. Police say Miller told the two officers he had a license to carry a
concealed weapon and feared for his life before shooting them in the head.
Nicole Palmer, who lived near the intersection, testified she called 911 after
hearing three gunshots and seeing the 2 officers on the ground.
“They’re dead,” a crying Palmer told the operator in a recording of the call.
“They’re not breathing, I don’t think. There’s not any movement.”
Kissimmee police Lt. Christopher Succi testified he was the watch commander the
night Baxter and Howard were shot. He rushed to the scene along with other
officers.
“Both were lying on their backs, feet straight, arms to the side,” Succi said.
“I found that unusual”
Baxter died that night, while Howard passed away the next day.
Miller fled to Roscoe’s, a bar on Orange Blossom Trail. Christian Hathaway, a
bartender at Roscoe’s, told jurors the accused killer was polite when he sat
down at the bar and ordered a Hennessy and Sprite from her.
He got agitated when another customer accused him of being the person who shot
the officers.
“[Miller] asked him, ‘Are you the police?’” Hathaway said. “‘Are you the f—ing
police?’”
When authorities came to arrest Miller, he told Hathaway to take his
identification.
“He said he didn’t feel safe going outside and for me to tell the police he had
been there with me,” she said.
After a struggle, officers found Miller was carrying a knife and 2 guns.
Prosecutors also showed the jury YouTube videos depicting Miller reviewing
weapons, including one where Miller fires what he calls “headshots” into a
paper target at a gun range.
“I think I got him,” Miller said in the video.
(source: Orlando Sentinel)
********************
Confessed Parkland Shooter’s Defense Team Want Current Prosecutors Removed
Defense attorneys for the confessed Parkland shooter wans the current
prosecutors assigned to the case removed because they won’t reconsider seeking
the death penalty.
In a court motion, Nikolas Cruz’s attorneys said that Broward State Attorney
Michael Satz has informed them he will consider no evidence, known as
mitigation, that would argue against capital punishment.
The motion says Satz has also compared Cruz, 20, to serial killer Ted Bundy,
who was executed in Florida in 1989.
Satz’s office says he will respond in a court filing. A status hearing is set
for Monday.
Cruz is charged with killing 17 people in February 2018 at Marjory Stoneman
Douglas High School. His lawyers have said he would plead guilty in exchange
for a life prison sentence.
(source: CBS News)
ALABAMA:
'Just Mercy'
Before entering the Marvel universe with 2021's 'Shang-Rai,' Destin Daniel
Cretton offers an Earthbound story of justice starring Michael B. Jordan and
Jamie Foxx.
A straightforward biopic that views one American's long career of fighting
injustice through the lens of an early victory he won in Alabama, Destin Daniel
Cretton's Just Mercy stars Michael B. Jordan as Bryan Stevenson, founder of
that state's Equal Justice Initiative. Having spent three decades overturning
the convictions of the wrongly imprisoned and defending anyone on Death Row,
Stevenson has been at the vanguard of a righteous fight. So it's not surprising
if the film's edge is somewhat dulled by respect for its subject, who's drawn
here as more hero than man. A sturdy example of this genre, in which
persistence and faith lead to the righting of terrible wrongs, it will likely
move younger viewers who haven't seen many like it. Those of us who've seen
truly exceptional examples (in both feature and documentary form) will be
content to admire Stevenson himself, and to enjoy a rich performance by Jamie
Foxx as the man he saved from the electric chair.
Foxx plays small-town entrepreneur Walter McMillan, introduced to viewers in a
moment of transcendence through labor: Having just felled a tall tree, he gazes
up at the hole he has just opened into the sky. It's the closest he'll get to
freedom for a long time, as he's arrested on the drive home by cops who are
longing for an excuse to shoot him on the spot. He's accused of the
long-unsolved murder of a local white girl, and in a parody of justice, he's
quickly sentenced to death — despite there being no physical evidence and a
multitude of witnesses (all black, unfortunately) backing up his alibi.
Around the same period, Stevenson, a Harvard law student, is working as an
intern in Georgia, where he shares a human moment with a death row inmate whose
background is similar to his own. He finishes school and, over the protests of
his fearful mother, moves south to defend death row inmates free of charge.
(The script, by Cretton and Andrew Lanham, might've tossed us 2 lines
explaining how he manages to support himself.)
In Alabama, Stevenson quickly learns how resistant the white establishment is
to those who sympathize with felons. In scenes that occasionally echo some of
Sidney Poitier's onscreen confrontations with bigotry, he is stalked by men in
police cruisers, kicked out of the office he has rented and even strip-searched
when he first visits new clients in prison — demeaned by a bland-faced guard
who grins at his humiliation.
A local who has signed on as his paralegal, Eva Ansley (frequent Cretton
collaborator Brie Larson, in a throwaway sidekick role), lets her boss move
into and work out of her home, sharing work space with her son's toys. But as
their work raises eyebrows in town, the situation becomes difficult: Older
viewers will immediately know that when a phone rings at night, and a young boy
says "it's for you, Mom," there's about to be a racist on the line issuing
death threats.
Of all the incarcerated men whose cases Stevenson takes up, McMillan's a
holdout — sure that fighting his conviction is pointless and that this young
lawyer will be no better than the last, who disappeared as soon as the family's
money ran out. (Bryan hears lots of variants of "that's exactly what the last
guy said.") But when Stevenson arranges a meeting with Walter's wife (Karan
Kendrick) and supporters, his seriousness is impossible to deny. Walter agrees
to work with him, setting the film on its largely familiar procedural trek
through shocking evidence of malfeasance, thwarted legal maneuvers and eventual
triumph in a courtroom bathed in sunlight.
The story is most involving at its margins: Walter's friendships with the men
(O'Shea Jackson and Rob Morgan) stuck in the cells next to his, for example; or
scenes in which Stevenson tries to get the felon whose false testimony got
McMillan convicted (Tim Blake Nelson) to admit that he lied. And in one or two
harrowing moments, the film communicates the way Stevenson's up-close
interaction with the institution of capital punishment informed his work. But
as played by Jordan, this crusader is more Boy Scout than Brockovich — a
steadfast champion of the downtrodden with none of the complications that make
characters breathe on screen.
Jordan serves as straight man for the beaten-down magnetism of Foxx, whose
character understands things about the world the younger man can't fathom. A
couple of Foxx's scenes are transfixing enough to make you hold your breath
without realizing it. The big courtroom moments the film constructs for
Stevenson, by contrast, sound like prepackaged American idealism. That's not to
deny that every thing he says is 100% true; but speeches don't always make for
great movies, even in courtrooms where they beg to be delivered.
Venue: Toronto International Film Festival (Gala Presentations)
Production companies: Gil Netter Productions, Outlier Society
Distributor: Warner Bros. Pictures
Cast: Michael B. Jordan, Jamie Foxx, Brie Larson, Rob Morgan, Tim Blake Nelson,
Rafe Spall, O'Shea Jackson Jr., Karan Kendrick
Director: Destin Daniel Cretton
Screenwriters: Destin Daniel Cretton, Andrew Lanham
Producers: Gil Netter, Asher Goldstein, Michael B. Jordan
Executive producers: Mike Drake, Daniel Hammond, Gabriel Hammond, Michael B.
Jordan, Charles D. King, Niija Kuykendall, Bryan Stevenson
Director of photography: Brett Pawlak
Production designer: Sharon Seymour
Costume designer: Francine Jamison-Tanchuck
Editor: Nat Sanders
Composer: Joel P. West
Casting director: Carmen Cuba
PG-13, 136 minutes
(source: thehollywoodreporter.com)
**************************
Has an innocent man sat on Alabama’s Death Row for 20 years?
Just after midnight on July 19, 1995, Jefferson County, Ala., deputy William
Hardy was moonlighting as a security guard for the Crown Sterling Suites hotel
in Birmingham. Around 12:30 a.m., Hardy must have heard something in the
parking lot that got his attention, because he stepped away from his post to
investigate so quickly that he left a cigarette burning in an ashtray. Within
seconds, a shot rang out, sending a bullet through Hardy’s hand, and then his
mouth. A second bullet ensured his fate. Either between the shots or after
them, Hardy staggered about 30 feet, leaving a trail of blood and teeth on the
asphalt. Witnesses gave a variety of descriptions of the car that sped away
from the scene, but most described it as a late model and light-colored.
Hardy, a black officer, was well-liked both in the sheriff’s department and in
the community. He was 49 years old and had served for 23 years. He left behind
a wife and two children. As is often the case when a police officer is killed,
Hardy’s death shook the local community, and local law enforcement faced
immediate and enormous pressure to find his killer. Police in Birmingham and
the surrounding area pulled over countless vehicles on pretext stops that
night. At the first preliminary hearing for the men initially arrested for
Hardy’s murder, more than 750 law enforcement officers showed up for support,
forcing the judge to move the hearing to a larger courtroom. Alabama’s governor
would later announce a $10,000 reward for information leading to an arrest and
conviction.
Over the next few years, 6 young black men and one black girl would be arrested
for crimes associated with Hardy’s murder. 4 were charged. 2 were tried - 1 was
acquitted; one was convicted and sentenced to die. There was precious little
evidence for any of the charges.
This is a story about a wrongful conviction. It’s about witnesses who were
rewarded for lies and threatened for telling the truth. It’s about overly
aggressive law enforcement, a supine judiciary and almost comically ineffective
representation, and how all of these things put a man on death row who nearly
everyone now agrees is innocent - even the man who prosecuted him now doubts
his guilt. It’s a story about the lives ruined along the way. And it’s about
the murder of a much-liked deputy that, because of all of this, remains
unsolved.
Old death penalty conviction creates an opportunity for JeffCo’s new DA
Toforest Johnson and three other young, African-American men were arrested for
the crime. There was no physical evidence or eyewitness testimony linking Mr.
Johnson to the shooting. He and other witnesses have always maintained his
innocence, explaining that he was across town at the time Deputy Hardy was
killed.
At the time William Hardy was killed, Toforest Johnson, then 22, and his friend
Ardragus Ford, 21, were partying at a nightclub called Tee’s Place on the other
side of Birmingham. Johnson’s appellate attorneys would later provide 10
witnesses who saw him at the club. And at almost precisely the moment Hardy
died, phone records show Ford had called a girl he met a few weeks earlier,
15-year-old Yolanda Chambers. The 2 men arranged to pick up Chambers and
another girl, Latanya Henderson, at around 2 a.m. The 4 planned to get a bite
to eat before checking in to a hotel.
Around 4 a.m., a police officer approached the group in the parking lot of a
Super 8 motel in the city of Homewood, about 5 miles south of Birmingham. The
officer said he had been called about a “suspicious vehicle.” He patted down
the four of them and searched the car. Police officials would later tell the
four that they were questioned because law enforcement was on the lookout for
Hardy’s killers, though the car they were in - a black 1971 Monte Carlo fitted
to accommodate a wheelchair - didn’t fit the car most witnesses described
fleeing the scene. The police found nothing suspicious and released Chambers,
Ford and Henderson. Johnson, however, had an outstanding warrant for a traffic
violation. He was arrested and taken to a city jail.
A few years ago, I wrote about the case of Montez Spradley, another Birmingham,
Ala., man who had been convicted and sentenced to death. In both Spradley’s and
Johnson’s cases, witnesses came forward with damning information in response to
a reward. In both cases, it seems safe to say that a conviction wouldn’t have
been possible without those witnesses. In both cases, the witnesses were paid,
but the payments were never disclosed to the defense or the jury. In fact, in
both cases, the judge signed off on said payments, yet neither judge bothered
to notify defense counsel.
Coincidentally, the judges in the two cases are siblings. Gloria Bahakel, the
judge in Spradley’s case, is the sister of the judge in Johnson’s case, Alfred
Bahakel. The Bahakels also have another sibling, Jerry, who was a Jefferson
County deputy and a colleague of Hardy at the time Hardy was killed - a
connection that Johnson’s lawyers unsuccessfully argued was a conflict of
interest. Jerry Bahakel was later fired from the Birmingham police department
for using excessive force while arresting the daughter of the mayor of
Birmingham. He later became a lawyer and also ran for judge, but lost.
In the investigations of both Johnson and Spradley, law enforcement officials
threatened witnesses with incarceration and the loss of custody of their
children if they didn’t tell authorities the story they wanted to hear. And
both cases were prosecuted by the office of longtime Jefferson County District
Attorney David Barber, who held that position for 24 years. So far, at least
six people convicted of murder during Barber’s tenure have been exonerated,
including four who at one time had been sentenced to die. To the extent that
there are differences between the two cases, they make Johnson’s prosecution
even worse. He had deficient attorneys and an incompetent investigator. The
state tried him and his friend using two mutually exclusive theories of the
crime. And then there’s the biggest difference between Spradley and Johnson:
Spradley was finally released from prison; Johnson is still on Alabama’s death
row.
Johnson was convicted of the murder of Jefferson County Deputy Sheriff William
G. Hardy on July 19, 1995 while Hardy was on duty working at his part-time
security job at a Birmingham hotel.
Yolanda Chambers helped send one man to death row and almost sent another.
She’s the reason Toforest Johnson was arrested, and she was the chief witness
against his friend, Ardragus Ford. At one point, prosecutors themselves
conceded that since William Hardy’s murder, Chambers had told more than 300
lies about who was involved and what she knew.
Hardy was a friend of the Chambers family, and the morning after the shooting,
Chambers’s mother called to ask whether she had heard the news. The girl said
she had, and told her mother that she “might know something” about what had
happened. This likely referred to what police officers had told her and her
friends the night before, but her mother seemed to have interpreted the answer
to mean Chambers knew who committed the crime. The governor’s office would soon
announce a $10,000 reward for the apprehension of Hardy’s killer. Chambers’s
mother hired an attorney to help her collect the reward, and she told police
that the girl had information about Hardy’s death.
Chambers, meanwhile, was undoubtedly scared. She was spending most nights on
the streets of Birmingham immersed in a life of prostitution and illicit drugs.
Now this 15-year-old was in the impossible position of going to prison unless
she gave the police something useful, and having nothing useful to give them.
As each of her stories fell apart, the police grew more desperate and squeezed
her a little harder until she implicated someone new. “All of the evidence,
including phone records and witnesses, clearly showed that she couldn’t have
witnessed the Hardy murder,” says Richard Jaffe, a longtime Alabama criminal
defense attorney who represented Ford. “Her accusations should have been
painfully and obviously false.”
The routine between Chambers and police continued until she finally described a
scenario that didn’t immediately clash with an alibi or contradict the known
evidence. And that would be the story the police took to a grand jury.
In this version, Chambers said seven people were present at Hardy’s murder:
herself, Henderson, Johnson and Ford, along with three other men (Omar Berry,
Leon Colvin and Quintez Wilson). She initially claimed they had met up to carry
out a drug deal; she’d later say it was to beat up a man who was staying at the
hotel. In both versions, when Hardy showed up in the parking lot, Chambers
said, Johnson panicked at the sight of a police officer, and shot him. Johnson
then returned to Ford’s car with blood on his hands, and everyone fled. (Police
never found blood or any other physical evidence linking Johnson to the crime
scene.) Birmingham police arrested everyone Chambers named.
At a preliminary hearing just a couple of months later, Chambers changed her
story again. This time, she said it wasn’t Johnson, but Berry and Wilson who
killed Hardy. Four months later, the lead investigator for the sheriff’s
department would tell a grand jury yet another story - that according to
Chambers, it was Berry and Ford who fired at Hardy. He also told the grand jury
that while she might have been dishonest in the past, “our investigation
reveals there is no doubt that Yolanda Chambers is telling us the truth.”
But she wasn’t. Her story would change again. About a year later, Berry and
Wilson passed polygraph tests. Around the same time, the police obtained
surveillance video from the parking lot of the hotel. If Chambers had finally
been telling the truth, the video should have shown Ardragus Ford’s car around
the time of the murder. It didn’t. So Chambers altered her story again. She
admitted to police that she had actually just met Berry and Wilson at a club a
few nights earlier, and that they had nothing to do with the crime. Instead,
she now claimed it was she, Henderson, Ford and Johnson who were in the parking
lot, that Ford had parked out of view of the security cameras, and that Ford -
and only Ford - shot and killed Hardy. Berry and Wilson were released from jail
after being locked up for 15 months. Neither ever received an apology from law
enforcement officials.
Undeterred, prosecutors finally charged Ford and Johnson with capital murder,
making each eligible for the death penalty. Ford’s mother retained Jaffe, a
renowned attorney who had represented multiple Alabamians facing the death
penalty. Johnson’s family was poorer, and was assigned lawyers by the court.
In the weeks that followed, Jaffe’s investigators told him they had heard that
Chambers had told friends she regretted implicating two innocent men for
Hardy’s murder. Jaffe requested a hearing and questioned Chambers under oath.
During that questioning, Chambers returned to her original story. She said she
knew nothing about the crime, that she had never been at the hotel that night,
and that neither had any of the people she was with. When Jaffe asked her why
she had previously lied, she replied: “Because the pressure. They was telling
me, you know, ‘Don’t you know you can go to jail for this?’ And that’s all I
was thinking. That’s all I had put in my mind: Jail. I don’t want to go. So
after they was putting all the pressure on me, I went on and said I was there
.?.?. maybe if I go on and say I was there, maybe all the threats and
everything will end.”
Later, Jaffe asked her why she had specifically lied to implicate Ford and
Johnson. She replied, “Because, I mean, that’s what they wanted to hear, that
Ardragus was the one who killed the police officer.”
Such an admission from the state’s star witness should have been a bombshell.
Jaffe asked Judge Bahakel to find that the state had committed prosecutorial
misconduct and that the charges against Ford be dropped. Bahakel declined.
Instead, Jefferson County would hold separate trials in Hardy’s murder: one for
Ford and one for Johnson. In both cases, the state would seek the death
penalty.
- - - Ardragus Ford’s trial came first, in November 1997. It’s worth noting
that at several points during his interrogation and incarceration, Ford could
have freed himself by implicating Toforest Johnson. In his 2012 book “Quest for
Justice,” Jaffe writes that the police initially interrogated Ford for 9 hours
while Jaffe was tied up in a separate case. When he arrived at the police
station, DA David Barber told Jaffe that he thought Ford was lying about
knowing nothing about the shooting, but he also didn’t think Ford was the
killer.
“He was there. We know that,” Jaffe recounts Barber telling him. “Go in there
and see if you can talk some sense into him. Either you can leave with him as a
witness or we are going to wheel him over to the Jefferson County Jail. It’s up
to him.”
Jaffe got Barber to agree to complete immunity if Ford would implicate Johnson.
But Ford wouldn’t do it. Jaffe then recounts what Ford told him when he
approached his client with the immunity deal: “Look, Mr. Jaffe, Toforest and I
are close, but not that close. I see where they won’t charge me if I say he did
it. If that were the truth, I would say it in a heartbeat. I would not lie for
him and put my family through all these changes, including money to pay you to
represent me. But I am not lying for anybody, including the cops.”
Ford was arrested, jailed and charged with capital murder. Barber’s office
would be seeking the death penalty. Jaffe writes in his book: “I have
cross-examined many people who have lied to avoid a theft case. This young man
faced the electric chair and refused to lie.”
As the trial began, as far as Ford and Jaffe knew, the only evidence against
him was the testimony of Yolanda Chambers. “My opening statement took over an
hour,” Jaffe says in a phone interview. “Theirs was only about 15 minutes.
Usually a prosecutor would tell the jury what testimony they were about to
hear. They couldn’t do that with Chambers because she was so unpredictable.
They didn’t know for sure what she would say. None of us did.”
But the prosecution was also sitting on a surprise. After opening arguments,
the state called a woman named Carla Bowen to the stand. Jaffe and his
co-counsel were baffled. Prosecutors are supposed to give the defense a list of
witnesses. Jaffe and his co-counsel had no idea who Bowen was. He objected.
Prosecutors told the court that they had learned of Bowen only in the last few
hours, and had no signed or recorded statements from her to give to the
defense. That would later prove to be false, when Bowen revealed under
questioning that law enforcement had previously questioned her in a recorded
interview.
Bahakel granted a recess for the day so that Jaffe could review the recording.
In it, according to Jaffe, Bowen said Ford had once come to her house with
another teen, and the two watched an episode of “Matlock.” In the first part of
the interview, she denied that Ford had ever said anything about Hardy’s death.
But then the prosecutor mentioned Bowen’s children, and the possibility that
she could lose them if she was charged for not coming forward sooner. That
seemed to jog her memory. She quickly recalled that Ford had casually
implicated himself in the shooting. Jaffe asked Bahakel to prevent Bowen from
testifying. He refused.
Usually a prosecutor would tell the jury what testimony they were about to
hear. They couldn’t do that with [Yolanda] Chambers because she was so
unpredictable. They didn’t know for sure what she would say. None of us did.
The main event at Ford’s trial was Yolanda Chambers. She told the jury that
she, Johnson, Ford and Latanya Henderson were in the parking lot of the hotel,
and that Ford fired the fatal shots at Hardy. Prosecutors admitted to the jury
that Chambers had lied in the past, but vouched for her integrity on the
witness stand. “She didn’t ask for this role,” said deputy district attorney
Jeff Wallace, “but she came in here and told you the truth.” And she told the
truth, he said, “Because she she’s sitting there looking at Bill Hardy’s family
when she tells you what she saw that night.” Chambers was telling the truth,
prosecutors insisted. But they had also insisted she was telling the truth when
they previously presented the media, the grand jury and the court with theories
of the crime that were wholly inconsistent with the theory they were arguing
now. And soon, in Johnson’s trial, they’d argue a completely different theory.
In spite of Wallace’s efforts, the state’s case against Ford just wasn’t very
strong. The jury hung, with a 10-2 vote in favor of acquittal.
The following month, jury selection began for Johnson’s trial. The case against
Johnson was nearly as weak as the case against Ford. And Chambers’s most recent
story - the one she had just given in court, under oath - was that Ford killed
Hardy, with no help from anyone.
But after Ford’s trial, prosecutors opted to use a piece of information against
Johnson that they’d had from nearly the beginning. In August 1995, just a
couple weeks after the shooting, a woman named Violet Ellison told police that
she had heard Johnson confess to Hardy’s murder. At the time, Ellison’s
daughter was dating an inmate at the county jail. When he needed to make phone
calls, the boyfriend would call Ellison’s daughter from the jail phone, and she
would then contact other parties through 3-way calling. He would only be
required to pay for one call. She began doing this for other inmates as well.
According to Ellison, in August 1995 she picked up her phone after her daughter
had arranged one of these calls and listened in on the conversation. She said
she heard one of the parties on the line identify himself as “Toforest.” She
said that man then told the other party that he “shot the f----r in the head,”
because the deputy was “messing in my s--t.” According to Ellison, the man also
said that Quintez Wilson fired the other shot.
The confession Ellison claimed to have heard didn’t jibe with evidence showing
that the bullets found at the crime scene were fired from the same gun. It also
didn’t jibe with either of the state’s 2 competing theories of the crime - that
either Ford or Johnson shot Hardy, with no help from the other. Odder still,
Ellison first came forward with her allegation in August 1995, yet between then
and Johnson’s December 1997 trial, prosecutors advanced multiple other theories
of the crime that directly contradicted the alleged confession. For example, in
January 1996, 5 months after Ellison came forward, lead police investigator
Anthony Richardson told a grand jury that the police believed Ford and Omar
Berry fired the shots. 9 months later, the state dropped all charges against
both Berry and Wilson.
There are other good reasons to doubt Ellison’s claims. She knew Hardy and was
a friend of his family. She was facing some financial hardship right at the
time when both the state and the sheriff’s offices were offering
well-publicized $10,000 rewards. The Alabama governor’s office announced the
reward on Aug. 2, 1995; Ellison claims the incriminating phone call happened
the very next day.
It’s also possible that Ellison was telling the truth but had been duped. Other
inmates at the time later told Johnson’s appellate attorneys that 1 inmate had
a habit of imitating his fellow inmates when he called women on the jail phone.
According to them, Johnson was one of his go-to imitations. Ellison had never
met or spoken to Johnson, so she wouldn’t have known the sound of his voice.
In 2003, Johnson’s appellate attorneys learned that the state of Alabama paid
Ellison $5,000 in 2001 for her assistance to the prosecution. It isn’t clear
why it took so long for her to receive payment, but in other cases (such as
Montez Spradley’s), such rewards have been contingent on the state winning a
conviction that holds up on direct appeal.
But the state still hadn’t turned over the check itself, or any records
associated with it. In January, more than 20 years after Johnson was tried, the
state finally turned over a copy of the check, as well as a form signed by
Judge Bahakel authorizing the payment, emails between state officials about the
reward, and an August 2001 letter from DA David Barber to the Alabama
governor’s office requesting Ellison’s reward. Prosecutors said these documents
had been “misfiled,” and only recently discovered.
In his letter to the governor’s office, Barber wrote that Ellison came forward
“in pursuant to the public offer of a reward.” That’s significant, because at
trial prosecutors summarizing Ellison’s testimony told the jury that she had
come forward solely because of “her conscience” and so that she “can sleep at
night.” At a hearing this year, Ellison testified that contrary to Barber’s
letter, she knew nothing about the reward when she came forward, or even during
the three times she testified (she testified at Johnson’s two trials, as well
as at a hearing). She claimed she learned of the money only in August 2001.
Of course, it’s possible that Ellison came forward both because she wanted to
catch a killer and she wanted the reward. But the jury never heard about there
being a reward, or about the conditions that would need to be met for Ellison
to claim it. Johnson’s post-conviction attorneys would later discover that
Ellison also told police she’d overheard another conversation several days
earlier in which a man identifying himself as Johnson denied knowing anything
about the murder. The defense and jury never heard about that either.
Ellison’s testimony was the only evidence against Johnson. As with Ford, there
was no physical evidence linking him to the crime. The girl who got Johnson
arrested, Yolanda Chambers, hadn’t testified against him. He hadn’t been
identified by any other eyewitnesses. And the police hadn’t connected him to
the bullets fired at Hardy. Nevertheless, as with Ford, the jury in Johnson’s
trial was unable to reach a verdict. At the time the mistrial was declared, the
jury stood at 10-2 to convict.
The state moved to try both men again. For the second round, Johnson would be
tried first, in August 1998. Once again, Ellison and her daughter would
testify.
- - -
From the start, the investigation into William Hardy’s murder was a morass of
ambiguous and conflicting evidence and statements from witnesses. Even setting
aside Yolanda Chambers’s ongoing lies, a simple assessment of the various
witnesses’ motivations should have indicated to law enforcement that they were
barreling down the wrong path. Chambers started telling stories that didn’t
check out only after she told police she knew nothing about the crime, and was
threatened with jail. Carla Bowen only implicated Ardragus Ford once she was
threatened with the loss of her children. Both of them had strong incentives to
provide incriminating information. On the other side, you have the witnesses
who saw Ford and Toforest Johnson at the nightclub, none of whom had much to
gain for their testimony. And then there’s Ford and Latanya Henderson, both of
whom stuck to their stories in spite of threats from law enforcement.
The investigators appear to have been afflicted with tunnel vision, a form of
cognitive bias that is common in wrongful convictions and especially in
high-profile cases. Tunnel vision, writes Keith Findley of the University of
Wisconsin Law School and the Wisconsin Innocence Project, “leads investigators,
prosecutors, judges, and defense lawyers alike to focus on a particular
conclusion and then filter all evidence in a case through the lens provided by
that conclusion.” Instead of following leads until the evidence points to a
perpetrator - a process that can be time-consuming - tunnel-visioned
investigators start with a suspect, then look for evidence to confirm their
suspicions. Exonerating evidence and leads pointing to alternate suspects tend
to be ignored.
With Hardy’s murder, investigators seemed certain that they would find their
killer within Chambers’s social circle. So they pressed her for information,
over and over, all the while ignoring the mounting evidence that she wasn’t a
reliable witness and had no connection to the crime. As time went on and the
trail grew colder, it would become increasingly difficult for any law
enforcement officials to admit - to the public or to themselves - that they had
botched the investigation.
Instead, they would proceed with bizarrely contradictory theories of the crime
based on what little evidence they had. Of all the myriad ways Alabama’s system
failed Ford, Johnson and the family of William Hardy, that might be the most
jarring. Prosecutors moved seamlessly between inherently contradictory
theories. Just a month after telling a jury that Ford shot Hardy, deputy
district attorney Jeff Wallace assured a new jury that Johnson pulled the
trigger. (When I reached Wallace by phone, he said he would not talk about a
pending case.) Just a month after Wallace matter of factly told a jury that the
forensic evidence unambiguously demonstrated that Hardy was killed by a man
firing up from a wheelchair, the state solicited testimony from the medical
examiner that the bullet trajectory was inconclusive about the position of the
shooter.
Odder still, just a month before Ford’s trial, Wallace filed a motion to
consolidate the charges in the two cases and to try both men at the same time.
It’s unclear exactly how that would have gone down. The main reason Wallace got
away with his competing theories is that he had two separate juries - he could
vouch for Chambers’s credibility to one jury, while describing her as a liar to
another. He couldn’t do both in front of the same jury. But if prosecutors
weren’t planning to argue both theories, it means that just a month before the
first trial, they had yet some other theory at the ready.
At a hearing on the motion to consolidate, there was another curious moment,
one that again suggests that just as prosecutors were set to go trial, their
theory of the crime remained fungible. Attorneys for both Johnson and Ford were
at the hearing, and both opposed consolidation. At one point, Johnson’s
attorney told the judge that Violet Ellison told him that she heard the voice
on the phone say “We shot him because he got in our s--t,” not “I.”
At Johnson’s 2nd trial, his own attorneys called Yolanda Chambers to testify.
It was a risky move. On the one hand, Chambers was the reason their client had
been arrested in the first place, yet she had just testified in another case
that someone else had committed the crime. But putting an untrustworthy witness
on the stand isn’t the best way to win over a jury. Wallace pounced. In his
closing argument, he called Chambers a “liar,” and scolded the defense for
calling such an untrustworthy witness. “Never once, not one time, did we in our
case put before you anything said before Yolanda Chambers,” he said, just
months after he’d done exactly that - albeit in front of a different jury. And
a few months later, before yet another jury, he’d do exactly that again.“ State
didn’t call her, the Defense did. I want you to remember that.”
Putting Chambers on the witness stand also contradicted the strongest evidence
exonerating Johnson - the two witnesses who put him at Tee’s Place. (His
appellate attorneys would later find eight more.) Chambers put Johnson at the
crime scene but said he didn’t commit the murder. Admitting that he was
knowingly present for a drug deal, or possibly an assault, likely hurt him with
members of the jury. And presenting contradictory stories likely only confused
them.
This time, the jury convicted. About a half-hour later, they voted 10-2 in
favor of execution. Judge Bahakel then sentenced Johnson to die.
Ardragus Ford’s 2nd trial was in June 1999. Again, the state’s case rested
almost entirely on Chambers, the very person Jeff Wallace had previously told
jurors was a liar. The defense cross-examined Chambers meticulously, forcing
her to admit to each of her lies, one at a time. It eventually go to be too
much for prosecutors, who ended the misery stipulating that Chambers had lied
about the crime to law enforcement at least 300 times. Ford was acquitted. His
attorneys didn’t even bother putting on a defense.
It’s worth emphasizing again what had just happened: The state of Alabama
attempted to get a death sentence for a man based on a theory of a murder that
directly contradicted a different theory of the same murder that the same state
- indeed, the same prosecutor - had already used to put a different man on
death row.
The U.S. Supreme Court has never ruled on whether prosecutors can argue
conflicting theories of the same crime at separate trials. But while
prosecutors aren’t required to investigate the veracity of every piece of
evidence they present, they also can’t present evidence they know to be false.
When a prosecutor argues directly contradictory theories at separate trials, he
certainly knows that he presented false evidence in one of those trials, even
if he might not know which one is false.
In 2005, the court did hear oral arguments in an Ohio case in which the state
presented contradictory theories about whether a defendant or his accomplice
had fired the fatal shot during an armed robbery that left a woman dead and her
husband wounded. But the state’s conflicting theory only came up during
sentencing, not during the guilt phase of the defendant’s trial. The court sent
the case back to state court without addressing the conflicting-theories issue.
(During oral arguments, Justice David Souter suggested hypothetically that
conflicting theories could violate due process. Justice Antonin Scalia seemed
to scoff at the suggestion.)
Wallace responded, “My recollection is that he used the word ‘I.' But,
nonetheless, that can be changed to the word ‘I.’” Was Wallace suggesting in
open court that they alter a witness statement to fit a more convenient theory
of the crime? Richard Jaffe certainly seemed to think this is what happened. He
responded, “That’s unbelievable. He’s going to - ” At that point, according to
the transcript, the judge cut Jaffe off.
In the end, Bahakel denied Wallace’s motion. There would be 2 more trials. And
the state would continue to insist on the impossible. First they would argue
that William Hardy was killed by Toforest Johson (and possibly Quintez Wilson)
but not by Ardragus Ford. Then they would argue he was killed by Ford, but not
Johnson. They never posited at any trial that both men killed Hardy, perhaps by
each firing a bullet. They couldn’t, because that was one of the few scenarios
to which no one, not even Yolanda Chambers, was willing to testify.
In a 2017 article for the Marshall Project, journalist Ken Armstrong found just
under 50 cases in which the defense argued in court fillings that the state had
argued conflicting theories of a murder. In 29 such cases the defendant was
sentenced to die, and in seven the accused has since been executed. In all but
a couple cases, the convictions were allowed to stand. In a 1999 article for
the Fordham Law Review, Michael Q. English did find that a few courts have
allowed defense attorneys to introduce a prosecutor’s conflicting statements
about a crime from a previous trial. That would at least inform the jury that
the state was advancing contradictory theories. But that approach would be
available only to the defendant who was tried second. Whoever went first would
be out of luck.
The main problem is that appellate courts tend to look at cases in isolation.
They will rarely even consider facts that aren’t in the trial record, so it’s a
tall order to ask that they consider how the state’s actions in one case might
affect another. This is exactly the approach the Alabama Criminal Court of
Appeals took when Johnson tried to argue that the contradictory theories
violated his right to due process. “There is no evidence in the record before
this Court that the prosecutor argued a different theory of the murder at
Ford’s trial,” the court wrote in a unanimous opinion denying Johnson’s appeal.
“In fact, the record in Johnson’s case does not even reveal that Ford was ever
tried for the murder of Deputy Hardy, much less that the prosecutor tried Ford
on the theory that Ford was the triggerman.” Of course, it would have been
impossible for Johnson’s counsel to have mentioned anything the prosecution
said in Ford’s second trial, because when Johnson was convicted, Ford’s second
trial hadn’t yet happened.
At the very least, seeking the death penalty for two men by claiming the
evidence supports exclusive theories of the crime would seem to violate a
prosecutor’s professional ethics. “While the practice may be considered
constitutional, it is extremely difficult to square with the understanding that
a prosecutor’s primary obligation is to do justice, not merely win cases,” says
Carissa Hessick, director of the Prosecutors and Politics Project at the
University of North Carolina School of Law. “Any prosecutor who pursues this
path should face significant scrutiny and should have to publicly explain and
defend the decision.”
- - -
Ardragus Ford’s family was able to find the money to hire Richard Jaffe, an
attorney with extensive experience trying death penalty cases. Toforest Johnson
was assigned a court-appointed attorney. There’s no evidence that the attorney
didn’t give the case his full attention, but there’s also no question that he
made mistakes. He called Yolanda Chambers to the stand. Some of his witnesses
were unprepared or underprepared. He also proposed conflicting stories to the
jury.
Johnson’s attorney also admitted in a court filing that he lacked the necessary
experience for a capital case. “Defendant’s attorney does not have the
expertise in criminal investigation work to investigate the facts and interview
the witnesses surrounding the alleged crime with which the Defendant is
charged,” he wrote. “The Defendant’s attorney has no formal training in
criminal investigation, nor do they have the capabilities and time to interview
all the potential witnesses and conduct all the investigation necessary and
essential to provide the Defendant with an adequate defense.”
That admission came in a request for the court to provide funding to hire a
private investigator. The trial court agreed but was stingy with the funds.
With what they were given, Johnson’s legal team could only afford to hire an
investigator named Steve Saxon. Johnson’s current lawyers describe him as “a
brain-damaged, alcoholic, racist, suicidal, homeless man ... who had already
been fired from at least one capital case for incompetence, had been operating
without a business license for at least five years, and who could barely manage
his own day-to-day affairs.” (Saxon has since died.)
During the time he had been hired to investigate Johnson’s case, Saxon admitted
to drinking a quarter gallon of whiskey per day. Johnson had given Saxon a list
of witnesses who would testify on his behalf; Saxon never spoke with any of
them. (Saxon at one point admitted that he refused to interview witnesses in
“dangerous” neighborhoods.) Saxon also didn’t manage to find the 10 witnesses
who have since said they saw Johnson at Tee’s Place on the night of the
killing. He failed to turn up the mitigating factors around Violet Ellison’s
testimony, or an eyewitness who said he saw a 6-foot man hovering over Hardy’s
body immediately after the shooting. (Johnson is 5-foot-5.)
After Johnson’s conviction, he was still destitute and needed an attorney to
file his appeal. Despite that his was a death penalty case, and that there was
ample reason to question his conviction, the court assigned a man named Joe
Morgan Jr. to the case. Shortly after he filed and argued Johnson’s appeal, the
Alabama Supreme Court suspended Morgan’s law license for two years. He had just
pleaded guilty to ethics violations in nine separate cases for neglecting his
clients. One state Supreme Court justice argued that the suspension was too
light, writing that Morgan “exhibited an attitude of indifference and
disrespect to his clients and to his profession,” and that “Morgan’s actions
and inactions justify requiring a lengthier rehabilitation before he resumes
the practice of law.”
“My client’s [Ardragus Ford] family had some limited financial resources,”
Jaffe says. “Toforest Johnson’s family did not. His lawyers were appointed, and
his family could not bond him out of jail. You can see how all of that affected
his defense. His investigator had serious problems, including alcoholism, that
clearly hampered his investigation. Of all the people arrested for Hardy’s
murder, he was the only one convicted. To this day, I still do not understand
why his attorneys called Yolanda Chambers to testify.”
Today, Johnson is represented by the Southern Center for Human Rights and the
Death Penalty Clinic at the University of Berkeley School of Law, two reputable
groups with experienced, well-trained death penalty attorneys. He is currently
awaiting the judge’s ruling on the issue of Ellison and the $5,000 check. If he
loses his motion, he will have exhausted his state appeals and will begin the
process of asking a federal court to review his case - a process that is
heavily deferential to the state courts.
The evidence against Johnson is flimsy, particularly for a death penalty case.
The fact that he’s still on death row demonstrates the folly of the notion that
appellate courts are adequately ensuring the fairness of criminal trials.
Johnson’s case has been heavily litigated at every level of Alabama’s criminal
court system, and yet so far the multitude of problems with how his case was
investigated, charged and tried hasn’t been enough to win him a new trial. At
this point even Jeff Wallace - the man who prosecuted Johnson - has told
Johnson’s attorneys under oath that he has doubts about their client’s guilt.
When reached by phone, Wallace said he wouldn’t comment on a pending case. But
he did offer his assessment of Johnson’s conviction in a 2014 deposition. “I
don’t think the State’s case was very strong,” he said, “because it depended on
the testimony of Violet Ellison, in my opinion.”
In 2018, Birmingham elected its first black district attorney. Danny Carr, who
began his career as a prosecutor in 2000, ran on a platform of reform. Carr
doesn’t have the authority to drop the charges against Johnson or to retry him
- the case is now in the hands of Alabama Attorney General Steve Marshall. But
if he were to speak out on the case, it could influence how Marshall’s office
proceeds.
One of the most striking things about this story is the mundanity of the
violence in the lives of people like Johnson and Ford. At age 17, Johnson
himself took a bullet to the chest during a drive-by shooting. Ford was
paralyzed from the waist down after taking a bullet while protecting his cousin
from a shooter. (Even Carr has been touched by violence - his brother was
murdered in 2001.)
After his 15-month incarceration, Quintez Wilson accumulated a lengthy record
of drug crimes and assaults before he himself was gunned down in 2008. Latanya
Henderson told the truth from the start, and for that she was arrested and
spent nearly a year in juvenile detention. Chambers told the truth in her first
interview, but was browbeaten and threatened into implicating innocent people.
She died of unknown causes in 1999, at just 20 years old. Johnson, of course,
still sits on Alabama’s death row.
There’s one other group of people victimized by the state’s ineptitude in this
case: William Hardy’s family. If Johnson is innocent - and nearly everyone
originally associated with his case now believes he is - then Hardy’s killer
was never caught, and whatever solace Hardy’s family might have been given by
Johnson’s conviction will need to be unsettled. Whatever pain the family has
managed to bury might be resurrected.
The perverse thing is that the longer a case like this drags out, the more
tempting it becomes for state officials to follow the path laid out by
Alabama’s courts: Ignore the evidence, execute Johnson and pretend he was
treated fairly. Pretend that the lives wrecked by the investigation weren’t for
naught, and that the man who actually killed Hardy didn’t slip the grip of the
law.
That isn’t justice; it’s an illusion. Unfortunately, buying into the illusion
is a lot easier than reckoning with reality. And the reality here is that any
system that could allow Johnson to be convicted, sentenced to die and remain on
death row for this long, on this dearth of evidence, is a system broken to its
core.
(source: Radley Balko for the Washington Post----al.com)
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