February 7, 2019

Ohio’s Governor Stopped an Execution Over Fears It Would Feel Like W...

At the coroner’s office in Dayton, Ohio, Dr. Mark Edgar stood over the body of Robert Van Hook. The deceased 58-year-old weighed 228 pounds; he wore blue pants, a white shirt, and identification tags around his ankles. Edgar, a professor of pathology at Emory University School of Medicine, had done countless autopsies over the years. But this would be the first time he examined the body of someone executed by the state.

Van Hook had died one day earlier, on July 18, 2018, inside the death chamber at the Southern Ohio Correctional Facility in Lucasville. After a tearful apology to his victim’s family, he was injected with 500 milligrams of midazolam — the first of a three-drug formula adopted in 2017. Media witnesses described labored breathing from Van Hook shortly afterward, including “gasping and wheezing” loud enough to be heard from the witness room. Nevertheless, compared to recent executions in Ohio, things seemed to go smoothly.

Still, Edgar had cause for concern. For the past few years he had been examining the autopsy reports of men executed using midazolam across the country. He found a disturbing pattern. A majority showed signs of pulmonary edema, an accumulation of fluid in the lungs. Several showed bloody froth that oozed from the lungs during the autopsy — evidence that the buildup had been sudden, severe, and harrowing. In a medical context, where a life is to be saved, pulmonary edema is considered an emergency — it feels like drowning. Even if someone is to be deliberately killed by the state, the Constitution is supposed to prohibit cruel and unusual punishment. To Edgar, the autopsies showed the executed men felt the panic and terror of asphyxiation before they died.

Experts likened the effect to being buried alive while feeling fire in one’s veins.

Edgar’s findings compounded a more familiar problem with midazolam. Unlike the drugs used to provide anesthesia in previous execution protocols, it was a sedative, not a barbiturate. Anesthesiologists had warned for years that even at extremely high doses, midazolam did not have the properties to render a person insensate — immune to pain — for the purpose of lethal injection. The second and third drugs in Ohio’s protocol — a paralytic that stops respiration and potassium chloride to stop the heart — were known be excruciating if injected without a proper anesthetic. Experts likened the effect to being buried alive while feeling fire in one’s veins.

The U.S. Supreme Court dismissed this evidence in the 2015 ruling Glossip v. Gross, waving forth a slew of executions using midazolam. But Edgar’s findings were new. Days before arriving in Ohio to do the autopsy on Van Hook, he had presented them publicly for the first time at a trial in Nashville, Tennessee, where lawyers were challenging plans to kill a man named Billy Ray Irick. Among the witnesses who corroborated Edgar’s conclusions was a leading pharmacologist, Dr. David Greenblatt, who did some of the earliest clinical trials of midazolam. He explained how a massive dose of the acidic drug would almost immediately begin to destroy pulmonary capillaries and lung tissues upon injection, leading to pulmonary edema. Other witnesses gave firsthand accounts of executions in which the condemned had struggled to breathe. This was compelling — if not quite exhaustive — evidence. “The ideal situation would be for me to do these autopsies myself and see exactly what I was interested in,” Edgar said on the stand in Nashville. The next day, Ohio executed Van Hook.

Ohio does not conduct autopsies following executions. But Ohio Federal Public Defender Allen Bohnert secured permission on Edgar’s behalf. “The autopsy was conducted in the usual manner,” Edgar wrote in a subsequent report. He made a Y-shaped incision into the chest and abdomen. A technician removed and weighed Van Hook’s organs and Edgar examined them, looking for anything unusual. When he got to the lungs, he found “significant abnormalities.” They were unusually heavy — one telltale sign of congestion. When he cut into them, he found a mix of blood and frothy fluid.

Of the 27 previously available autopsy reports for people executed using midazolam, Edgar had found evidence of pulmonary edema in 23. Van Hook was the 24th. A few weeks later, Tennessee used midazolam to execute Irick, who moved and made choking sounds — another grim sign. In a motion seeking a stay of execution and preliminary injunction for Warren Keith Henness, who was scheduled to die in Ohio in February 2019, Bohnert urged a federal magistrate judge to consider these recent developments. “At some point the courts cannot explain away the ever-growing mountain of evidence” against midazolam, he wrote.

Magistrate Judge Michael Merz granted an evidentiary hearing. After four days of testimony, he issued a damning 148-page order on January 14. The evidence surrounding midazolam had become far more persuasive since Merz last presided over such a proceeding. Not only was he now convinced that midazolam had no analgesic properties, but the drug was “sure or very likely” to cause pulmonary edema, which was akin to “waterboarding.” Yet Merz said he could not stop Henness’s execution. Under Glossip, people challenging lethal injection protocols had to prove that there was an alternative method readily available for the state to use to kill them. Henness had not met this burden.

“This is not a result with which the court is comfortable,” Merz wrote. “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”

Ohio seemed poised to carry out Henness’s execution. But then, on January 22, the governor’s office issued an order of its own. Newly inaugurated Gov. Mike DeWine granted a warrant of reprieve, delaying Henness’s execution until September. In the meantime, he ordered a review of the state’s options and an examination of “possible alternative drugs.”

“Agony and Horror”

Among those who have fought the legal battles over lethal injection, the events in Ohio were a big deal. Courts across the country have repeatedly upheld the use of midazolam despite mounting evidence of its dangers. Just last week, a federal judge in Alabama denied a request by Domineque Ray to be executed by nitrogen hypoxia instead of the state’s midazolam-based protocol. (That execution, scheduled for tonight, is currently on hold for unrelated reasons.) Although Merz’s order did not stop Henness’s execution, his findings were blunt and unequivocal in a way that other judges have not been — which could influence future litigation.

The reprieve for Henness was also particularly notable coming from DeWine. As Ohio’s attorney general from 2011 through 2018, he spent much of the past decade fighting to push through executions, even as Ohio adopted new and untested protocols. Ever since U.S. executions first became derailed by a shortage of sodium thiopental — the fast-acting barbiturate long used for lethal injection — states across the country had been engaged in a macabre human experiment. Ohio was particularly eager to tinker with its formulas, adopting one-drug, two-drug, and three-drug protocols over time. After the state first used midazolam in the notoriously ugly 2014 execution of Dennis McGuire, DeWine was instrumental to passing legislation to conceal the identity of pharmaceutical companies that sold the state drugs for executions. But the risk of another botched execution appears to be of more concern now that DeWine is governor. When Henness’s attorney sent him a reprieve request highlighting Merz’s ruling, he acted within 24 hours.

Like other states that have used midazolam for executions, Ohio had been cautioned before killing McGuire — one anesthesiologist warned that it could cause “agony and horror.” The execution was a ghastly ordeal. Witnesses said he grunted and fought for air, “snorting, gurgling and arching his back,” as described in a lawsuit brought by McGuire’s family. According to the suit, one prison official “mouthed ‘I’m sorry’” to his relatives in the execution chamber.

For the next 3 1/2 years, Ohio did not carry out a single execution. But other states continued to use midazolam. Although protocols varied from state to state, each relied on quantities of the drug that were well above the average therapeutic dose. Witness accounts were consistent, often describing labored breathing from the condemned.

“If the individual was in any way aware of what was happening to them it would be unbearable.”

In 2017, Edgar reviewed the autopsy report of 39-year-old Ricky Gray, executed in Virginia that January. News reports had described unusual movements after the midazolam was administered. He “looked around, moved his toes and legs,” the Richmond Times-Dispatch reported. “He appeared to take a number of deep breaths and he appeared to make snoring or groaning sounds.” Gray’s family requested his autopsy report, which was obtained by The Guardian. “It notes that ‘blood-tinged fluid is present from the mouth’ and that ‘the upper airways contains foamy liquid,’” reporter Ed Pilkington wrote. “It also finds that the body’s lungs were ‘severely congested’ and that there were ‘red cells present in the airways.’” Edgar told Pilkington it was evidence of acute pulmonary edema. “When it is this severe you can experience panic and terror,” he said. “If the individual was in any way aware of what was happening to them it would be unbearable.”

But the executions continued apace. Shortly after that revelation, Virginia used the same protocol to kill 35-year-old William Morva. Witnesses said he, too, appeared to move and gasp for air. In the fall of 2017, Ohio ended its de facto moratorium with a revamped midazolam protocol, killing Ronald Phillips and then Gary Otte, both of whom seemed to struggle, according to witnesses. A third execution, that of 69-year-old Alva Campbell, was aborted after the execution team failed to find a viable vein. (He died three months later.)

A Tipping Point

On the occasions when botched executions have made national news, prison officials have often been the ones in the spotlight. Governors and attorneys general have also attracted a share of the blame. News reports have repeatedly exposed cavalier (and sometimes illegal) attempts to find drugs for executions from sketchy sources. Yet outside legal circles, there has been comparatively little critique of the courts that have enabled such executions to go forward. In his motion before Merz, Bohnert framed the issue in terms of a deeply entrenched problem that goes beyond lethal injection: junk science and the courts’ stubborn refusal to allow new evidence to change existing law.

“This court, and others, have misapplied the science involved in lethal injection challenges involving midazolam, leading to conclusions that are inaccurate or simply not true from a scientific perspective,” Bohnert wrote. Litigants “untrained in medicine” have “muddied the factual picture,” he wrote, while judges, “typically facing the urgent press of an impending execution,” have often further distorted the issue in their rulings. Because courts base their decisions on legal precedent, Bohnert wrote, “each subsequent judicial decision has calcified those flaws, further insulating them from the rigorous re-evaluation that is necessary in the wake of executions that demonstrate a consistent pattern of troubling inmate reactions.”

“This court, and others, have misapplied the science involved in lethal injection challenges involving midazolam.”

To Edgar, this made Merz’s ruling a pleasant surprise. “He independently took a look at this information anew and came to his own conclusion,” he said. Like Bohnert, Edgar invoked examples of faulty forensics that have been exposed over the years and the duty to correct these problems in the courts. “There are so many examples of junk science,” he said. “If we’re not willing to accept and relearn [based on new findings], then we’re in serious trouble.”

When it comes to the case law on lethal injection, Glossip is a major part of the problem. Like other decisions that have enshrined junk science into law, the ruling gave legal legitimacy to the findings of a pharmacist who had been widely discredited even before Supreme Court justices heard oral arguments. Critically, Bohnert points out, the ruling conflated insensateness and unconsciousness, two concepts whose distinctions are hugely consequential. This error has been replicated by the lower courts, while execution after execution has shown that unconsciousness cannot protect people from the tortuous effects of lethal injection.

Bohnert points to an irony about Glossip and its legacy. “The fact that the states have been allowed to continue to execute using midazolam is in large part what allowed the evidence to accumulate,” he says. Although it is not clear what will happen next in Ohio, “I think we had a tipping point here.”

Elsewhere, midazolam is on its way out. Florida and Arizona have discarded the drug, while Tennessee has not used it since the Irick execution, turning instead to the electric chair — at the request of the condemned. If Alabama uses midazolam to kill Domineque Ray tonight, his execution stands to be another “data point,” in Merz’s words, more evidence that states may or may not be torturing people to death while the courts continue to look away.

The post Ohio’s Governor Stopped an Execution Over Fears It Would Feel Like Waterboarding appeared first on The Intercept.

A motel beside I-75 in Adel, GA.
December 27, 2018

Justice Denied

Hercules Brown has been in prison for murder for more than 16 years, but he has not confessed to the September 1998 murder of Donna Brown at the Taco Bell in Adel, Georgia — even though there is strong evidence pointing to his guilt, and Devonia Inman, a man unconnected to the crime, is serving a life sentence in prison for it.

Jessica Cino, a dean and law professor at Georgia State University, has spent countless hours over more than three years trying to find a way to help Inman prove his innocence, a monumental feat that means battling a court system rigged to keep him behind bars. He’s exhausted his normal appeals and courts are loath to accept a new filing based only on a contention that someone is actually innocent. In order to raise the issue, Cino would need to find new evidence of a constitutional violation — one that hasn’t been included in any of his other appeals, and one to which she could bootstrap the innocence claim.

The pro bono legal team that Cino helped to assemble has been on the hunt for this new evidence, well-aware that with the passage of time, the odds of finding a fresh constitutional violation are slim. And then, last year, they found Kim Brooks.

Brooks took a job at the Taco Bell not long after Donna Brown was murdered — in fact, she took over Brown’s position. Hercules was still working at the Taco Bell, and his behavior toward Brooks was disturbing, she said. He would “play” like he was going to rob her and asked her if she wanted to help him pull off an “inside job” to rob the store. He told her that he would “rough her up” to make it look realistic, and they could split the take.

It was the same scenario that Inman’s cousin Takeisha Pickett, then a shift manager at the Taco Bell, had reported to the Georgia Bureau of Investigation not long after Brown’s murder. No one had paid attention.

Brooks also told the legal team that Hercules had all but confessed to her. He said he’d done something “bad.” When she asked if someone else was paying for his mistake, he replied, “It’s better their life than mine.”

And like Pickett, Brooks tried to report her troubling interactions with Hercules. She first tried to tell a local Adel cop, a sergeant who would escort her to the bank to make night deposits. But he brushed her off, eventually telling her that she’d have to talk to Jamy Steinberg, the GBI agent leading the Brown murder investigation. She tried, but he apparently wasn’t interested. He told her that Donna Brown’s murderer had already been found and that the case was closed.

This all happened before the end of 1998, Brooks told the lawyers, meaning that Inman hadn’t even been indicted yet, let alone tried. The information should have been recorded in the GBI report and it should have been turned over to Inman’s defense team. Neither happened — and that’s a constitutional violation that could get Inman back into court. “I do think that a ‘bombshell’ is the best way to describe it,” says Cino. “It’s yet another corroborating witness in this whole cesspool of facts that never got untangled or even looked at by the GBI.”

In January 2018, the lawyers filed a special appeal in state court seeking to overturn Inman’s conviction based on the new evidence. The appeal is pending. Despite its strength, it’s still a longshot. “A judge should read this and be outraged and give [Inman] an evidentiary hearing,” Cino says. “Politics and realities being what they may, I can’t at all say that I am even more than 50 percent confident that that’s the outcome.”

A motel beside I-75 in Adel, GA.

A vacant building along I-75 in Adel, Ga.

Photo: Ryan Christopher Jones for The Intercept

The Wrong Man

It was in mid-2015 that we received the first email from Cino. She was writing to see if we might be interested in looking into Inman’s case.

Cino did not represent Inman, but she was convinced that he was innocent, and had taken on his case as an advocate, she told us. She shared some red flags pointing to a wrongful conviction. There was no hard evidence connecting Inman to the murder, which had taken place around 2 a.m. on September 19, 1998. The victim, a single mother named Donna Brown, was the manager at Taco Bell; she was leaving the restaurant carrying the day’s receipts when she was apparently ambushed, shot dead with a .44 revolver. The gun was never recovered, nor was any of the cash or the bank bag that was stolen from her. And none of the fingerprints lifted from her car — which was stolen and dumped nearby — matched Inman.

Instead, there was a rogues’ gallery of witnesses who fingered Inman, an outsider from California who had only been in town a little more than a month before being accused of the crime. By the time he was tried in 2001, two of the prosecution’s key witnesses had recanted their statements to the GBI, insisting on the stand that they had lied. Ten years later, yet another witness — a man who was locked up briefly with Inman and claimed that he’d confessed details of his crime — also recanted, saying he’d been coerced by police.

But most significantly, in 2011, DNA testing revealed the genetic profile of another man, Hercules Brown, on the key piece of physical evidence found at the scene: a makeshift mask fashioned from a length of gray sweatpants with two eyeholes cut into it. Not only had Hercules gone on to commit a brutal double murder in the fall of 2001, but his name had also come up in rumors about a previous murder that same year — the killing of an Indian immigrant named Shailesh Patel — which remains unsolved. In sum, during the 17 months since the murder at Taco Bell, three more grisly slayings had taken place in Adel, a town of just more than 5,000 people. The DNA evidence was damning proof that law enforcement got the wrong man in 1998 — and by failing to treat Hercules as a suspect, they were indirectly responsible for further carnage in Adel. “I mean, it’s convenient, right?” Cino notes. “The minute, he gets locked up, people stop dying in this little town. That says a lot.”

Yet in 2014, the same judge who presided over Inman’s trial declined to grant him a new one, claiming that the DNA evidence was not persuasive enough. The Georgia Supreme Court subsequently declined to intervene. This left Inman in an impossible legal predicament. As Cino explained, “All the stars have to align for somebody to be able to challenge their conviction … to have lawyers who are going to work for them and to have a judge who’s receptive to those claims.” Inman had been given that shot but was still denied, even with DNA evidence, which only exists in a fraction of cases. The state of Georgia was “pretty crafty,” Cino said, in that “they left open this sliver for Hercules Brown to just creep into the picture and still leave Devonia in prison because they were able to at least create some inference that, well, we found Hercules’s DNA at the scene but that doesn’t mean Devonia wasn’t there too. … And it makes it now impossible or almost impossible for him to use that DNA to successfully challenge his conviction.”

As we began to review the materials in Inman’s case, we were horrified by what we found: a panoply of bad practices known to wreak havoc in the criminal justice system, all of which are regularly implicated in wrongful convictions. It started with an incomplete police investigation. Law enforcement latched onto an early narrative about the crime and then consequently ignored all signs — even screaming ones — that conflicted with their chosen theory. Such tunnel vision and confirmation bias are common in cases of innocent people sent to prison. In Inman’s case, agents with the GBI failed to follow several substantial leads, including rumors that Hercules was the real man responsible for Brown’s murder.

The I-75 in Adel, GA.

The I-75 in Adel, Ga.

Photo: Ryan Christopher Jones for The Intercept

The Impossible Witness

We first went down to Cook County in November 2015, meeting Cino in Atlanta and making our way south down I-75. Cotton fields were ripe for harvest along the interstate; at Exit 39, the main entrance to Adel, a sign advertised the King Frog, an old Adel institution that once billed itself as the “Flea Market of the South,” but now mainly sells discount clothing in the shadow of a newly arrived Walmart. Although Thanksgiving was more than a week away, Christmas decorations adorned the storefronts in sleepy downtown Adel, surrounded by magnolias and palm trees.

The Taco Bell where Donna Brown was shot sits just off the interstate, across from a truck stop and surrounded by a handful of fast-food joints. We retraced the steps Brown would have taken as she carried the cash to her car, examined the area where her assailant was allegedly lying in the weeds, then drove the short route taken by her killer, turning east across the overpass covering I-75 and making a right towards the still-abandoned Pizza Hut lot several blocks away.

An old Pizza Hut in Adel, GA. On the night of the Taco Bell murder, Virginia Tatem alleges that she saw Devonia park the car in the lot after the murder at the Taco Bell across the highway.

The abandoned Pizza Hut in Adel.

Photo: Ryan Christopher Jones for The Intercept

Around the corner from the Pizza Hut was the awning where Virginia Tatem — the newspaper delivery woman who was a key eyewitness against Inman — once stood. The shelter used to house gas pumps but is now just an empty shell facing out toward the street on the corner of 4th Avenue and Adams Street. Around 2 a.m. on the night of the murder, Tatem said she was standing under the awning waiting for the nightly delivery of the Valdosta Daily Times when she heard what sounded like a gunshot coming from the other side of the highway. She then claimed to see two cars following each other, going so fast that they fishtailed when turning the corner. Despite their high speed, she said she saw clearly into each car. In the first, a black car that matched the description of Brown’s Chevrolet Monte Carlo, she saw a lone black man she would later identify as Inman. In the second, a rusty-brown-colored car, she saw four or five other black people. The cars continued down the road before coming to a stop at the boarded-up Pizza Hut and disappearing from view.

Looking out onto the street from the spot where Tatem said she stood, her claims seemed absurd. The sound she allegedly heard from the Taco Bell to the west would have had to cut through the noise from multiple lanes of traffic, both from the overpass, as well as the sound from I-75 below. The voices she supposedly heard from the Pizza Hut would have been similarly hard to hear, unless the subjects were loud, which would seem unlikely from anyone who just committed a robbery and murder. What she claimed to have seen seemed just as unlikely. She described the first driver as wearing a ribbed white tank top and dark slacks, along with a thin gold chain. But looking down toward the Pizza Hut from the awning — in broad daylight — it was hard to make out much of anything.

There was good reason to be skeptical of Tatem from the start. It had taken her more than a month after Brown’s murder to come forward with this account — and only after news of a $5,000 reward for information related to the Taco Bell murder was published in the Adel News Tribune. In two subsequent interviews and then on the witness stand at Inman’s trial, Tatem offered additional details she hadn’t previously disclosed to police — embellishments that should have been a cause for concern. Eyewitness testimony is notoriously unreliable — a leading factor in wrongful convictions — and an account that gets more detailed with the passage of time is even more suspect. Yet both police and prosecutors ignored this fact, accepting Tatem’s dramatic tale at face value.

The view from where Virginia Tatem and Lee Grimes were standing when Virginia claims to have heard the gunshot at  Taco Bell and see Devonia's car go into an abandoned Pizza Hut parking lot. Looking south.

The view, looking south, near where Virginia Tatem and Lee Grimes were standing when Tatem claims to have heard the gunshot.

Photo: Ryan Christopher Jones for The Intercept

As we explored the area between the awning and the Pizza Hut, Cino theorized that prosecutors felt that they needed Tatem to move forward with the case. Inman did not get indicted until January 1999, she pointed out. “So that means they didn’t think they had enough until they got Virginia Tatem’s last statement.” Prior to that point, “none of the forensics matched up. They don’t get any really credible witness statements.” Then “suddenly Virginia Tatum comes in and they get more until they’ve got, basically a perfect statement from her” — a description that matched their theory of the crime.

Particularly disturbing is that GBI agent Jamy Steinberg seems to have completely missed an early sign suggesting that Tatem’s story might be fabricated. On October 26, 1998, the same afternoon he first talked to Tatem, Steinberg called a man named Lee Grimes, a fellow newspaper carrier who was reportedly waiting with Tatem on the night of the murder. According to the GBI report, Grimes said he didn’t remember anything about that night. More importantly, he told Steinberg that Tatem had actually called him to talk about what she was now claiming to have seen. If this was a hint that Tatem may have been trying to gin up her story before offering it to the police, there’s is no indication that Steinberg — or anyone else — ever considered it.

Grimes was called to testify for the defense at Inman’s trial, but the examination was lackluster. He repeatedly said he didn’t remember anything about that night, including after an odd exchange: Lead prosecutor Bob Ellis recounted how, according to Tatem, Grimes had allegedly joked with her about not walking into the street to get a good look at who was driving down by the Pizza Hut because she might get shot. Grimes said he didn’t remember that “at all.”

Could it be that something did happen, and Grimes just didn’t remember it? We went to see Grimes to find out.

Lee Grimes at his home in McRae, GA. Mr. Grimes is adamant that none of what Virginia Tatem testified to actually happened, and that she is a liar who made up the story in order to collect reward money. Tatem's testimony contributed to Devonia Inman's murder conviction.

Lee Grimes, at his home in McRae, Ga.

Photo: Ryan Christopher Jones for The Intercept

“None of That Happened”

We located Grimes in a quiet town nearly two hours northeast of Adel, in a house that is a shrine to his first love: music. A former school band director, Grimes’s house is a maze of record albums — more than 20,000 of them, alphabetized on seemingly endless rows of shelving. Beatles paraphernalia is displayed throughout the house, and a collection of album covers stretches back into the laundry room.

Grimes explained that in the fall of 1998, he was on hiatus from teaching, living in Adel and delivering papers. He remembers the night of Donna Brown’s murder as well as the day he testified in Inman’s trial. And he has a singular regret: that he wasn’t more forceful when answering questions about what Tatem said she’d seen. “None of that happened, and I’ll swear on 10 stacks of Bibles … none of what she said, absolutely, positively, did not happen at all,” he said.

Grimes traced Tatem’s story to a conversation he had with her on a totally different night following the murder, after the notice of the reward had run in the paper. The two were waiting for the newspapers to be delivered when a car carrying some black people passed by. They began talking about the murder at Taco Bell. “She was telling me, ‘You know, there’s a $5,000 reward for that. It sure would be nice to get that reward.” She then made a pointed comment: “‘You know, those people right there, they could have committed that crime,’” Grimes recalls her saying. “I just thought, well, she’s looking for money.” He said he had no idea that Tatem had gotten involved in the case until sometime later, when he was contacted by Inman’s attorney. Tatem’s story, he said, was “just totally made up.”

Grimes was not sure whether Tatem ever collected the money, but he was willing to bet she had. A few years later, Tatem wrote a lengthy war novel, titled “Tripwire,” which she self-published in 2008. It centered on two women in Adel whose husbands had gone to fight in Vietnam. Grimes said there was some speculation that she had used the reward money for that — “which would be something frivolous she would do.”

Lee Grimes' home in McRae, GA.

Lee Grimes’s home in McRae.

Photo: Ryan Christopher Jones for The Intercept

Grimes last saw Tatem at a bank, several years after the trial. He decided to confront her. “I walked up to her and I asked her, ‘How are you sleeping at night?’ And she just walked away.”

Several people have tried to speak to Tatem about the Donna Brown murder over the years. She has not welcomed the attention. Aimee Maxwell, the founder and former executive director of the Georgia Innocence Project, told us that the first time she showed up at Tatem’s door, her husband ran Maxwell off with a rifle. In Cino’s experience, phone calls to the house would be picked up by a woman claiming to be Tatem’s “friend,” but who Cino and her colleagues suspected was Tatem herself.

We went to see Tatem during a subsequent visit to Cook County, stopping by her home in Hahira, a rural town just south of Adel. She was not expecting the visit. Upon answering the door, she cracked it open just a sliver, allowing for the briefest of exchanges. We said we were looking for people willing to discuss the murder of Donna Brown. “Good luck with that,” she answered. She denied that she’d been an important part of the case — “I don’t think I was key,” she said. “I was a witness. That was it.” More surprising, despite her presence at the evidentiary hearing in 2014 — which had been held to consider the DNA evidence found on the ski mask matching Hercules Brown — Tatem repeatedly claimed that she had not heard anything about any DNA evidence. “I don’t even know anything about it,” she said, adding that anything more she had to say about the case she had already said in court. “That was it and basically I don’t have any other kind of comment,” she said. “And please don’t come back.”

Despite Tatem’s insistence that she had nothing more to say, she later agreed to speak to Bill Rankin of the Atlanta Journal-Constitution. In an interview outside her home, with her grandchildren playing nearby, she cried over the fact that people kept questioning her claims and motives when it came to what she saw. She also confirmed that she had collected the reward money, just six months after the trial ended. But as she did on the stand, she adamantly denied that she had been motivated by greed. “I’m a mother of five children,” she said. “I don’t take something like that as a joke.” She told Rankin that she felt something in common with Brown, who was a mother working a dangerous night shift. There were plenty of times she felt she was in danger herself, she said. “It could have been me.”

A police car races down a country road in Adel, GA.

A police car races down a country road in Adel.

Photo: Ryan Christopher Jones for The Intercept

True Detective

Tatem’s wasn’t the only door that closed in our faces as we tried to look into the Donna Brown murder. Several key players refused to talk at all, chief among them the lead investigators. GBI agent Steinberg, a rookie with the department at the time, was laconic: The case has “been adjudicated,” he said over the phone. “You can ask, but I’m not going to discuss it with you.” This was far more than we got from then-Adel Police detective Jimmy Hill, leaving the extent of his involvement in the investigation uncertain.

Over repeated visits to Adel, it became clear that while Steinberg officially led the investigation into Brown’s murder, Hill played a key role in the case. Defense investigator Earline Goodman named him as one of the only people who could really explain why the investigation went as it did. And according to Christy Lima, Inman’s girlfriend at the time of the murder, it was Hill and the Adel police who were hounding her sister Marquetta Thomas, who implicated Inman in the crime in the days and weeks after Brown’s slaying. “They kept interrogating her,” Lima said. “They picked her up every day.”

Hill’s name appears all over the GBI’s official report, yet none of the documents are actually written by him. This is not entirely surprising: None of the officers who first responded to the call about a body in the Taco Bell parking lot recorded their initial contacts with witnesses or their observations of the scene. This basic information is simply absent from the GBI report. In fact, there are no reports from the Adel Police Department at all. At Inman’s trial, Adel Police Chief Kirk Gordon explained that his officers didn’t write reports because “we’re not going to interfere” with the GBI. Even when an Adel officer was the first to receive or develop some bit of information, he said. “What’s the use in writing it down when you can explain it to [the GBI] face to face?”

This lackadaisical approach raises serious questions, not only about what leads were communicated by local officers to the GBI in the Donna Brown case, but also about who might have exerted influence on various players — like Thomas — or on the direction of the investigation — like the decision to focus on Inman and not Hercules. Of particular concern is whether Hill held sway over such decisions. Goodman believes that is exactly what happened: “I think he’s the one that put the case together,” she said.

Inman’s relatives are certain that it was Hill who targeted Inman. They say he mouthed off to Hill and a couple of Adel police officers during his last arrest. According to his uncle, Ben Pickett, Hill said about Inman, “He ain’t getting out of here. He won’t never see the daylight of dawn around here, in this jail.” Dinah Ray, Inman’s mother recalls speaking to Inman in jail. “He told me that he had smart-mouthed a police officer,” she said. “I strongly believe this is the reason [he was targeted]. Him disrespecting authority. Does that equal to life in prison?”

devonia-inman-1544765621

Booking photos of Devonia Inman from California.

Photo: GBI

Hill, a portly, bald sexagenarian with a smile that is half glower, is a polarizing figure in Cook County. Depending on who you ask, he’s either a crack investigator with a spotless record of arresting the right person, or an aggressive and vindictive man who used whatever means necessary to clear his caseload. There seems to be no in between when it comes to Hill; a number of people we spoke to for this story refused to say anything about him on the record, but had strong opinions to share once the interview was over.

Several of his law enforcement colleagues described Hill as exceptionally talented. “Jim Hill was always a very aggressive detective. I mean, he was like your true detective. If he had the evidence you were going to get arrested. I mean, that’s all there was to it,” Tim Eidson, the former assistant district attorney, recalled. “And I will tell you, if Jim Hill ever made an arrest, I had no doubt that he had the goods.”

To Gordon he was very smart, but “a little bit loose-tongued, rough around the edges, I should say.” And former DA Bob Ellis said the investigator had a “strong personality” that some people found intimidating — though he said he never did.

But others saw Hill as a racist bully. Ben Pickett said he was “always pinning stuff on young black men.” Takeisha Pickett, Inman’s cousin, agreed, saying that she’d always heard that he was a bad cop who liked to get black people off the street whenever possible. They’re not alone in their negative assessments. Former Cook County Sheriff John Daughtrey did not mince words: “He’s a vicious little man,” he said. “He’s threatening something all the time.” And he agrees that the city’s black residents have an especially hostile view towards the man that they believe is “out to get them specifically.”

Hill, says Daughtrey, is “the most hated guy in Cook County, there’s no doubt about it.”

We got in touch with Hill in the spring of 2017, after a number of failed attempts to reach him that included trying to track him down at home, leaving phone messages with a close friend, and camping out in the lobby of the Cook County Sheriff’s Office where he now works; we left a series of notes with the receptionist. When we finally reached him by phone, he was decidedly surly. “Isn’t it a clue when I don’t return your call I don’t intend to talk with you?” he asked. He hung up before we could ask any real questions.

As we pursued our investigation, it seemed that everyone who might actually be in a position of power to correct the mistakes made in Inman’s case — from police to prosecutors to judges — had abdicated their duty to see that justice is served. Yet, others wished desperately that they could do more to help. Where Grimes regrets that he was not more forceful in pushing back against Tatem’s apocryphal story about what she saw the night of the Taco Bell murder, Marquetta Thomas harbors deep regret about the role she played sending Inman to prison.

Marquetta Thomas at her home in Baldwin, GA. in 1998, Mrs. Thomas told investigators that Devonia Inman committed a murder at the Taco Bell in Adel, GA, but then recanted at trial.

Marquetta Thomas at her home in Baldwin, Ga.

Photo: Ryan Christopher Jones for The Intercept

We met Thomas in July 2016, in Baldwin, a small town two hours northeast of Atlanta, and roughly half the size of Adel. Her two-story, white clapboard house sits on the edge of the Chattahoochee National Forest, which spills down from Tennessee. “I never heard of this town in my life,” she said, but she had settled there after being released from Lee Arrendale State Prison, just five minutes away. Wearing glasses, a red sweater vest, a bowtie, and a short-sleeved shirt that showed off an old tattoo, she reflected on her role in the case — and how much she wishes she could take it back.

Thomas was the first to insist that Inman was responsible for Donna Brown’s murder. Her motivation was twofold: She hated the way he treated her sister, Christy Lima, she said, while she also felt hounded by investigators in the days and weeks after the murder. She still doesn’t understand why the cops came to her in the first place. “It’s just like they picked me out [at] random,” she said.

Whereas her sister told investigators from the start that Inman was with her that evening — and has never changed her tune — Thomas said she was coerced into implicating Inman. “I think they were just looking to pin the crime on somebody to make their job lighter, easier, and I was a pawn in their game that they used,” she said. “It was verbal coercion because they would say, ‘Wasn’t this this?’ and I just agreed. I guess the story started getting formulated with bits and pieces they were telling me, and I just fused the story together to get [them] out of the picture.”

Thomas arguably had a further incentive to advance a narrative in which Inman alone committed the crime. There were rumors that Thomas might have played a role to herself in the crime at Taco Bell, something the state tacitly acknowledged over the course of Inman’s trial, albeit not in front of the jury. She even fit the description of the woman in the second car that Virginia Tatem allegedly saw that night. Although Thomas denies having had any role — she told us she did not know Hercules Brown — by the time the state called Thomas to testify in June 2001, she was facing bigger problems of her own, having been arrested for acting as a getaway driver in another unrelated armed robbery. Thomas was ultimately convicted and sent to prison, spending 14 years locked up for her role in that crime.

It was a life-altering blow. Thomas had four young kids when she went to prison, whose childhoods she missed completely. She described facing beatings and rape — but she was also able to turn her life around, enrolling in vocational training and getting involved with a traveling choir, in which she was able to sing and share stories of redemption at area churches. When she was released, the church helped her get back on her feet. Today she is 41; when we met, she had a good job and dedicated much of her time to the ministry as a worship leader, youth minister, and minister of music in the congregation — and was deeply involved in church outreach.

Thomas says she thinks about Inman’s case and her role in it almost every day — “every time I open my refrigerator, because the liberties of just being free and walking in the grass barefoot or being allowed to open my own refrigerator when I want” — and particularly when her son calls home. Now in his 20s, her son is serving 80 years in prison for participating in an armed robbery that ended in murder. “I’m thinking, ‘This is my karma or my reap-what-you-sow,’ because I allowed another young man’s life to be gone for a murder and robbery that he did not commit,” she said.

But ultimately, Thomas blames the police for everything that went sideways for Inman. “I think it’s them, Adel all day long — Adel city police and the GBI.”

Dinah Ray in the reflection of a painting at her home in Sacramento, CA.

Dinah Ray in the reflection of a painting at her home in Sacramento, Calif.

Photo: Ryan Christopher Jones for The Intercept

No Country for Black Men

Dinah Ray no longer feels safe in her hometown. After her son was convicted, she wrote letters to anyone she could think of who might be able to help but came to fear that the letters might make her a target. Once during a visit to Adel, the heater in the hotel room caught fire. “Me and my wife, we thought they was trying to kill us,” her husband, David, says. “I get a little paranoid when I go there,” Dinah admits. She is afraid of the police and authorities in Adel. “I don’t know what they may do.”

Growing up, she had been aware of the racial divisions in Adel — a ditch near her mother’s house separated the black side of town from the white side. “We would cross that ditch to go to the store sometimes,” she said, and an elderly white couple would let their dog loose after her and her siblings. Still, Dinah had felt it was a good place to live. But not anymore. “After that trial, it changed my whole perspective on Adel,” Dinah says. “I told my sisters, ‘Adel is no place for a black man. You need to take your boys away from here.’”

Dinah and David still live in Sacramento, in a white house with a basketball hoop over the garage. On a weeknight in September 2016, they shared old photographs of Inman growing up. There is a photograph of his sister reading to him as a toddler, a shot of teenage Devonia wearing denim from head to toe, standing next to a Christmas tree. In another, he is dressed in a white suit and sunglasses. Even when he was a little boy, he had loved to dress up, often in military garb, mimicking his biological father. “He loved to look nice,” Dinah says.

It was hard for Dinah to leave Inman in Adel. “He didn’t want to stay, and my wife didn’t want to leave him,” David says. “She cried the whole ride back.” Dinah calls it “the worst thing I could have ever done. It destroyed our lives.” The family attended the trial but was not allowed in the courtroom for most of the proceedings. “Even with the little information that we heard during the trial, I still thought my son was coming home,” David says. “To me, the evidence that they had, they didn’t have nothing.”

After the verdict came down, they remember a young woman who was a witness for the state had approached Dinah. They later identified her as LarRisha Chapman, who first claimed to see Inman in the weeds but later recanted in a letter and on the stand. “She was crying, and she said that she was sorry, that she didn’t even know my son,” Dinah says, “that they were just harassing her, and they made her say it.”

Dinah Ray at her home in Sacramento, CA.

Dinah Ray, at her home in Sacramento.

Photo: Ryan Christopher Jones for The Intercept

Inman writes frequent letters to his family; Dinah was going to find some letters to share when Inman’s cousin, Takeisha Pickett, arrived at the house. Pickett, who previously lived in Adel and worked at the Taco Bell prior to the murder, could have been a crucial source of information, had investigators taken her seriously. On multiple occasions, she tried to provide a critical tip: In the months leading to the crime, Hercules Brown had asked her if she would help him rob the Taco Bell. “He said it to me maybe twice and I brushed him off on it,” she said. “Then a month or two later, this happens.”

In high school, Pickett knew Hercules as a football player from a well-to-do family. “When I started working at Taco Bell, I was introduced to a different Hercules,” she said, a guy who had gotten into drugs. Regardless, the two got along, she says. As a shift supervisor, she would sometimes close the restaurant with him. “He gave me a ride home one night and we came in for a little while,” she said. That’s when he said, “‘Man, you should let me rob you one night,’ or whatever.” Pickett scoffed — there wasn’t enough money at the Taco Bell to make it worth robbing, she said. “He just left it alone for a little while. Then maybe a couple of weeks later, he brought it up again. Then I think we might have been at work. He was like, ‘Man, you should let me do it, Keesh.’ I was like, ‘Man, you trippin.’ That was that.”

By the time she heard about the murder, Pickett had left her job to work at Lowe’s. When Steinberg came seeking information about Inman, she says, “I was like, ‘Hercules Brown wanted to rob the Taco Bell.’” In response, she remembers him saying, “That’s not relevant to what we’re talking about.” She never heard anything further until she was subpoenaed for trial.

In a two-page summary included in the GBI report, Steinberg makes no mention of this part of his interview with Pickett. Indeed, despite the constant chatter among members of the community that Hercules was involved, there are virtually no indications that Steinberg looked into the rumors. Later, Pickett says, when she went to court to testify at trial, she met in a small room with Jimmy Hill and Bob Ellis, repeating to them what she had told Steinberg. But she was dismissed.

By then, Hercules already sat in a jail cell for the brutal killing of William Bennett and Rebecca Browning months before. Bennett’s death still saddens Pickett — she knew his daughter from school, she said, and “I loved him because he made the best chili dogs ever.” Like so many others in Adel, Pickett is certain that their deaths could have been prevented if Hercules had ever been considered as a suspect for the murder at Taco Bell.

David suggested that the murder of Shailesh Patel might have been avoided too. “To this day, I think if they would have listened to us, the other three people that got killed later … they would be still alive,” he says, “and then my son would be home with us.”

The home where Shailesh Patel was found murdered in the spring of 2000, months before the Bennett/Browning murder committed by Hercules Brown.

The home where Shailesh Patel was found murdered in the spring of 2000.

Photo: Ryan Christopher Jones for The Intercept

Sealed Away

For all the lingering trauma over the bloody chapter in Adel, among the members of the Patel family, the death of their loved one has gone largely unspoken for years.

Today Manishh Patel has no recollection of speaking to the Adel News Tribune about his uncle’s death in 2001. At the time he was a college student in Atlanta, majoring in business. He now manages a cheap motel in Macon, Georgia, where we met last summer, along with his uncle, Haribai. Like several members of the family’s older generation, who began arriving in the U.S. in the late 1970s, Haribai does not speak fluent English, relying on Manishh to translate. Shailesh Patel was his younger brother, Haribai explained through his nephew. After he was killed, “I couldn’t think for three months.”

Manishh explained that his uncle’s murder was only the first in a series of horrible tragedies that gripped the family in 2000. After his death, Shailesh had been cremated and the family had gone to Savannah to spread his ashes in the ocean. On the way home, the family got into a car accident, which killed Shailesh’s young daughter. Soon after that, Shailesh’s mother died. The family was in a constant state of shock and mourning. Haribai “was nervous all the time. Just scared all the time,” Manishh says. “It was just a bad time for our family.”

If the Patels were too emotionally burdened to keep tabs on the investigation into Shailesh’s death, the authorities were not providing any information. On the profile of the unsolved murder, the GBI website puts two names as the officers in charge: GBI agent Mike Clayton, who also participated in the Donna Brown investigation, and Adel Police detective Jimmy Hill. The names don’t ring a bell within the Patel family. Nobody from law enforcement ever called them, Manishh explained. Instead they got word that something bad had happened from another Indian acquaintance in Adel, who called them the day after the murder. Manishh’s father went to the scene but was turned away. The first time an agent came to talk to them it was days later, at a motel the family owned in Locust Grove.

It is hard to piece together who spoke to the GBI and when. Harabai “was there, but he didn’t talk to anybody,” Manishh explained. “It was always some relative or a cousin or somebody that did all the talking and then told him what they said.” He estimated that the GBI agent stayed for 20 to 30 minutes, asking basic questions. “And then that was the last what they heard from him.”

The EZ Mart (now Adel Food Mart) where Shailesh Patel was working the night, before he was murdered at home. He was in Adel to fill in for his brother-in-law at the EZ Mart.

The EZ Mart (now Adel Food Mart) where Shailesh Patel was working the night before he was murdered.

Photo: Ryan Christopher Jones for The Intercept

At one point during our interview, as he translated for Haribai, Manishh was told something he had never heard, a revelation that stunned and confused him. According to his uncle, “the GBI came up there and said, ‘If y’all want to proceed on this case, y’all have to help us pay for the investigation, at least 30 to 40 percent of it.’” The claim sounded bizarre: Families of victims are certainly not expected to cover the cost of a state investigation. It is unclear whether there was a miscommunication or even who had the conversation in question with the GBI. (Mark Pro, the GBI agent who insists that the investigation into the case is ongoing, called the claim “ridiculous.”) Regardless, the Patels have remained under the impression for years that the murder of their loved one had gone unsolved because they could not afford to pay for it.

“We never had any kind of crime like this in our family even before or after,” Manishh explained. The older generation in the immigrant family were outsiders to the criminal justice system in the United States. They did not feel empowered to push or question the GBI. And the language barrier made things that much harder. When a news station put together a public service announcement asking for tips to solve the murder, the job fell to Manishh’s cousin, who was similarly young at the time.

“I remember the cousins used to talk about it like, ‘What’s going on?’ Like, ‘What happened?’” Manishh recalls. But they did not want to upset their parents by bringing it up. “Even just bringing this up right now is even hard for them,” he said. “Because they kind of sealed it away a little bit, you know? … They’d rather be free, not have to think about this no more.”

Still, Manishh wishes that he could know what happened. “What kind of investigation they did. … Was it a forced entry or not? What was the story?” He wonders if the killer targeted Shailesh or meant to go after his brother-in-law, Vishnu, who was the one living at the house on Gordon Avenue, where Shailesh was killed, the one who brought Shailesh to Adel in the first place. “What happened?” Mannish asks. “Even if it was Hercules Brown, what was he thinking?”

It has been more than seven years since the DNA results from the mask came back with a match to Hercules. Inman’s parents remember exactly where they were when they got the phone call from the Georgia Innocence Project. “All we could do was cry,” says Dinah Ray. “We thought, this is it.  He’s going to be coming home soon. But that didn’t happen.”

David Ray becomes emotional as he describes their attempts for help. His wife wrote to everybody she could think of — even the president, he says. “We still can’t believe this. This is supposed to be the justice system?  My son been wrongly accused,” he said. “Something is wrong with this system.  It needs to be checked again.”

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The post Justice Denied appeared first on The Intercept.

WASHINGTON, DC - DECEMBER 19: Senator Corry Booker (D-NJ) speaks on the passage of the First Step Act on December 19, 2018 in Washington, DC. President Donald Trump said he would sign the legislation, which would reduce the number of inmates in the nation’s crowded prisons by giving judges more discretion in sentencing offenders for nonviolent crimes and strengthen rehabilitation programs for former prisoners. (Photo by Tasos Katopodis/Getty Images)
December 22, 2018

The First Step Act Could Be a Big Gift to CoreCivic and the Private Pr...

On the day the U.S. Senate passed the First Step Act, the much-heralded federal criminal justice reform bill just signed into law, 63-year-old Bill Anderson stood before a joint subcommittee of the Tennessee General Assembly. With his wife Teresa, Anderson had traveled from Cleveland, Tennessee, far from Washington, D.C., and a nearly three-hour drive from downtown Nashville.

“We’re here because of the death of our son,” Anderson began. “On December 6, 2018, he was found hanging in his cell in Trousdale Turner.” The facility is the largest private prison in Tennessee and one of the most dangerous, beset by staff shortages, gang activity and inadequate medical care. News reports, whistleblowers, and families like the Andersons have long raised alarm about Trousdale, where numerous people have died since it opened in 2016.

The hearing was set to follow up on a damning audit in 2017. Run by CoreCivic, the Nashville-based company formerly known as the Corrections Corporation of America, Trousdale opened under a $276-million contract, promising programs aimed at rehabilitation, from job training to drug counseling. Instead it quickly came to embody the neglect and impunity that has made private prison companies notorious nationwide.

Although the state relies on CoreCivic to house a third of its incarcerated population, the company’s recent track record has prompted local lawmakers to threaten its operations in Tennessee. For a fleeting moment toward the end of the Obama administration, the company appeared to be on the brink of losing business at the federal level as well. But buoyed by Donald Trump’s election — and after rebranding itself as a “government solutions company” — CoreCivic continues to do steady business. A “zero tolerance” immigration policy has fueled demand for immigration detention centers, where miserable conditions have also proven deadly. Like Ross Anderson, who would have turned 35 this week, immigrants held at its facilities have died by suicide after their mental illness went untreated.

In a checkered shirt and with a long beard, Bill Anderson maintained his composure as he spoke of his son. But his grief was raw. His son’s suicide occurred exactly three years after a “psychotic breakdown,” when he fatally shot his girlfriend and her 5-year-old child. Diagnosed as schizophrenic, he was driven by delusions and did not comprehend his own actions, his father explained. Prosecutors wanted the death penalty but ultimately offered a plea deal, according to the local press, citing a “significant chance that he would have been found not guilty by reason of insanity.” Despite a recommendation that Anderson’s son be committed to a mental institution, he was instead sent to Trousdale. After his death, the family was notified by a prison chaplain but never heard from anyone else. “We’re tormented knowing he died alone in a place where no one loved him, and he was just a number,” Anderson said, his voice breaking.

Anderson was still speaking when Republican Sen. Mike Bell, acting as committee chair, interrupted. “Your three minutes are up,” he said. As he prepared to move on, Teresa Anderson, who had wept quietly into a tissue as her husband spoke, held up her son’s obituary from the Cleveland Daily Banner. “We got our information from the newspaper and from no one else,” she said. Repeated phone calls had never been returned. “We just want answers,” her husband said. “And I don’t think that’s unreasonable at all.”

Anderson was only the second witness to speak at the hearing that morning. But his testimony proved too much for Democratic Rep. Bo Mitchell, who erupted in frustration. It was just last year that the committee had heard similarly disturbing accounts about CoreCivic’s facilities. “I’m sick of hearing citizens of this state come in here with these stories. And then we tell ’em, Hey, your son’s life is worth three minutes,” he said. The state of Tennessee pays CoreCivic hundreds of millions of dollars in contracts, then stands by as people die in its prisons, imposing fines that barely make a dent in its bottom line.

“We do nothing, again and again and again,” Mitchell fumed. No one from the company had even bothered to show up to the hearing.

WASHINGTON, DC - DECEMBER 19: Senator Corry Booker (D-NJ) speaks on the passage of the First Step Act on December 19, 2018 in Washington, DC. President Donald Trump said he would sign the legislation, which would reduce the number of inmates in the nation’s crowded prisons by giving judges more discretion in sentencing offenders for nonviolent crimes and strengthen rehabilitation programs for former prisoners. (Photo by Tasos Katopodis/Getty Images)Sen. Cory Booker speaks on the passage of the First Step Act on Dec. 19, 2018 in Washington, D.C.

Photo: Tasos Katopodis/Getty Images

Part of the Solution

As the hearing in Nashville was underway Tuesday morning, lawmakers in Washington, D.C. were gearing up for a different fight. After months of wrangling and mixed signals from the president, the First Step Act was tantalizingly close to becoming law. A series of “poison pill” amendments threatened to sink the landmark legislation at the eleventh hour, with Arkansas Sen. Tom Cotton raising the specter of violent criminals unleashed upon society. But the scaremongering proved unconvincing. By 9 p.m. Tuesday, the amendments had been overwhelmingly defeated. On Friday, Trump signed the bill into law.

In a political climate that feels endlessly dark and divisive, the successful passage of bipartisan criminal justice reform feels to many like an unmitigated good, if not miraculous. Since it was first passed by the House in May, the First Step Act won over skeptics from across the political spectrum — and for some good reasons. Among its bright spots are improvements on the conditions of confinement, particularly for women, as well as a number of hard-fought sentencing reforms. Federal judges will have more discretion going forward in some nonviolent drug cases. And for thousands of people in federal prison — including those denied clemency by the Obama administration — the law offers a potential path to early release.

But while it has been hailed as the most significant criminal justice reform measure in a generation, most agree that the First Step Act has limited reach. Lobbying by law enforcement reduced even further the already limited pool of individuals eligible for its central provisions; a list of revisions released by the Judiciary Committee last week included 18 bullet points of “disqualifying offenses,” from arson to assault to “felonies committed while in a dangerous street gang.” Many have also decried the categorical exclusion of immigrants, who represent more than half of all federal prosecutions. Within a federal prison population that represents less than 15 percent of those behind bars in this country, the First Step Act will directly assist a relative handful of carefully vetted individuals — a fraction within a fraction of the country’s 2.1 million incarcerated people.

At the same time, critics of the First Step Act worry that it could be far-reaching in other ways. Some warn of unintended consequences down the line. Implementing the First Step Act will rely on infrastructure that has yet to be built — and which could give opportunities for companies like CoreCivic to expand their business. Indeed, along with its main competitor, GEO Group, CoreCivic enthusiastically backed the First Step Act. Both corporations have spent years repositioning themselves from private prison firms to providers of re-entry services — the very kinds of “evidence-based” tools that the legislation repeatedly invokes.

For its part, CoreCivic insists that prison reform like the First Step Act is central to its values. After all, the law’s stated goal is “to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison” — a mission it claims to share. In a holiday greeting published on the company’s website this week, CEO Damon Hininger boasted about the ways that CoreCivic spent the year “building a company culture focused on reentry.” There was the release of CoreCivic’s “first-ever Reentry Report,” for example, as well as an “inaugural Reentry Conference,” where the company shared ideas and best practices with national re-entry experts. “As I visited facilities in 2018,” Hininger wrote, “I could see a growing understanding that each of us is a reentry professional and that we all have a hand in helping the individuals in our care put their lives back on track.”

Hininger’s letter was accompanied by a photo of smiling executives holding shovels adorned with red, white, and blue ribbons. Two days later, as the First Step Act made its way to the Oval Office, Hininger released a congratulatory statement. “We’ve never been better positioned to be part of the solution to one of the most costly, complex and longstanding challenges our country faces,” he wrote, adding, “We couldn’t be more excited about the work ahead and the difference we feel we can make for the American people.”

The Treatment Industrial Complex

It is hard to say specifically how much CoreCivic stands to gain from the First Step Act. Its design and implementation will be largely up to the U.S. attorney general, who within 180 days of the enactment of the law “shall develop and release a risk assessment system” to determine who should be eligible to enter programs to facilitate re-entry. This part of the law has sparked particular alarm, since evidence shows that the algorithms used to calculate risk amount to little more than racial profiling.

The attorney general is also responsible for guiding the implementation of the programs, “developing policies for the warden of each prison of the Bureau of Prisons to enter into partnerships, subject to the availability of appropriations.” In a December 17 advocacy letter, the American Civil Liberties Union and Leadership Conference flagged this provision as one cause for concern, specifically the clause that allows for partnerships with “private entities.” This “could result in the further privatization of what should be public functions and would allow private entities to unduly profit from incarceration,” it warned.

For CoreCivic, a company synonymous with prison profiteering, this is precisely the point. The Tampa Bay Times recently reported that the bill “authorizes a $375 million expansion of post-prison services for inmates transitioning back into society” — the very products CoreCivic has spent years developing.

“These companies are very savvy,” says Alex Friedmann, associate director of the Human Rights Defense Center and a leading expert on the private prison industry. Based in Nashville, Friedmann was himself once incarcerated at a CoreCivic prison; in the years since his release, he has dedicated himself to investigating the company and others like it. He was also among those who testified at before Tennessee lawmakers earlier this week, providing context for the death of Ross Anderson. For all the drama and disturbing testimony, there was little that surprised him, Friedmann said. CoreCivic has spent decades embroiled in scandal, without paying any real consequences. As far as its potential profiting from the First Step Act, it is “business as usual.”

Friedmann traces CoreCivic’s involvement in re-entry to 2010 and 2011, when the national prison population began to level off. Private prison companies “diversified to other things,” entering the market for electronic tracking and re-entry facilities. As prison reform offering alternatives to incarceration went mainstream, a vast realm of “rehabilitative” services proved lucrative. A 2014 report co-authored by American Friends Service Committee, Grassroots Leadership, and the Southern Center for Human Rights traced the contours of the burgeoning “treatment industry complex,” showing the myriad ways in which prison profiteers had expanded their services to include “alternative” programs and technologies like GPS ankle bracelets for electronic monitoring.

As it continued to roll out new products to meet the demand for supervised re-entry, CoreCivic did what the industry has always done: pushed for more laws that would be good for business. In 2017, CoreCivic announced a stepped-up lobbying campaign to reduce recidivism, along with support for political candidates who support reform efforts. “A lot of folks would assume that we have a view that the status quo is fine, and that’s just not our view,” one executive told reporters. “We want to be a part of the solution.”

Incentives and Rewards

The 2014 report on the “treatment industrial complex” issued a prescient warning against expanding the kind of alternatives to incarceration enshrined in the First Step Act. Community confinement may be preferable to a prison cell, but the increased use of electronic monitoring can risk putting “more people on stricter forms of supervision than is necessary, for longer than is warranted.” The report also urged readers to be wary of allowing companies like CoreCivic to influence legislation. “The role of for-profit prison corporations in these important policy discussions could mean the difference between reforms that truly address human needs and a destructive ‘widening of the net’ that only serves to increase the level of control and surveillance at the expense of public safety.”

Friedmann says that in the grand scheme of things — and relative to the billions such companies make every year — the financial rewards offered by the First Step Act are not likely to be huge. “What it does is it perpetuates the industry,” he said. “It gives them another inroad to do what they do, which is to profit off incarceration.”

For some, this fulfills fears that have been a long time coming. In 2017, the Federal Bureau of Prisons began quietly defunding halfway houses across the country. Some 16 facilities lost their contracts; while the Trump administration claimed the facilities were “underutilized,” observers saw something more strategic underway. “While it is too early to say what that portends,” Prison Legal News reported earlier this year, “some critics believe the BOP is realigning its residential reentry center portfolio to make room for halfway houses operated by private prison firms that made substantial donations to President Trump’s election campaign or inauguration fund.”

DeAnna Hoskins, an outspoken critic of the First Step Act and executive director of JustLeadershipUSA, was working at the Department of Justice when the halfway house contracts were ended. Formerly incarcerated in Indiana, Hoskins had been through the reentry process herself. She remembers the concern expressed by members of Congress whose constituents said the funding was still urgently needed. “The Bureau of Prisons contracts out 100 percent of their re-entry center beds,” Hoskins explains. By slashing the existing halfway houses, then passing laws that rely on transitional housing, “now you just opened up the door for GEO Group and CoreCivic to come in.”

Like many racial justice activists, Hoskins worries that the First Step Act risks replacing “one form of incarceration with another” by placing more and more people on electronic monitoring. The contracts for such technology can be particularly exploitative since they can rely upon the subjects of such monitoring — disproportionately poor people and communities of color — to pay for the devices themselves. Once private firms have secured contracts to provide such tools, she warns, there is no incentive to reduce their use. “What is the benefit for GEO Group or CoreCivic to make sure people are successfully weaned off of home incarceration?”

Oversight and Accountability

Among progressive organizers who fought to pass the First Step Act, few if any would welcome the prospect of CoreCivic cashing in on the legislation. “We absolutely are not willing to have this be a moneymaking endeavor where people are profiting off of somebody else’s struggle,” says Erin Haney, policy director of advocacy group #Cut50, one of the leading champions of the law. Ensuring that the law is implemented responsibly has been a central concern, Haney says — and indeed, many groups on the left only endorsed the bill after language was added to address the need for oversight and accountability, particularly over the risk-assessment tools.

Haney points to one important safeguard, courtesy of an amendment by Rep. Sheila Jackson Lee — an Independent Review Committee made up of six experts, who will monitor the rollout of the First Step Act. “The attorney general is required to report how this is going,” Haney says. She stresses that, as with the public advocacy for the legislation, which put formerly incarcerated people front and center, those with lived experience will play a crucial role. After all, they know better than anyone what works and what doesn’t when attempting to rejoin the outside world after prison.

Still, the language of the law offers few guarantees. Vivian Nixon, executive director of College and Community Fellowship, worries that the First Step Act is full of holes. “On the surface, a lot of this stuff looks good,” she said. But digging deeper into the text, she sees ambiguities and red flags. “Where is the money gonna go?” she asks. “And what are the long-term implications for the communities that are already impacted in a disparate way by our justice system?” 

Like Hoskins, Nixon also spent years behind bars. She says she has a lot of respect for those who fought to pass the First Step Act. But she also knows how ruthless the criminal justice system can be when it stands to benefit off the backs of incarcerated people. When she was in prison in New York state, she said, one of the available jobs was working for Prison Industries to weld together desks — those old, gray metal desks you used to see in government buildings,” she says. “And you had to sign a waiver that if you got hurt, if you chopped off your finger, if you burned a hole in your eye, no matter what happened to you, you could not recoup any rewards from the state.”

Indeed, one provision of the First Step Act that has received little scrutiny calls for “expanding inmate employment through Federal Prison Industries,” while auditing its “effectiveness in reducing recidivism.” What this will mean in practical terms is, like many things, hard to say for sure.

No One Would Listen

Before the hearing in Nashville concluded on Tuesday, lawmakers had heard more disturbing testimony about CoreCivic facilities in Tennessee. A woman talked about her son, an Army veteran with PTSD and bipolar disorder who is not eligible for any of the programs offered at Trousdale and has had problems receiving basic medical care. “They don’t care about rehabilitation,” she said. 

Another witness spoke on behalf of a friend incarcerated at a different CoreCivic prison, where a regimen of constant lockdowns means that he is not allowed outside his cell for a week or two at a time. In a diary entry written over the summer, his friend described how the water and electricity were both shut down, leading to an oppressive combination of heat and the foul stench of his overflowing toilet, which was like an “open sewer.”

Finally, a man named Edwin Steakley approached the mic and said he had been released from Trousdale earlier this year. Wearing a yarmulke and an anguished expression, he said he had been violently targeted because he is Jewish, twice gang raped and forced to perform oral sex. When he tried to tell the proper authorities, no one would listen, he said. He could not even call the federal hotline devised by another major federal reform, the Prison Rape Elimination Act.

There was no record of the incident in the audit before the lawmakers. Tennessee Department of Correction Commissioner Tony Parker vowed to look into it. But he defended CoreCivic throughout the hearing. The company remains a valuable partner, he said. “They work well with us to try to correct these issues.”

Parker also pointed out that a number of the problems faced at Trousdale exist at state facilities too. Indeed, his predecessor was often under fire for prison conditions in Tennessee. Not long after Trousdale opened, that commissioner left to work for GEO Group.

The post The First Step Act Could Be a Big Gift to CoreCivic and the Private Prison Industry appeared first on The Intercept.

The intersection where the Bennett and Browning murders occurred in Adel, GA in 2000. The murders were at a small grocery store that has since been torn down.
December 20, 2018

Revisiting the Taco Bell Killing

In the fall of 2001, lawmakers in Cook County, Georgia voted to raise taxes for the coming year. The $1.75 million hike passed “unanimously but reluctantly,” according to the Adel News Tribune, which cited large expenditures in the name of law and order. There was the opening of the new county jail, requiring new staff and equipment, but, more significantly, the previous spring Adel had seen its first death penalty trial in a generation. The weeklong trial of 20-year-old Devonia Inman for the killing of a single mother named Donna Brown “quadrupled the Superior Court budget,” according to the newspaper. The sequestered jurors were housed in a motel, fed three meals a day, and escorted by police at all times. Now, close on the heels of Inman’s conviction, the county faced the prospect of yet another capital trial.

Kirk Gordon was Adel’s police chief at the time. “You’re not going to find many smaller counties that’s going after the death penalty if they can get by with life,” he says. “The cost of a big trial can bankrupt a county.” But 2001 was no ordinary year in Adel. A string of murders had recently gripped the small rural town, stirring fear, anxiety, and collective cries for justice. The first was the murder of  Donna Brown, who was shot in a Taco Bell parking lot in September 1998, for which Inman stood trial. The second, in April 2000, was the brutal killing of an Indian immigrant named Shailesh Patel, a crime that remains unsolved — and largely forgotten in Adel today. The third was a brazen double murder committed in broad daylight in the fall of 2000. In that case, a man named Hercules Brown had been arrested for killing two beloved members of the community — William Carroll Bennett and his employee, Rebecca Browning — at a popular grocery store and lunch spot, Bennett’s Cash and Carry. As Inman’s trial came to a close — ultimately ending in a life sentence — Hercules was facing his own capital trial.

Prosecutors had every reason to feel confident that they could win a death sentence this time. The state had come close to sending Inman to death row, despite its relatively weak case — in their first vote during deliberations, nearly half the jurors favored the death penalty. By comparison, the evidence against Hercules was airtight. What’s more, the Bennett family wanted the death penalty — and Bennett’s older brother, Buck, was one of the county commissioners who voted to make sure there was money in the budget.

The intersection where the Bennett and Browning murders occurred in Adel, GA in 2000. The murders were at a small grocery store that has since been torn down.

An intersection near the site where the Bennett and Browning were murdered in Adel.

Photo: Ryan Christopher Jones for The Intercept

Yet it would never come to pass. Shortly before his trial was set to begin in 2002, Hercules cut a plea deal with prosecutors. In exchange for a life sentence, he would divulge a piece of evidence that had eluded the Georgia Bureau of Investigation: the identity of his accomplice, whom Hercules had long refused to name. The man, 23-year-old Wesley Mason, had remained on the streets for more than a year, much to the anger and dismay of Adel’s residents. In one of several outraged columns, News Tribune editor-in-chief Ann Knight chided the GBI for leaving the town vulnerable to a killer on the loose, calling on Adel residents to make their voices heard. “Do you want the next crime victim to be you or your father, your grandfather, maybe your wife?”

After giving up Mason, Hercules swiftly went from protecting his co-defendant to pinning everything on him. It had been Mason’s idea to rob the store, Hercules said, and it was Mason who attacked both Bennett and Browning with a baseball bat. Although Hercules admitted that he grabbed the store’s cash register — throwing it at two eyewitnesses immediately following the crime — he implied that this, too, had been Mason’s idea. But Mason, who had initially denied being there at all, told GBI agent Jamy Steinberg the opposite: It was Hercules who committed the murders, beating both Bennett and Browning to death, completely out of the blue.

 

There is no indication in the available records that anyone sought to determine who actually committed the grisly crime. The lack of clarity still distresses Bennett’s widow, Gail, who left Adel following her husband’s death. “Which one did what, I have no idea,” she says about Mason and Hercules. “It frustrates you, because you don’t know. You don’t.”

With Hercules headed to prison for life in May 2002, it was Mason who now faced a possible death sentence. It would be up to his appointed defense attorneys to prove that Mason was the less culpable party, that only Hercules was capable of such heinous acts. This would mean finding out whatever they could about Hercules’s history of violence, a search that would soon raise new questions about other murders in Adel.

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A crime scene photo of the Taco Bell parking lot where Donna Brown was murdered in 1998.

Photo: GBI

What Really Happened at Taco Bell?

Defense attorney Josh Moore works in a large office building in the heart of Atlanta that is home to the State Bar of Georgia. On a weekday in 2017, he sat at his desk, surrounded by case files, a drawing by his young son hanging on the wall. As the appellate director of the Office of the Georgia Capital Defender, Moore has spent more than 15 years trying to save his clients from death row — including Wesley Mason, back in 2003. As Moore recalls, Mason insisted that although he was present when Bennett and Browning were murdered, he had no idea that Hercules would go on a killing spree and he did not participate in the violence. “So the question was, how much of it was Wesley Mason and how much of it was Hercules Brown?” Moore recalls. The answer would be key to keeping his client off death row.

“I quickly recognized that a deeper understanding of Hercules Brown was critical to our defense,” Moore says. He drove the three hours south to Adel on I-75. Almost immediately he began to hear stories about how Hercules was the person responsible for the murder of Donna Brown at the Taco Bell in 1998 — and that the wrong man had gone to prison for life. The rumors were “rampant,” Moore recalls, but he could not get anyone to go on the record. “Everybody was saying that this is what happened. And everyone was saying, as is typical in a place like Adel, they didn’t want to talk about it.”

Indeed, while Mason had no violent criminal history, Hercules’s recent past was checkered with violent incidents. In June 1999, he was accused of attacking a woman — the mother of a drug dealer — by pulling her out of a car and kicking her in the head. “It looked like she had been in a fight with Mike Tyson,” former Adel police Officer Tim Balch recalled. But the case was never prosecuted because the woman declined to cooperate. In July 2000, Hercules was accused of knocking a man on a bicycle to the ground and wailing on him until witnesses restrained him. The man was hospitalized for three days. Hercules was sentenced to 12 months of probation.

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A yearbook photo of Hercules Brown from Cook County High School.

Photo: Liliana Segura/The Intercept

And just weeks before the murders of Bennett and Browning, in September 2000 Hercules was arrested again — for an attempted robbery at another grocery store less than a mile from Bennett’s. Balch had received word from a confidential informant that the robbery was about to go down; he made a beeline to the market and spotted Hercules driving his blue Cadillac. After pulling him over and searching the car, Balch found crack cocaine, a 40-caliber pistol, and in the trunk, a black cloth cap with two eyeholes cut into it — a makeshift mask not unlike the one that had been found in Donna Brown’s car in 1998.

But as he had in the past, Hercules was able to escape consequence thanks to one person: his mother, Lucinda Brown. When Balch arrived with him at the police station, Lucinda was already there. She began “cussing me out about how her son would never have done any of this,” he recalled. Balch is not easily intimidated. But he held his tongue. Lucinda was well-known among local cops and prosecutors — and well-respected among Adel’s mostly white leadership. As a top employee at the Division of Family and Children Services, officers like Balch relied on Lucinda to help them solve child abuse cases. She was not shy about intervening when her son got in trouble. The dynamic “led to a lot of…problems,” Balch said. Hercules was quickly released.

That Hercules was not locked up then haunts Gail Bennett. She’s certain that he should have been jailed — and likely long before the attempted robbery. If police had ever considered him seriously as a suspect for the earlier murders in Adel, she believes that her husband would still be alive. “Starting with the Taco Bell [murder] on forward, as much stuff as Hercules had gotten into, yes, I thoroughly believe it could have been prevented,” she said.

Josh Moore soon began to suspect the same thing. In fact, the more time he spent investigating, the more he heard that Hercules might be responsible for yet another murder. “There was another case too,” he said. As he recalls, it was “maybe an Indian fellow who got murdered, maybe a television or an air conditioner smashed over his head.” And in fact Shailesh Patel had been beaten and murdered seven months before the killings at Bennett’s grocery. “I heard that very quickly too,” Moore said. “That’s what people were saying about Hercules, that he had committed … those two murders prior to the Bennett murder.”

Moore’s familiarity with Patel’s murder stood in sharp contrast to much of Adel today. Although most longtime residents recall the era between the murder at Taco Bell and the killings of Bennett and Browning as a terrifying time, many people have only a faint memory of Patel’s death — if they have any at all.

There was little Moore could do to probe the Patel case, which remained open. But since it was closed, documents relating to the murder of Donna Brown should be public record. “I started aggressively investigating the Taco Bell case,” he said. He didn’t get far. Not long after he’d sent an open records request seeking the GBI’s investigative file, Moore’s inquiry was shut down — by the lawyer appointed alongside him to defend Mason.

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A police sketch of Wesley Mason.

Image: GBI

The lawyer, Clark Landrum, was not a defense attorney but a full-time prosecutor from a neighboring judicial district. That a prosecutor would be tapped to lead a capital defense team may be startling, but Moore says this was par for the course in South Georgia. “I grew up in Georgia, but I’m an outsider when you go down to Cook County,” he explains. “This is not a place where the judicial system runs in any kind of recognizable way to most lawyers.”

According to Moore, Landrum wrote him a formal letter demanding that he stop his investigation. “It turned into a huge conflict between us because I basically said, ‘I’m not willing to do that. I don’t really care what you’re saying, I’m going to go ahead and investigate this because my allegiance is to my client.’” Stunned and disturbed by Landrum’s behavior, Moore turned to the judge in the case to ask that Landrum be removed. “That turned into a big ugly brawl too,” he said.

As Moore prepared to meet the judge, accompanied by Mason and his mother, he recalls seeing Landrum leaving the office of Bob Ellis, the same prosecutor who convicted Devonia Inman for the murder at Taco Bell — and who would now prosecute Mason. Inside chambers, noting that there was “a difference of opinion” between the two lawyers assigned to Mason’s case, the judge chose to remove Moore instead of Landrum.

That is not what Mason wanted, Moore said. “The family had no faith in Clark Landrum at all and didn’t want him representing Wesley.” Moore stood firm: He and another lawyer from Atlanta would be taking the case pro bono, and that was final. The judge retorted that they’d better not ask for any money for their defense, because he wouldn’t give them a dime.

Over email, Landrum described the incident differently. Moore was “difficult to supervise,” he claimed, and would interview witnesses and then refuse to share any information with him. But he denied trying to stop Moore from looking into the Taco Bell case. “That is ridiculous,” he wrote.

Moore prevailed in taking over the case — but his investigation into Hercules’ involvement in the Taco Bell murder quickly came to an end when Mason was offered a deal for life in prison. He took it. The message was clear: Between the GBI and the prosecutors in Cook County, nobody wanted Moore to revisit the murder of Donna Brown. “As you have seen, I’m sure, in looking into this again,” he says, “a lot of doors close in your face.”

The parking lot of an old Pizza Hut in Adel, GA. On the night of the Taco Bell murder, Virginia Tatem alleges that she saw Devonia park the car in the lot after the murder at the Taco Bell across the highway.

The parking lot of the old Pizza Hut in Adel, Ga.

Photo: Ryan Christopher Jones for The Intercept

DNA Test Results

Devonia Inman was just beginning his life sentence in 2002 when he wrote a letter to the fledgling Georgia Innocence Project, pleading for help. “We started looking at his case very early on and have stayed with his case,” said Aimee Maxwell, the group’s founding executive director. To Maxwell, who has since left the GIP, the case immediately stood out for all the wrong reasons — the lack of any physical evidence tying Inman to the crime and the confounding stories offered by a parade of witnesses who either recanted or had something to gain from testifying against him. “It was very telling who the witnesses were,” she said. “You can’t figure out when they’re telling the truth. Do you really want [them] to put a man in prison for life without parole? That’s the shocking thing — and it could have possibly been death.”

Maxwell began a hunt for evidence that could be tested for DNA. Tape lifts with fingerprints recovered from Donna Brown’s car that might have contained skin cells suitable for testing had disappeared, she said. But one key piece of evidence still existed: the makeshift mask recovered from her car. In March 2011, Maxwell got the go-ahead to have it tested.

Just two months later, DNA testing linked the mask to a single source: Hercules Brown.

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A crime scene photo of the inside of Donna Brown’s car. On the passenger seat is a makeshift ski mask cut from a section of sweatpants.

Photo: GBI

The revelation all but confirmed what many in Adel had long suspected: The real killer in the Taco Bell murder was Hercules — and the state had imprisoned the wrong man. To Maxwell, it was clearly grounds for Inman to receive a new trial.

As the GIP lawyers in Atlanta geared up to make the case to Judge L.A. McConnell — the same judge who presided over Inman’s original trial — down in Cook County, few had heard about the DNA. No story ran in the Adel News Tribune. Nonetheless, one man who had been a key player in Inman’s conviction had received the news: Tim Eidson, the assistant district attorney who helped send Inman to prison for life.

Eidson was no longer a prosecutor by this time. He had moved on to head the public defender’s office in neighboring Cordele, later becoming a sort of roving defense attorney, based in Alabama and representing clients all over South Georgia. In an office in Douglas, Georgia, in the fall of 2016, Eidson recalled hearing about the DNA. “Now I know that my ex-wife called me one day,” he said. “She was kind of in a tizzy because they had got a call from someone and she says, ‘Do you remember that mask you found?’ I said yeah. ‘Well they found that it had Hercules Brown’s DNA in it … and they’re saying that he might have been involved in the Taco Bell murder.’”

There was good reason for Eidson’s ex-wife to have heard the news before him: Hercules had killed her uncle. In a typical small-town connection, Eidson had once been married to William Carroll Bennett’s niece. They had recently divorced when Eidson got the phone call in 2000 that Bennett had been beaten to death. “I was like, ‘Lord have mercy,’ because I knew him. … I knew his entire family.”

Like Gail Bennett, who believes that Hercules should have been arrested for the murder of Donna Brown at Taco Bell, other members of the Bennett family were upset by the implications of the DNA. Yet Eidson maintains that, although “we had our suspicions at the time,” there was never enough evidence to indict Hercules. Lucinda Brown had provided an alibi for her son, after all, and she was well-respected in the community. Besides, Eidson said, the DNA evidence merely linked Hercules to the crime. It did not mean Inman was innocent. If the state had known there was DNA on the mask matching Hercules, Eidson said, “his name would have been there along with Devonia Inman.”

Yet Eidson and Ellis had convicted Inman by arguing that he alone had committed the crime. The DNA was compelling evidence that they had gotten it wrong — and that Inman deserved a new trial.

The Taco Bell in Adel, GA. Devonia Inman was convicted of a murder that happened in the parking lot of this Taco Bell in 1998.

The Taco Bell in Adel, Ga., reflected in a nearby window.

Photo: Ryan Christopher Jones for The Intercept

The State Changes Its Story

In January 2014, Maxwell traveled to Adel for an evidentiary hearing before Judge McConnell. She felt confident.

After the DNA results from the mask came back, GBI agent Jamy Steinberg, who with Adel Police Department detective Jimmy Hill led the investigation into the murder at Taco Bell, had gone to see Hercules in prison. In a recorded interview in June 2011, Hercules denied any involvement in Donna Brown’s murder and ever wearing the mask containing his DNA. He also denied knowing Inman. “Steinberg explained to Brown that the only profile shown in the mask was his and that DNA was very specific and if somebody else tried it on, it would show their profile as well,” Steinberg wrote in his report, adding that Hercules said “he did not remember anything about it; it had been a long time.”

Maxwell was thrilled with the interview. “It was this genius interrogation because they gave [Hercules] all the outs; he took none of them,” she said. “They backed him into a corner and he has no place to go. He can’t come back now and explain, ‘Oh, well, yeah, you know we were best friends and we were hanging out that night and, oh yeah, I had this makeshift mask that I was using, but I loaned it to him.’ He can’t do any of that now.”

At trial, Inman’s attorneys had sought to admit evidence showing that, during their investigation into Donna Brown’s murder, police had been repeatedly told that Hercules was responsible for the crime. But prosecutors balked, insisting that the allegations were unreliable and should be excluded. McConnell had agreed, ruling that absent any solid link between Hercules and the crime, speculation about his involvement would be kept from the jury. Now, standing in the Cook County courthouse, Maxwell argued that the DNA was precisely that link. “That’s the witness that tells us the truth. That’s the one piece of evidence that tells us who was actually there.”

In response, the state did an about-face. “The evidence was never that Mr. Inman acted alone,” prosecutor Jess Hornsby argued, completely contradicting the state’s theory at trial. The DNA did “nothing to exonerate Mr. Inman,” he said. “All that does is possibly implicate another person that may have been involved.”

In all, the hearing did not go particularly well. The transcripts suggest that Maxwell’s argument was scattered and rushed, and the state fought at every turn to keep additional witnesses off the stand. They included Kwame Spaulding, the jailhouse informant who previously testified that Inman had confessed to him while the two were locked up together. Now, Spaulding said he had been coerced into making this claim, through promises that the GBI would get him released. “I mean, he was telling me he’ll let me go home and he was telling me stuff to say about the man,” Spaulding said, presumably referring to Steinberg, who had taken his statement back in 1999.

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Kwame Spaulding’s note to jailers claiming he had information for the GBI about Donna Brown’s murder.

Image: GBI

Maxwell also sought to call Virginia Tatem, the witness who at trial had been so adamant that she had seen Inman driving Brown’s car the night of her murder (and whose claims about what she had seen were far-fetched at best). Maxwell wanted to ask Tatem whether she had ever received the $5,000 offered by Taco Bell for information. Tatum refused to answer any questions.

Finally, there was Hercules Brown. Not surprisingly, he invoked his Fifth Amendment right against self-incrimination.

Steinberg’s testimony was terse. Maxwell wanted to know if he’d done any further investigation after learning that Hercules’s DNA was found on the mask.

“There’s been no additional investigative acts after that,” he replied.

“Did you compare the latent fingerprints [from the crime scene] which did not match my client to Mr. Brown?” she followed up.

“I just answered that question,” Steinberg said.

Steinberg has been similarly testy toward others who have questioned his work. In the wake of the murders of Bennett and Browning, Gail Bennett wrote a letter to the editor of the Adel News Tribune, complaining that she had been unable to get any answers from the GBI about its hunt for Hercules’s accomplice. Steinberg met with the family soon afterward. “He was very ugly,” Gail said. “He looked at me and said, ‘I don’t have to tell you anything.’”

If Judge McConnell was more interested in the implications of the DNA evidence than Steinberg appeared to be, he did not seem motivated to do much about it. While his decision to hold the hearing in the first place was an important step — plenty of trial judges deny such hearings when it comes to questionable convictions won in their courtrooms — it would not matter in the end. McConnell sided with the state and denied Inman a new trial — and he asked the DA to pen his ruling for him.

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A makeshift mask can be seen inside Donna Brown’s car in the abandoned Pizza Hut parking lot.

Photo: GBI

The eight-page ruling endorses the state’s revisionist history — adopting prosecutors’ new theory of the crime — and faulted the GIP for not offering additional evidence linking Hercules to the crime, the very evidence that McConnell had barred from Inman’s original trial. “At the hearing, Defendant presented no evidence that would implicate Hercules Brown as the killer other than the DNA on the ski mask,” it reads. The ruling acknowledged that “the DNA on the ski mask is not irrelevant,” but concluded that it was not significant enough to “produce a different verdict” if Inman was granted a new trial.

In its appeal to the Georgia Supreme Court, the GIP argued that the shifting theory of the crime was improper. The law does not allow the state to charge a person with one crime and then argue at trial or on appeal that he is responsible for an entirely different crime — a legal disconnect known as a fatal variance. The state had charged Inman as solely responsible for the robbery and murder of Donna Brown, but with Hercules’s DNA found on the ski mask they now argued that there were multiple people involved in the crime. That convenient shift essentially denied Inman the right to effectively defend himself.

But like McConnell, the Georgia Supreme Court shrugged off the argument. On December 19, 2014, it rejected Inman’s appeal. Maxwell was bewildered and devastated. “I pretty much think about this case almost every day, and I can’t figure out how I lost it,” she said. “I can’t believe that this young man … is in prison for the rest of his life based on a bunch of liars.”

Down in Adel, people were mostly unaffected by the ruling. News of the DNA match to Hercules didn’t even make the local paper until after The Intercept began its investigation into the case in 2015. To Charles Shiver, longtime reporter and editor of the News Tribune, the discovery of Hercules’s DNA on the mask had been “kind of disturbing to me,” but he deferred to the conclusions of the court. “I mean, I can’t second-guess the judge,” he said.

Jess Cino, associate dean at the Georgia State University College of Law, has taken up his Devonia Inman's cause for innocence.

Jessica Cino, associate dean at the Georgia State University College of Law.

Photo: Ryan Christopher Jones for The Intercept

A Clear Miscarriage of Justice

It wasn’t long after Maxwell’s loss before the Georgia Supreme Court that Jessica Cino stopped by her office to discuss a case.

Cino, now 40 and an assistant dean at the Georgia State University College of Law, grew up in a poor family in rural Kansas. She didn’t know anything about the criminal justice system or its failures until she went to college, when she took a class on the death penalty that changed the course of her life. “I was profoundly disturbed for the entire semester,” she recalls. It “opened my eyes to this hidden system of justice that I had no idea even existed.” Where she once hoped to become an actor, she instead applied to law school, winning a scholarship to the University of Miami based in part on her determination to open an innocence project at the school, which she did. After graduation she went to work at a silk-stocking firm in San Francisco, where she spent much of her time working on capital cases that the firm took on pro bono and developing an expertise in forensics and DNA evidence.

It was one of those pro bono cases that woke her up to the real-world injustices of the system. Her firm had taken on the case of a black man named Cory Maye who faced execution after being wrongfully convicted for shooting a white police officer in Mississippi. During a hearing in the case, Cino remembers seeing for the first time a dramatic representation of a racial divide in the justice system. The courthouse in Hattiesburg was an old-fashioned, two-tiered courtroom, complete with a gallery where black attendees were once forced to sit before integration. But that day, the courtroom was segregated anyway. When she walked in, she said, “all of the people who supported the officer and his family and the prosecutor were all white; they were all on one side of the courtroom. And then, Cory’s supporters were mostly African-Americans, so they were on the other side.”

Later, when Cino was offered a job at GSU, she jumped at the opportunity. She knew how badly the South needed skilled death penalty lawyers. After arriving in Atlanta in 2009, she quickly developed a relationship with the GIP.

On the day Cino stopped by to chat with Maxwell, she had a different case on her mind. But Maxwell had just lost Inman’s appeal. “She started telling me about the case. It sounded horrendous,” she said. Maxwell told her about the court rulings and the DNA evidence that pointed to a clear miscarriage of justice. That the Georgia Supreme Court had basically turned its back meant that Inman was out of meaningful options to challenge his conviction. “I think even my own notions of how the criminal justice system worked and how pivotal DNA evidence is in cases was tested,” she said. It wasn’t like anyone was asking the state to just set Inman free, Cino thought, only that he deserved a new trial, based on the DNA. After all, if jurors had known about it in 2001, it is hard to imagine that they would have convicted him.

Maxwell sent Cino a copy of the trial transcript. She devoured it. “I would just keep turning the page and say, ‘You’ve got to be kidding me. How did this guy get convicted?’” she recalls. The miscarriage of justice was so clear, she knew she had to do something. If she didn’t, she remembers thinking, it would alter the way she thought of herself as a lawyer. “This is a case that cries out for people to look at and to re-examine, and I wouldn’t be able to just walk away from it.”

That July, Cino and a research assistant packed into her silver convertible Mini Cooper and headed out from Atlanta, driving more than three hours southeast to meet Inman in the Georgia State Prison in Reidsville. She wanted to get a read on him. “I’ve met a lot of guys behind bars over the years. Some of them are totally trying to bullshit me, some of them are brutally honest and candid about their history,” she said. “So I wanted to go and just size him up and see what he had to say about the case, but also, how sincere was he?”

USA, GA, Nov. 2012. Georgia State Prison. This medium security prison near Reidsville was opened in 1937. It houses 1,500 inmates.

The Georgia State Prison, photographed in November 2012.

Photo: Jan Banning/Panos via Redux

At the prison, she spent an hour talking with Inman. She would return four more times over the next few months. He was clearly “seriously depressed” and living under horrible circumstances. And she believed him when he said he did not kill Donna Brown. “When he started talking about the case, it rang true.” He told her about his run-ins with the law in California and about his rocky relationships with women, and how he’d gotten into an argument with his girlfriend, Christy Lima, on the night of the murder. “So he was forthcoming with all of that, but he was adamant … that he did not kill Donna Brown and that he had never killed anybody.”

He also expressed remorse about not taking more seriously the state’s case against him. “He was just so sure that a jury wouldn’t convict him,” she said. “That’s sort of where, I think even emotionally, his development stopped. He very much just relives the two to three weeks surrounding the Taco Bell crime every single day of his life, and that’s what he focuses on.”

Talking to Inman is not easy. More often than not his voice is flat and he is despairing about his circumstances. He doesn’t understand why no one believes him, particularly since the DNA evidence points to Hercules Brown, a man Inman insists he did not know, except by reputation. Without any good answers, Inman lives in a perpetual melancholic loop, reliving often minute details about what was going on in the weeks and hours before the Taco Bell murder and punishing himself with a string of what-ifs.

He returns to the same set of memories over and over: how Marquetta Thomas, Lima’s sister, was not at home most of that evening; how a car had arrived at the house late that night, shining its bright lights through the windows, possibly dropping someone off. And he remembers playing outside in the dirt with his young son earlier that afternoon and how his son pleaded with him not to leave. “I kind of feel bad when I think about it now because it’s like he was really trying to tell me something that he seen, I guess. It was like, I’m gonna go away for a long time,” he recalled. “If you look at the way he was crying, because he was really crying, he was holding my shirt and wouldn’t let go.”

Inman has not seen his son in more than 20 years. And there is a good chance that he might never see him again — not free in the world, at least — unless Cino can find a way to convince the courts that Inman is innocent. She is determined to do so and since 2015, has spent hundreds of hours working on his case.

An old photo of Devonia Inman in the 1990's before going away to prison for life.

A photo of Devonia Inman in the 1990’s.

Photo: Ryan Christopher Jones for The Intercept

A Rigged System

At the heart of Inman’s predicament is a problem that many Americans do not understand. For all of the rights offered to people accused of crimes, there is no right that explicitly protects a person against a wrongful conviction. The Constitution is mostly silent on this point, concerned instead with whether a defendant received a fair trial. Did you have minimally competent lawyers? Were you able to cross-examine the state’s witnesses? Barring any violations of due process, the system is satisfied — even if the wrong person is convicted.

“I think one of the biggest myths about the criminal justice system and the way it functions is that most of the time we get it right, but in the slim chance we get it wrong, we’ll be able to correct it down the road,” says Cino. “That’s just not true. That’s not true on any level.” In many ways it is a rigged system. “Once you’re convicted, it’s meant to keep you there. It is not meant to re-examine your case, no matter the circumstances” — say, if a victim or witness recants, or if a jailhouse snitch was proven to be unreliable. “The system is designed to keep you wherever they put you once they convict you,” she says. “That’s why there’s that presumption of innocence before you get convicted, but once you’re convicted, it’s a presumption of guilty, and that is almost impossible to undo.”

The rise of DNA evidence has helped some — but has also lulled people into a belief that it is able to rectify all wrongs. DNA is only available in a fraction of cases. In many, it has proven critical in correcting miscarriages of justice — for example, in rape cases in which a person has misidentified their attacker. But as Inman learned the hard way, even when DNA is available, it is only as good as the people considering it. Often, the state fights against testing DNA, then denies its significance when it is matched to another person. And, like McConnell, many judges will decline to grant a new trial, even when forensic evidence points to a wrongful conviction.

This harsh reality has left Inman with little legal recourse. His best shot is a true Hail Mary pass: a writ of habeas corpus based on actual innocence — what amounts to a legal unicorn. But in order to create the best odds, Cino would have to find a constitutional violation in the case — that Inman’s previous lawyers were deficient, for example, or that prosecutors failed to turn over important evidence — to serve as the basis for the appeal. “It’s a shot in the dark,” she says. But she is determined to try and has wrangled a pro bono legal team from one of Atlanta’s prestige firms, Troutman Sanders, to help her.

Cino constantly worries about the case and wonders if she’ll actually be able to help Inman. “Because whenever I talk to him on the phone…he always asks me, ‘What are the chances of me getting out? Do I have a good chance?’ He wants to be optimistic,” she says. “The lawyer in me knows the reality of what he faces.” So she’s caught, trying to “manage his expectations without crushing his last hope.” She wakes up in the middle of the night, sweating, worrying about Inman’s case, as well as Inman himself. “I don’t know what it’s like for him day to day in prison, let alone day to day in prison where you’re an innocent man,” she says. “I can’t imagine that. Then, to have your one chance [at freedom] be so slight, I feel horrible as…a human being that this is how bad this system is.”

But there is one thing that could help Inman’s case almost immediately, Cino says: “You would need Hercules Brown to come forward and admit to the crime and also say that Devonia didn’t have a role in it.”

In the three years since we began working on this story, we have written numerous letters to Hercules in prison. He has responded just once, in July 2016. He did not explicitly deny committing the murder of Donna Brown, but wrote, “I don’t have any thing to say about Devonia Inman nor his conviction or any thing pertaining to his case.” If Hercules continues to stay silent, it seems likely that the truth behind the Adel murders will remain untold.

On a Sunday afternoon in 2017 we finally got in touch with Hercules’s mother, Lucinda Brown. We had hoped to ask her about the alibi she had provided for Hercules, and how she felt about the many rumors about her son. Over the phone, we asked her if she could help us sort out the truth of the matter. Not surprisingly, she refused. “You’ll never know what’s true and what’s not,” she said. “So I don’t have anything to give you.”

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The post Revisiting the Taco Bell Killing appeared first on The Intercept.

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December 13, 2018

A Small Town Rocked by a Series of Violent Murders

It was just after 11 a.m. on Friday, November 10, 2000, and Norfolk Southern Railroad engineer Lloyd Crumley and his brakeman Corbit Belflower were securing their train before jumping off to grab lunch at a small store abutting the tracks on the south side of Adel, Georgia.

Crumley, Bellflower, and another colleague, conductor Wayne Peters, often dropped into Bennett’s Cash and Carry for lunch when working in town. The owner, William Carroll Bennett, was a legend in the community where his family went back generations. He was known for his generosity and would often extend credit to families who needed groceries but couldn’t afford to pay for them. “He was a saint,” said former Adel police Officer Tim Balch.

Peters hopped off the train and headed to the store ahead of Crumley and Belflower, who followed not far behind. In his nearly 40 years working for the railroad Crumley had seen beauty — pristine landscapes stretching out for miles; a river flowing past as his train moved across a truss high above. He’d also seen tragedy; he’d lost count of the number of people who had perished on the tracks when his train was too close to stop. That did not prepare him for what he saw that day inside Bennett’s grocery.

As he and Belflower approached the store, a man exited, holding a bat of some kind that appeared to be stained with paint. As the two men reached the store’s front door, a second man, carrying a cash register, burst through to the outside. Crumley asked what he was doing. The man threw the cash register at them. Crumley fell backward, but Belflower avoided the blow and raced toward the man as he hopped into the driver’s seat of an older blue Cadillac. Crumley scrambled to his feet and as the car raced away, the two men called out the license plate number, which Crumley scribbled onto his hand with a pen he always kept in his shirt pocket.

Just inside the store’s front door, Crumley and Belflower found their colleague, Peters. He’d been hit in the head and part of his scalp was peeled back. He was alive. Further inside, the men realized that Bennett and his employee, Rebecca Browning, had been bludgeoned to death. Although Peters would recover from his injuries, he would have no recollection of what happened that day — of who hit him and with what.

The brazen lunchtime murder of two beloved community members stunned a small town still reeling from the brutal murder of Shailesh Patel just seven months earlier. Despite a grisly crime scene filled with physical evidence, no arrests had been made. The crime remains unsolved to this day. But this time, the cops got a break. Crumley and Belflower’s quick action to copy down the plate number of the blue Cadillac produced almost immediate results: Less than an hour later, Hercules Brown was arrested while driving the car.

 

Hercules’s ankles were shackled that afternoon when he was brought in for an interview with Georgia Bureau of Investigation agent Jamy Steinberg, the same man who had led the investigation into the September 1998 murder of Donna Brown outside the Adel Taco Bell. Steinberg had been given information back then that strongly implicated Hercules as being responsible for Donna Brown’s death, but judging from the police report he never followed the lead. Instead, Steinberg focused his attention on a 20-year-old from out of town, Devonia Inman, who the state said had acted alone in ambushing Donna Brown in the Taco Bell parking lot, robbing her of the evening’s receipts before shooting her in the face. Inman insisted that he was not involved in the crime — he was at his girlfriend Christy Lima’s home at the time — but was nonetheless arrested and charged with the murder. The day that Bennett and Browning were beaten to death Inman was still in jail awaiting trial.

Under questioning, Hercules denied that Hercules was even his name, so Steinberg called in Adel police investigator Jimmy Hill. The town’s veteran and only detective, Hill had worked with Steinberg on the Donna Brown case. Hill positively identified Hercules. The 20-year-old relented; yes, that was his name — but he didn’t know anything about any crime at Bennett’s grocery. Hercules was booked into jail.

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Hercules Brown.

Photo: Georgia Department of Corrections

What Happened to Hercules

In Greek mythology, Hercules is the half-mortal son of Zeus. The goddess Hera was furious that Zeus had cheated on her and was vengeful toward Hercules. She sent two snakes into his crib to kill him, but it didn’t work; the powerful infant crushed them both. Indeed, Hercules became known not only for his strength, but also for his temper. He wore a lion skin with the head still attached that came up over his forehead like a mask, and he carried a large club, his favorite weapon.

In Adel, the life of Hercules Brown has become something of a legend. Everybody remembers him, giving some version of a similar tale: a formidable young man from a good family who took a bad turn.

Hercules was funny and did well in school, and he excelled in both football and baseball. He was such a large and muscular child that he needed a special-ordered uniform; he could easily have used his strength to dominate on the field, but he didn’t. He wouldn’t hurt a fly, recalled his youth sports coach. Hercules stopped playing sports in high school and instead joined the band, playing trombone and baritone. In a 1997 quiz for band members titled “Getting to Know You,” Hercules wrote that his favorite piece of music was “Mozart” and that his greatest extravagance was his hair. He kept a Bible at his bedside, would like to visit Australia, and should play himself in the movies, he wrote. He described himself as “carefree.” Hercules also worked at the Taco Bell in Adel, often as a closer.

If Hercules was as carefree as he claimed, at some point things changed. Why is not entirely clear, though many who knew him as a teenager blame drug use for his change in temperament. Tim Balch, the former Adel police officer, said that in those days Hercules was trying to build “street cred.” He had heard that Hercules was selling drugs out of the Taco Bell drive-thru, although police never proved it. Tim Eidson, assistant district attorney of the Alapaha Judicial Circuit, said that Hercules was obviously high on something when he was arrested for the Bennett and Browning murders, though Hercules denied it.

Others say that Hercules was simply a “thug.” He threatened his girlfriend and was known for trying to rob people or burglarize houses and cars, according to Lima, Inman’s girlfriend in the summer of 1998. “This boy had a violent streak in him, and everybody in Adel knew that,” she said. “Everybody was scared of him.” Many people were also scared of his mother, Lucinda, who worked at the state Division of Family and Children Services, which had the power to take people’s children away. Lucinda had “pull,” Lima said — the kind of pull that kept people from saying anything bad about her son, regardless of the circumstances. If the extent of her power was less real than perceived, numerous people nevertheless recall Adel residents being wary of coming forward when Hercules acted out, afraid that Lucinda Brown would take away custody of their children or cut off access to benefits like food stamps.

Balch had a similar impression. “His mother was always very, very, very overprotective,” he said. Whenever her son had a run-in with the Adel police, Lucinda did not hesitate to come to the station to complain. Officers would hold their tongues in response. They knew they had to rely on her cooperation in child abuse cases, and they did not wish to ruffle her feathers. “I don’t know a good way to put this without being ugly,” Balch said, “but you don’t want to do something to mess the relationship up.”

Still others, like Balch’s then boss, former Chief Kirk Gordon, and prosecutor Eidson recall Lucinda and her family as kind, respected members of the community. “Just super good people, just as nice as they could be,” said Gordon.

Indeed, in a rather jaw-dropping revelation, Eidson said that it was actually Lucinda who provided an alibi for her son on the evening Donna Brown was killed. According to Lucinda, Eidson recalled, Hercules was either at home asleep or possibly returning from a school trip at the time of the murder. “In any event, she gave an alibi for Hercules,” he said. Despite the obvious conflict of interest, officials apparently accepted her explanation at face value. Sure, there was “innuendo” that Hercules might have been involved in the crime, Eidson recalled, but there was nothing that would outweigh Lucinda’s assurances. “There wasn’t any reason to disbelieve her at the time,” he said. “She was a well-respected citizen.”

The Taco Bell in Adel, GA. Devonia Inman was convicted of a murder that happened in the parking lot of this Taco Bell in 1998.

The Taco Bell in Adel, Ga., photographed in July 2017.

Photo: Ryan Christopher Jones for The Intercept

A Witness Recants

On a winter day in early 2001 — less than three months after the brutal murders of Bennett and Browning — defense attorney Melinda Ryals received a letter at the public defender’s headquarters in neighboring Tifton, Georgia. For months she had been working on one of the most significant cases of her career, defending Devonia Inman, who faced the death penalty for the murder of Donna Brown — the first death penalty trial in Cook County in a generation. The letter that arrived at Ryals’s office that day was dated January 30. To her surprise, it came from LarRisha Chapman, who was poised to take the stand as one of the state’s key witnesses against Inman.

Chapman, then 16, worked the closing shift at Taco Bell the night Brown was murdered and was one of the last people to see her alive. She initially told investigators that she’d seen nothing “unusual or suspicious” outside the restaurant that night, but eventually changed her story, claiming that while waiting for her ride, she actually heard Devonia Inman’s voice coming from some weeds near the parking lot curb line, a detail that neatly fit the cops’ theory that someone had been lying in wait to attack Brown.

Ryals had recently gone to see Chapman, who expressed gratitude for the visit in her letter. “I’m so glad that you came to speak with me on this situation,” Chapman wrote. She was writing to Ryals now so that she could “clear up the huge lie I told years ago.”

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The tamped-down grass where Chapman alleged that Inman was waiting, outside the Taco Bell.

Photo: GBI

“I, LarRisha Nicole Chapman, admit that I lied on the statement I wrote about I could recognize the voice of a Mr. Inman,” she wrote. “I don’t even know what his voice sounds like. I’ve never even heard his voice before. I didn’t see anyone in the bushes either.” Investigators had relentlessly harassed her, Chapman explained. “I was sick of it and so I lied to stop them from bothering me and I thought it was over. I only made it worse by lying. I’ve got to get the truth out because I haven’t been able to sleep good since I said this.”

Chapman wrote that she wanted to replace her previous statements with this confession, which she insisted was the truth. She did not want to take the stand and lie. “I was young and I didn’t know how to handle this kind of thing. But now I’m sorry that I lied. Please can you help me to get off the stand and try to straighten this huge lie that I told?”

Ryals shared the letter with prosecutors.

Chapman was not the only one who tried to recant what she said about the crime at Taco Bell. According to Marquetta Thomas, the first person to implicate Inman, she herself had twice tried to tell authorities that she wanted to change her statement, including after she’d been subpoenaed to appear as a state witness against Inman. “They kept getting smart with me, telling me they was going to hold me in contempt of court. I was like, ‘He didn’t do it, yo.’ They never paid any attention.”

If the state’s theory of the crime seemed to be falling apart in the months before the trial, prosecutors did not seem troubled. Nor did they seem concerned with the possibility that Hercules, who had long been rumored to be truly responsible for the murder of Donna Brown and now sat in a local jail cell accused of brutally killing Bennett and Browning, might have been responsible for Donna Brown’s death too. All the while, the horrific murder of Shailesh Patel had yet to be solved. If any of these factors should have given prosecutors pause, perhaps to reconsider their case against Inman, they instead were ignored. The capital trial continued to move forward.

A photo of Devonia Inman and Christy at the home of Dave and Dinah Ray in Sacramento, CA.

A photo of Devonia Inman and Christy Lima at the home of Dave and Dinah Ray in Sacramento, Calif.

Photo: Ryan Christopher Jones for The Intercept

The Trial

The trial of Devonia Inman began on June 19, 2001, at the Cook County Courthouse in downtown Adel. Representing the state was Robert “Bob” Ellis, the judicial circuit’s elected district attorney. In his 40s, with a conservative side-part and moustache, Ellis had the politician’s skill of projecting folksy humility while harboring ruthless tactics. “The Southern gentleman is how he presented himself,” says Earline Goodman, who worked on Inman’s defense team, attending the trial from start to finish. Ellis’s image would later be tarnished after he was exposed, over the course of a federal corruption probe, of sexual misconduct with a confidential drug informant. The informant accused him of rape, but Ellis insisted that his acts were consensual. He eventually pleaded guilty to lying to the FBI, and was sentenced to 18 months in prison. Today, Ellis is a boat salesman and part-time Baptist preacher. In a 2015 interview, he defended his prosecution of Inman, while insisting that remembered very little about the case. “I can only tell you at the time, that we felt strongly that he was guilty, or we wouldn’t have gone forward,” he says.

Ellis was accompanied by Eidson, the assistant DA, an affable, slightly younger attorney who would go on to head the public defender’s office in nearby Cordele, Georgia. He, too, ran afoul of the law after Inman’s trial; in 2007, Eidson was indicted on federal corruption charges after allegedly interfering in a drug case involving his wife. He was acquitted, but was later sued in a class-action brought by the Southern Center for Human Rights and the firm Arnold & Porter, which charged him and others in his office with shockingly inadequate defense work on behalf of indigent clients. (The case was settled in 2015.) Eidson also defends Inman’s conviction, although he says he believed at the time that he had not acted alone, which contradicts the theory that he and Ellis presented to the jury. “If the courts give Devonia Inman a new trial you’re not going to see me arguing about it in the papers or getting mad about it,” Eidson said. Still, he insists, “from the evidence that was presented during that time … I just believe Devonia was involved with it.”

Leading Inman’s defense was David Perry, who has since died, along with Ryals, his co-chair. According to Goodman, it was Ryals who first took the case, aggressively gathering evidence the police had ignored. The two were a close team, Goodman says, with a shared sense of adventure — a local judge used to joke that they were like Thelma and Louise. “Melinda and I, we went to so many people’s houses. We learned street names. Every lead we got, we’d go to,” Goodman said. But Ryals, who now works at the Georgia Capital Defender’s Office, felt daunted by the challenge of a capital trial, Goodman says. She asked Perry to join her — and he ended up taking over the trial strategy. “David was first chair. We had to go along with what David said,” Goodman said, with obvious frustration. In her opinion, Ryals could have won the case herself.

Indeed, among the leads Goodman and Ryals had pursued was that Hercules was actually responsible for the murder of Donna Brown. They’d heard persistent talk about this around town. Ryals tried to get into evidence testimony from a number of people who pointed to Hercules as the real culprit but was rebuffed — both by Perry, who seemed disinterested in an alternate-suspect defense, and Judge L.A. McConnell who refused to allow jurors to hear any of it. None of the evidence implicating Hercules was reliable, he concluded.

Goodman is 61, with white hair, a warm smile and a slightly self-deprecating air. She was eager to talk about the case — and firm in her belief that what happened to Inman was a miscarriage of justice. “My first impression of Devonia [was] that he was a punk, but he wasn’t no killer,” she said. Like others, she described him as having a big mouth but little to back it up. “He was the pretty boy. He wore the nice shoes, the up-to-date clothes. A lot of those people from Adel are below poverty, so I think they were jealous of Devonia.” He was also spoiled. It was Goodman’s job to “babysit” him throughout the trial. “He’d be telling me he wanted a cigarette or he wanted to see his mama. I’d have to go over [to the jail] and be real nice and get them to let his mama come in there to see him and things like that. I just don’t think Devonia had guts enough to pull the trigger.”

Inman’s weeklong trial was lengthy by Cook County standards. “South Georgia, baby, you going to be tried in just a few days,” Goodman said. Even as he faced a possible death sentence, she remembers him being calm — perhaps even overconfident. “I don’t really think that Devonia really understood what he was up against,” she said. He seemed to think, “Well I didn’t do it, so they can’t do nothing to me.”

There were certainly reasons to doubt that the state would win a conviction. In his opening statement, Eidson conceded “there was really no physical evidence in this case.” No gun or money was ever found. Fingerprints taken from the scene did not match Inman. But Eidson spun these glaring holes in the case as proof that Inman was a mastermind who had left no traces behind. “Whoever had thought this out had planned it quite well,” he said.

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A photo of the crime scene, marking where Donna Brown’s body had been found.

Photo: GBI

With no hard evidence, Ellis and Eidson relied on an array of witnesses whose testimony was contradictory, confusing, and at times completely counter to the prosecutors’ theory of the crime. Several did little more than paint Inman in a vaguely criminal light, rather than offer proof that he had actually committed the murder of Donna Brown. Among the first was Zachary Payne, the man who first tipped the GBI to the fact that Inman had access to a gun — although not the same type of gun used to murder Brown. Payne was brought from a drug detox facility in order to testify and he told a disjointed tale about Inman showing up at his door and pointing a gun at him. It was not clear what had prompted the alleged confrontation or what connection it had to the murder two weeks later.

If Payne’s testimony was more prejudicial than probative, other witnesses were wildly improper, at least by prevailing legal standards. Under the justification of presenting “similar transactions” to the crime in question, the state called a slew of Sacramento police officers to describe Inman’s previous run-ins with the law in California. Most dated back to when he was a juvenile — and none rose to the level of violence in the killing of Donna Brown. There was a car theft when he was 18, the robbery of a pizza delivery person when he was 15, and a traffic stop in which drugs were found. The third incident prompted a call for a mistrial by Perry, which was denied. McConnell would later instruct the jury to disregard the testimony of a police sergeant who described the drug incident, but by then, jurors had heard plenty about Inman’s checkered past. In a significant leap, the state cast Inman as intrinsically criminal, a man whose previous record showed that he was as a natural-born killer. “It’s a logical progression of a propensity to commit crimes,” Ellis said in his closing statement during the sentencing phase, urging jurors to hand down the death penalty. He compared Inman to a leopard hunting its prey. “He won’t change his spots.”

The witnesses from California would likely not have made it to the stand had the trial taken place today. In 2011, Georgia legislators finally overhauled the state’s ambiguous and antiquated rules of evidence, imposing desperately needed guidelines on trial lawyers and judges for what qualified as admissible testimony. For decades prior, Georgia had been the only jurisdiction in the country where prosecutors could admit evidence of previous crimes to show “bent of mind” or “course of conduct” — language that the state supreme court itself had described as “difficult to define and slippery in application.” In the hands of the wrong prosecutor, such evidence could prejudice a jury completely against a defendant, making it more likely to convict, no matter how weak the evidence.

Eidson was one such prosecutor. “He was the king of similar transactions,” Goodman recalls. “But I never understood how that little penny ante stuff in California was a similar transaction to [the Taco Bell murder].” The phrases “bent of mind” and “course of conduct” appear again and again in the trial transcript, which also captures the generally slipshod approach to evidence. Over numerous tedious passages, McConnell wonders aloud about the propriety of a given witness, including when it’s too late. “It seemed like everybody forgot they went to law school, including me,” he joked at one point after having allowed improper questioning of a witness to go unchecked.

It’s unclear how much of an impact the California witnesses had in the end. “To me that was a total waste,” says Steven King, one of the jurors at Inman’s trial. Their testimony “didn’t really matter at all back in the jury room.” In fact, King remembers most of the state witnesses being fairly unconvincing.

King, a tall white man in his 40s, lives in rural Hahira on family land dense with pine trees that mark the border of neighboring Lowndes County, visible just outside his window. King’s relative isolation made him attractive to both sides when it came to jury selection: In a place as small as Adel, finding jurors unconnected to a high-profile case was a major challenge. Today, King is a mail carrier and knows a lot of people in town. But at the time of Inman’s trial, King had just finished six years in the Army. “I didn’t even know we had a Taco Bell, let alone a murder here,” he said.

The jury was sequestered — a rare phenomenon in Cook County. King remembers police deputies escorting him and his fellow jurors around town in a little yellow school bus. Although he wasn’t thrilled at the circumstances, he took the job seriously, making detailed notes throughout the trial and recording his impressions of various witnesses.

The view from where Virginia Tatem and Lee Grimes were standing when Virginia claims to have heard the gunshot at  Taco Bell and see Devonia's car go into an abandoned Pizza Hut parking lot. Looking northwest.

The view from the spot where Virginia Tatem and Lee Grimes were standing when Virginia claims to have heard the gunshot at Taco Bell and seen Devonia’s car go into an abandoned Pizza Hut parking lot.

Photo: Ryan Christopher Jones for The Intercept

Among those King found least convincing was the newspaper carrier, Virginia Tatem, despite her being presented as the state’s star witness. On the witness stand, Tatem swore that she had seen Inman fleeing the scene of the crime — a memory so significant that she compared it to remembering where she was the day Ronald Reagan was shot. “I’ll never forget for the rest of my life what he looks like,” she said. “His face will be etched in my memory forever.” But during cross examination, Perry picked apart elements of her testimony, to show that her recollections were hardly reliable. She claimed to have seen police cars racing to the Taco Bell with their lights and sirens on, which contradicted testimony from the officers, who said they had never turned on either. And while the GBI report showed that Tatem had told Steinberg she saw “four or five black people” in a brown car that was following Inman, on the stand, she insisted that she had only seen three people.

Like many eyewitnesses who give repeated statements, Tatem’s claims to police evolved significantly since she first came forward with information, getting increasingly detailed as time passed. Even her courtroom testimony included details she had never brought up before. “I could see the Pound Puppy in the back window when the car went down the road,” she said at one point, only after being shown a photograph of the car in question.

Under cross-examination, Tatem was asked why she had waited a month to call police — and only after seeing the ad in the paper offering a hefty cash reward in exchange for information. “The $5,000 didn’t have anything to do with it,” she insisted. “It had to do with the fact that this woman had died, and she had a son. I have children of my own. I cannot live with the idea to think that someone took this boy’s mother from him for a robbery.”

In the jury box, King was skeptical. Tatem was probably out for the reward, he thought. And even if she wasn’t, the things she claimed to have seen and heard while standing on the corner of Adams and Fourth Street at 2 a.m. were pretty much impossible. Tatem maintained that she had heard a gunshot (despite being across multiple lanes of interstate from the Taco Bell) and that she had seen the cars pull into the Pizza Hut and heard the group speaking to one another some five blocks away. It struck King as totally implausible. “Anybody that’s from Adel knows you can’t see the Pizza Hut because the Dairy Queen is right there,” King said. He dismissed her testimony, he said, and he remembers other jurors doing the same.

If Tatem lacked credibility, other witnesses were far more disastrous. Despite their attempts to recant their statements months before, the state put both Marquetta Thomas and LarRisha Chapman on the stand. In his opening statement, Eidson alluded to their attempts to recant their statements. “I don’t know what she’ll testify to here at trial, whether she’ll change her mind or whatever,” he said about Thomas, vowing to confront her with her earlier statements if she tried to change her story.

He did the same with Chapman. In fact, under direct examination, Eidson had Chapman read her letter to Ryals out loud, then walked her through her previous statement to the GBI, including how she had recognized Inman’s voice from the weeds. If the point was to confuse the jury while impeaching his own witness, Eidson succeeded; as he concluded his questioning, he went so far as to blame Chapman for Donna Brown’s death. Showing her a photograph of Brown’s lifeless body, Eidson said that if Chapman had told somebody that she’d seen a man in the weeds that night, “Ms. Brown would still be alive.”

“But I didn’t see nobody,” Chapman said, reiterating that she had made up the story. Eidson ignored her: “If you had gone in and told Ms. Brown there was somebody hiding in the bushes, she might still be alive today.”

While Marquetta Thomas initially threw Inman under the bus by claiming that he had not been at the home she shared with her sister on the night that Brown was murdered — and that he had showed up the next day with a wad of cash — on the stand, Thomas mostly changed her tune. She insisted that she had been harassed by law enforcement until she provided them with the information they wanted to hear. She was motivated to do so, she said, because she got the feeling that the cops were angling to pin the crime on her, so she went on the offense, implicating Inman.

For all of the confusion and changing narratives, to King there was only one credible witness brought by the state — so credible, he would vote to convict, despite all the questions about the state’s evidence. “Without Kwame Spaulding,” he said, “they had no case.”

Spaulding was 19 and locked up on cocaine-related charges in January 1999 when Inman was indicted for Donna Brown’s murder. The two briefly shared a cell, and it was during that time that Spaulding said Inman gave up the details of his crime. Spaulding asked the jailers to contact the GBI, saying that if he could get some kind of consideration on his case, he would tell investigators what Inman had said. There is no paperwork commemorating any particular deal that DA Ellis might’ve offered, but Spaulding still shared his story, suggesting that he was assured there was something in it for him. According to Spaulding, Inman said that he’d done the job with his girlfriend’s sister and that the two had waited in the weeds for Brown to emerge from the restaurant. He said Inman confessed to shooting Brown with a .44 caliber gun and that the two then split the proceeds of the crime, leaving the deposit bag in Brown’s car.

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Donna Brown’s abandoned car in the Pizza Hut parking lot.

Photo: GBI

The details in Spaulding’s testimony caught King’s attention. He seemed to have information that only the killer would know — like the caliber of weapon used to kill Brown. “It wasn’t discussed and then Kwame knew it, knew what the caliber was,” he recalled. “Kwame to me was a very credible witness.”

Although Eidson told jurors that the detail about the .44 hadn’t been released to the public before Spaulding came forward, it was not true. That fact had been repeatedly printed in the newspaper. Spaulding’s story also included the assertion that the bank bag was found in the car; it wasn’t, but that erroneous detail was also reported more than once.

It took just two rounds of voting for the jury to decide that Inman was guilty. In a paradoxical twist, when it came to sentencing, the same evidence that convinced King to convict Inman was not enough to overcome his doubt about imposing a death sentence. “The murder weapon wasn’t found and there’s no eyewitness,” he said. “There was not enough evidence for me to vote for the death penalty.”

The jury ultimately decided that Inman should be sentenced to life without parole.

Inman’s girlfriend Lima was dismayed by the outcome. Of all the witnesses, she was the only one to maintain her original story throughout the case — from police questioning through trial testimony and beyond — without either embellishing or recanting. Inman was home with her the night that Brown was killed, she said. But in his closing arguments, Eidson painted her as an unreliable whore whose testimony should be dismissed, which infuriated Lima. “They just kept trying to put me down because I was a stripper, and I had kids from different dads,” she recalled. “And I was like, wait a minute, what does that have to do with Devonia being on trial for murder? You know, the trial was just a mess. To me it wasn’t even a trial. It was whatever the prosecutor said.” She insists that her background is irrelevant. “I don’t care what my life was like, what I did; what I said was true,” she said. “He’s innocent and I’ve been saying that from day one.”

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The post A Small Town Rocked by a Series of Violent Murders appeared first on The Intercept.

An Adel water tower seen from the Cook County Courthouse.
December 6, 2018

Who Killed Donna Brown?

In a section of the Georgia Bureau of Investigation website listing unsolved crimes, a few short paragraphs detail the death of a man in a small town more than 18 years ago. “On April 8, 2000, at approximately 1:20 p.m., Shailesh Patel was found murdered at his brother-in-law’s residence located on North Gordon Avenue, Adel, Cook County, Georgia,” it reads. “Mr. Patel, who lived in Locust Grove in Henry County, GA., had been staying at this residence and managing the E Z Mart Convenience store while his brother-in-law and family were vacationing in California.”

There’s no photograph of Patel on the GBI profile, only a forensic artist’s sketch of “a man seen in the area several hours prior to the incident” – a possible witness. Patel had been “stabbed and beaten,” it says, although this hardly captures the brutality of the crime. Former Adel Police Officer Tim Balch remembers arriving at the house, on a quiet block on the north side of town. “When I got there,” he says, “I just peeped in and it was like, ‘We’re calling GBI. This is bad.’” There was blood everywhere and signs of struggle throughout the home. Patel had been bashed over the head with a television. Balch, a large tattooed Army veteran who drives a Hummer, had seen his share of bloodshed. But the savagery of this scene stands out in his mind. Whoever committed the crime had to be “a straight psychopath.”

The GBI concluded it was a robbery gone bad but was otherwise tight-lipped. Additional details were published in the local Adel News Tribune. Patel, a 37-year-old immigrant from India, was only in Adel temporarily to help his brother-in-law with the convenience store attached to a gas station near the home where he lived. According to his nephew, Manishh, a college student in Atlanta at the time, Patel would ordinarily eat dinner in a neighboring town after his shift. But that night, he had apparently walked the few blocks back to the house and discovered a burglary underway. After Patel failed to show up at work the next morning, police were called.

There was a cruel irony to his death. Manishh told the News Tribune that Patel planned to move to Adel with his wife and two kids, in part to avoid the crime he had encountered in other places. Murders in Adel were rare — and the neighborhood where Patel was killed was particularly peaceful. “The only noise you ever heard around here was children playing,” the minister at the church next door told the newspaper.

Yet Patel’s death was the second violent killing in Adel in less than two years. In the fall of 1998, a woman named Donna Brown, the single mother of a 7-year-old son, had been robbed and shot dead in front of the Taco Bell where she worked, less than two miles away. A suspect was quickly arrested and jailed in that case. But now there was another murderer on the loose, a terrifying prospect in a town of just more than 5,000 that covers only eight square miles. “We have never had anything like this happen here before,” an elderly neighbor told the newspaper after Patel’s death.

Still, Patel’s family had warned him to be careful. His brother-in-law, Vishnu, had been robbed at the EZ Mart several months earlier by a “masked man brandishing an Exacto knife,” according to a separate newspaper report. Patel told police that a “stocky black man” had forced him to the store counter after 10 p.m. on October 26, 1999 and said, “Give me all the money or I’ll kill you.” He then punched Patel in the mouth and fled.

Whether police sought a link between the 1999 robbery and the 2000 murder is unclear. Nor is it clear what was done with all the physical evidence left at the house on North Gordon Avenue, which was ripe for forensic testing. The case was presumably in good hands: The GBI routinely took over cases in the rural towns of South Georgia, which did not have the resources or technology to investigate major crimes. In the year Patel was killed, the GBI was taking full advantage of new DNA technology; by 2002, according to the Atlanta Journal-Constitution, the agency boasted that it was matching an average of “six crimes a month” to criminals in the state’s DNA database.

Yet the trail to Patel’s murderer quickly went cold. In contrast to the swift arrest following the murder of Donna Brown at the Taco Bell in 1998, the Patel case would be handed off to “a plethora of agents” over the next 18 years, according to GBI Special Agent Mark Pro, who insists that the agency is still working on solving the crime today. “We’re dealing in an area in South Georgia that is very small, and the neighborhood and the people that live in that area are very close-knit,” he said, explaining that he did not want to tip off any potential suspects by divulging further details about the agency’s investigation. But at least one man who worked on the Patel case was surprised to hear it was never solved. Former GBI agent Richard Deas remembers taking photos and dusting for fingerprints. He retired in 2001, figuring the killer was someone who had been in trouble with the law “or would be in trouble with the law again.”

Regardless, the Patel family says it has not heard from the GBI in years. Now in his 40s, Manishh Patel says the family never received basic answers about what happened or why the crime was not solved. He could understand this coming from a rural police force in a town like Adel, he said. But the GBI is “like the FBI of Georgia, the highest criminal investigators in our state,” he says. “So that’s the question that I have. What did they do?”

An Adel water tower seen from the Cook County Courthouse.

An Adel water tower, seen from the Cook County Courthouse.

Photo: Ryan Christopher Jones for The Intercept

Adel, Georgia, the seat of Cook County, sits just off Interstate 75, a north-south artery that runs from South Florida all the way north to the Great Lakes. Six lanes of highway slice through the west side of town, with an overpass bridging the divide. An Alabama news columnist once described Adel as “a little town nestled between billboards,” which remains an apt description. The highway is lined with dueling displays offering nostalgia or redemption; approaching from the north, signs aggressively promote the Magnolia Plantation, an oversized Greek revival-style home where travelers can buy peach marinades and praline pecans. Farther down the highway, a series of eye-popping religious billboards — sponsored by the defunct website I-Will-Be-Back.org — portray the harrowing alternative to Christian salvation, with ashen zombie-humans depicting the damned. In one fiery scene, Jesus’s flowing white robes are surrounded by tanks and gun-pointing soldiers, below the words “I Am Still In Control.”

Located some 40 miles from the Florida border, Cook County was built up along the Georgia Southern and Florida Railroad, which first opened in 1890, the year after Adel was incorporated. The tracks ran from Florida to Macon, part of a rapidly growing network of railroads throughout the state that would be key to its economic recovery from the Civil War. By 1910, according to a historical marker in downtown Valdosta, some 30 miles south of Adel, the region was home to one of the largest cotton markets in the world. “The railroads were the life line that connected Valdosta to its market centers and led to the economic growth of the town,” it reads. The trains were a selling point for towns like Adel, advertised by a turn-of-the-century real estate broker as “the best little town in south Georgia, growing bigger and better every day.”

A McDonald's in Adel, GA.

A McDonald’s in Adel, Ga.

Photo: Ryan Christopher Jones for The Intercept

But for black residents of Cook County, it was a different story. The cotton industry had been built on the backs of their enslaved ancestors — and the railroads were built under brutal conditions using convict labor, which became plentiful as the state criminalized its black population following abolition. By the time Cook County (named after Confederate general Philip Cook) was founded in 1918, chain gangs were common, while the short-lived political representation of black Georgians gained during Reconstruction had come to an end.

The legacy of slavery is all around Adel. A historical marker in Hahira, some 10 miles south, commemorates “one of the deadliest waves of vigilantism in Georgia’s history” in 1918, when a notorious white landowner was allegedly killed by a man sent to work for him from the local jail. Eleven black residents were rounded up and lynched, including a woman who was eight months pregnant. The site where Union soldiers captured Confederate President Jefferson Davis, about 40 miles north of Adel, is home to a park, museum, and gift shop.

Today, Adel remains small and segregated, and the railroad tracks, now in the hands of the Norfolk Southern Railway, are the de facto divider between black and white residents. Officially designated as the City of Daylilies by Georgia lawmakers in 2006, the city website lauds Adel for preserving “its friendly atmosphere and small-town charm.” But the perception is not universally shared — especially where police are concerned. Black residents have long complained about harassment from cops in Adel. For those just passing through Cook County, it is hard to miss the police cars swarming I-75, bearing the names of myriad small cities and towns clustered in the area, each with its separate police force. And for strangers who come to town, perhaps to ask questions about old crimes, the reception from law enforcement can be downright hostile.

Train tracks in Adel, GA seen through the reflection of a business window.

Train tracks in Adel, Ga., seen through the reflection of a business window.

Photo: Ryan Christopher Jones for The Intercept

Another Killing

It was not long before the murder of Shailesh Patel was dramatically eclipsed by a third gruesome murder in Adel. Just seven months after Patel’s body was discovered on North Gordon Avenue, a beloved local grocer and his employee were beaten to death in broad daylight at a small store near the railroad tracks, just two miles away. The murder “horrified and revulsed the community,” the News Tribune reported on November 15, 2000, with a mugshot of the perpetrator on the front page: 20-year-old Hercules Brown.

It was a familiar name. In fact, for nearly two years, “Hercules Brown” had been whispered and muttered out loud — by callers to the newspaper, by gossiping teenagers at the car wash on 4th Avenue and Martin Luther King Boulevard, and by locals interviewed by the GBI. It was a name that came up in rumors, not only after the brutal killing of Shailesh Patel earlier that year, but also following the 1998 death of Donna Brown at the Taco Bell, where Hercules had worked for two years, often on the closing shift. As a different man sat in jail awaiting trial for that crime — swearing he was innocent — the brazen double murder in the fall of 2000 resurfaced old questions in Adel. Did police get the wrong man in 1998?

It is often said that the tragedy of wrongful convictions is not just what they mean for the innocents who lose their freedom, but also the threat they present to communities as a whole. When a person is imprisoned for a murder they did not commit, the real perpetrator is free to kill again. Among longtime residents of Adel, the period between the fall of 1998 and the fall of 2000 is a bad memory, a time when four people were violently murdered across a four-mile radius. Whether some of the murders could have been avoided is a question few seem willing to confront.

Almost 20 years later, Adel residents have moved on from that era in the town’s history. Yet the man convicted for the murder at the Taco Bell, Devonia Inman, has continued to proclaim his innocence while facing the prospect of dying in prison. Today, there is good reason to believe him, including compelling new evidence showing that police got it wrong. Many involved in the original case do not understand why Inman is still in prison. Others simply refuse to revisit it. From the Cook County Sheriff’s Department to the State Supreme Court, his pleas have proven futile. In Georgia, the truth will not set you free.

The Taco Bell in Adel, GA. Devonia Inman was convicted of a murder that happened in the parking lot of this Taco Bell in 1998.

The Taco Bell in Adel, Ga., in July 2017.

Photo: Ryan Christopher Jones for The Intercept

The Taco Bell Murder

It was well after midnight on September 19, 1998 and 40-year-old Taco Bell manager Donna Brown was still trying to close for the night. It was only her third day on the job, and she was having a problem with the staff time cards. Employees working the closing shift usually left the restaurant together, but Brown told the two teenagers with her that night to go on home. Brown said she would call the Adel Police Department for an escort when she was ready to leave — a courtesy routinely extended to employees making late-night bank deposits. That evening, the Taco Bell’s deposit would be roughly $1,700.

Robin Carter and LarRisha Chapman, both students at Cook County High School, were working with Brown that night. Carter was picked up first; she remembered seeing Chapman pacing back and forth as she waited for her boyfriend to pick her up, which he eventually did shortly before 1 a.m. It was 1:52 a.m. when Brown finally clocked out.

A call came in to Adel police dispatch 12 minutes later. Customers at a nearby Huddle House restaurant had seen someone lying outside the adjacent Taco Bell, possibly passed out drunk. An employee called the cops. When police arrived on the scene, they found Donna Brown’s lifeless body in the middle of the otherwise empty parking lot. She was on her back; her employee uniform was intact — her white, short-sleeve collared shirt was tucked into pleated navy pants; a green chile-shaped nametag was still attached to her shirt — and her arms were splayed out to each side. Her head was cocked slightly to the left, her wavy hair matted from blood that had spread out across the asphalt. She had been shot once through her right eye with a bullet that police would later conclude had been fired by a .44 revolver.

A medical examiner would eventually testify that abrasions on Brown’s palms and left knee suggested she had fallen and tried to catch herself. Investigators would theorize that she had been killed by someone lying in wait, based on strands of vegetation found on her pants, which matched the weeds that ran along the parking lot curb. In one spot, those weeds were tamped down — a sign to the police that the killer had sprung from the bushes, surprising her before shooting her to death.

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A photo of Donna Brown’s hand at the crime scene.

Photo: GBI

There had recently been a similar ambush at a fast food restaurant just over the interstate from the Taco Bell. Two Hardee’s employees were heading out after midnight on August 11, when a man in a ski mask emerged from the bushes next to the drive-thru window, pointing a pistol and demanding cash. But there was nothing to hand over — “we don’t take the money out at night anymore,” one of them told him. She and her co-worker drove straight to the police station, but officers lost the masked man as he ran off across a field.

If the murder of Donna Brown just one month later had any connection to the attempted robbery, police would never find out. Adel Police Officer Kevin Purvis was the first to arrive at the Taco Bell that night. He secured the area, putting crime tape around the scene. Then he waited. Later he would testify that, although there were people in the surrounding area at the time he found Brown’s body, he did not know who they were. He didn’t interview them to see if there was a possible witness. Nor did he find out who called 911. There was no police report; none of the Adel police officers at the crime scene that night documented their discoveries or recorded their actions. “We don’t usually do reports for murders,” Purvis explained. Everyone knew the case would be handed over to the GBI.

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A photo of the crime scene.

Photo: GBI

It was true that the GBI would take charge when a serious crime occurred in Adel. The agency had investigative resources far beyond that of rural police forces in South Georgia, some of which did not even have an investigator on staff. Although the Adel Police Department employed a full-time detective — a man named Jimmy Hill — the murder at Taco Bell would soon be led by GBI Agent Jamy Steinberg.

A thickset man with an imposing presence now in his mid-40s, Steinberg was a rookie when he was tasked with solving Brown’s murder. He had previously been a member of the South Georgia Drug Task Force, one of several narcotics units born of federal funding to fight the war on drugs. Tim Balch, the former Adel police officer who would later respond to the Patel murder scene, remembers Steinberg as methodical, a stickler for paperwork, and comically clumsy at times. “If there’s a court day, you’ll know it because he’ll spill something on his tie that day at lunch,” Balch recalled.

Steinberg arrived at the Taco Bell at 3:30 a.m. accompanied by members of the GBI crime scene unit. As the team began processing the murder scene, two things were immediately clear: The bank deposit was missing, as was Brown’s black 1995 Chevrolet Monte Carlo. The car was soon found in the parking lot of a long-shuttered Pizza Hut just over the interstate overpass. But neither the money nor the deposit bag was ever found — even though the Adel News Tribune would report, repeatedly, that the deposit bag had been recovered from the car.

There was plenty of physical evidence at the scene. Brown’s keys were wedged between the driver’s seat and the door; her purse was in the trunk. A pink bath towel was lying on the ground next to the car. Several finger and palm prints were lifted from the car, and investigators found tire tracks from a single vehicle leading into the parking lot, along with a shoe print near the abandoned car. Yet investigators somehow overlooked the key piece of evidence among these items, despite it being clearly visible in crime scene photos. Draped across the front passenger seat of the Monte Carlo was a makeshift ski mask, constructed from a length of gray sweatpants, with two eyeholes cut into it. The mask went undiscovered for approximately two weeks, until it was found in the car by Brown’s family.

That missed ski mask would be something of a harbinger for the investigation to come. The nearly 1,000-page GBI report on the murder of Donna Brown is thick but shallow, filled with leads never followed. Describing the GBI investigation to a jury years later, prosecutors claimed it was exhaustive: “They went down every path, they went down every road until they could exclude a person,” Assistant District Attorney Tim Eidson promised. But in fact, the opposite was true. After perfunctory efforts to match the finger and palm prints to several seemingly random people, the GBI quickly zeroed in on a single suspect who matched none of the physical evidence. With Adel Police Detective Jimmy Hill by his side, Steinberg turned to a 20-year-old who was new in town, with a recent history of run-ins with the police. His name was Devonia Inman.

Old family photos at Dave and Dinah Ray's house in Sacramento. The top photo is of Devonia Inman.

Family photos on display at Dave and Dinah Ray’s home in Sacramento, Calif., including Devonia Inman at the top.

Photo: Ryan Christopher Jones for The Intercept

A Troubled Teen

Devonia Tyrone Inman was born on August 24, 1978, to Dinah Pickett and Eddie Lee Inman. He was delivered at home in a small house on Tomlinson Drive, just one mile southeast from where the Taco Bell would later stand. His father was in the military; when Inman was very young, his father’s post moved the family out of Georgia, leading them to Sacramento, California. His parents divorced when he was about 4 — Dinah would testify that her husband was abusive to her, including in front of their son. She remarried and stayed in California; Eddie Lee returned to Adel, eventually going to prison.

The move to California might have helped Inman avoid his father’s fate. As Inman’s aunt Ethel Pickett recalls, in her day, “when a black child graduated from high school, they went to the army. … They got out of Cook County, because if they hadn’t of got out of Cook County, they was going to jail.” Inman’s uncle, Ben Pickett, returned after a year deployed with the Marine Corps in Vietnam. “They didn’t have as many police then to really harass everybody,” he remembers about Adel in the 1970s. But like any segregated southern town, the law had a way of coming down hard on black folks. In 1982, Adel made national news after two white police officers fired their guns at a car carrying four black youth who were allegedly speeding. The car overturned, prompting calls from the NAACP for the cops to be fired.

By the time he was a teenager, Inman began getting in trouble in California. There was an arrest for armed robbery at 15, which landed him in juvenile hall, followed by an attempted robbery and car theft a couple years later. There was also a burgeoning pattern of domestic abuse. When Inman was 16, he was accused of choking and threatening to kill a girl he’d been dating for two weeks. Later, the family of a live-in girlfriend named Veronica filed several complaints against Inman, referring to him by his middle name. “Tyrone beats up Veronica all the time, but lately he has been getting much more violent,” her sister told police in 1997. An aunt described a phone call she overheard between her niece and Inman, who became enraged that her family was not letting her see him. “Fuck your aunt, fuck your grandma, fuck the law, I’m gonna get rid of them all,” he said.

Yet Inman also had a reputation for making empty threats, even among those who had been on the receiving end of his violent temper. “His bark is bigger than his bite,” said Marquetta Thomas, who met Inman when he returned to Adel in 1998. Her sister Christy Lima was dating Inman at the time of the murder at Taco Bell. He was violent toward her, Thomas said, but mostly he was a “pretty boy” who bullied girls because he wasn’t tough enough for real fights. For her part, Lima insisted that she was usually the one who got physical during fights with Inman, like the time she struck him in the face with a belt buckle. “Devonia probably hit me once, you know what I’m saying?”

There are different rumors for why Inman returned to Adel in the summer of 1998. One, still repeated among law enforcement, is that he was fleeing a murder rap in Sacramento. But according to his family, his mother simply thought he would stay away from trouble under the protection of his large extended family. That summer, the family was traveling South for a family reunion; before they returned to California, Dinah told Inman that she was going to leave him in Adel with his grandmother. He was angry, but his mother made it clear he did not have a choice.

It did not take long for Adel cops to remember the newly returned Inman. His relatives had deep roots in town, and his father had only recently gone to prison. Besides, Inman had already had his own run-in with the local law, after fathering a child with a girl during a visit to Adel in 1995. Inman showed up at the hospital that December, apparently against the mother’s wishes. “I just didn’t want him in there,” she later testified, denying she was afraid of him. “I just wanted him to leave.” But her mother and the nurses took out a warrant on Inman. Cook County prosecutor Bob Ellis charged him with terroristic threats and acts. He received 10 years’ probation, which he promptly violated by returning home to California. Breaking the terms of his probation would later come back to haunt Inman.

Marquetta Thomas at her home in Baldwin, GA. in 1998, Mrs. Thomas told investigators that Devonia Inman committed a murder at the Taco Bell in Adel, GA, but then recanted at trial.

Marquetta Thomas at her home in Baldwin, Ga. Thomas told investigators in 1998 that Devonia Inman committed a murder at the Taco Bell in Adel, but recanted at trial.

Photo: Ryan Christopher Jones for The Intercept

Case Closed

It’s unclear why investigators first set their sights on Inman for the murder of Donna Brown. The GBI report shows that his name was first provided by a man named Zachary Payne, a sometime drug dealer in his early 30s, who had once lived near Inman’s aunt. On the evening of September 20 — just over 24 hours after the murder — Jamy Steinberg went to see Payne in the trailer park where he lived. The one-page summary of the meeting is short on details, but it says that Inman had recently come to Payne’s door to harass him with a couple of friends. Payne suggested that Inman was mad because Payne “knew” Inman’s girlfriend, Christy Lima. But whatever their original beef, it was clearly far less important than what Payne claimed to have seen Inman carrying: a gun pulled from his waistband and pointed in Payne’s direction. There was little else beyond that. Payne had no specific information about the murder at the Taco Bell, but “believes Inman would be very capable of committing this crime,” according to the GBI report.

On September 22, Steinberg and Hill went to see Inman’s girlfriend Lima at the home she shared with her sister, Marquetta Thomas. According to the GBI report, Lima said that Inman had a bad temper, but she had never had problems with him. She said that he had once hidden a revolver “between the mattress and box springs in her bedroom,” but she hadn’t seen it since. Perhaps most importantly, she said Inman had been with her the night Donna Brown was killed. A third person, Victoria Allen, also said Inman had been at the house all night, except for a brief time when he left around 11 p.m., and that she did not think he was capable of committing the crime.

But Thomas told a very different story. Thomas told Steinberg and Hill that Inman had recently talked about “jacking and robbing” places in order to get enough money to “come up” in the Adel drug trade. He’d tried to involve her in his robbery plots, she said, but she declined. And she said Inman was not home the night of Brown’s murder — and that her sister would probably lie to protect him.

The next day, Jimmy Hill went to see Inman at the Adel jail. Conveniently, he had been picked up on a warrant for violating probation in connection with the incident at the local hospital several years earlier. Inman reluctantly admitted that he’d briefly possessed a gray .38 snub-nosed revolver that he’d found in his uncle’s closet. And he said that he’d been at Lima’s house all night on the night of the murder.

But police didn’t believe him. Investigators began re-interviewing individuals they had spoken to before. A big break came almost immediately, when 16-year-old LarRisha Chapman met again with Steinberg on September 24. Chapman had originally told him that nothing out of the ordinary had happened at the Taco Bell on the night of the murder. But now she had a new story to tell. Waiting outside the Taco Bell for her boyfriend, she said, she did see something — or rather, she heard something: While sitting on the curb tying her shoe, she was startled to hear Inman’s voice coming from the weeds. The person had a “bald head and a white tank top,” she said. She told Steinberg that she had been too scared to say anything earlier.

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A diagram of the Taco Bell parking lot, featuring measurements from key points in the crime scene.

Image: GBI

From there, the evidence against Inman began to stack up. A little over a month after the crime, a white woman named Virginia Tatem, a newspaper carrier, came forward with a damning account. On the night of the murder, she said she was under an awning outside the Howard Johnson’s just up the block from the abandoned Pizza Hut — the place where Brown’s car would later be found. It was around 2 a.m. and she was waiting for the papers to be brought up from Valdosta, when she heard what might have been a gunshot coming from the direction of the Taco Bell on the other side of the interstate. Shortly after that, she said, two cars came roaring across the overpass: the first, being driven by a black man wearing a gold chain, was a black two-door that matched the description of Brown’s Monte Carlo and going so fast that it fishtailed as it made the corner in front of her. Following close behind was a second car carrying at least two other black men and one black woman. They drove down the dark road that led to the Pizza Hut parking lot and disappeared. Steinberg showed Tatem a photo lineup, where she identified the driver of the first car. “Oh my God, that’s the one,” she said, according to the GBI report, covering her mouth and pointing at a picture of Inman.

The witness who would clinch the case against Inman came forward early in the new year. In January 1999, a man named Kwame Spaulding contacted the GBI from a jail in Valdosta, where he was being held on cocaine charges. Spaulding had been locked up with Inman, who remained in jail after being arrested on the probation violation. According to Spaulding, Inman had confessed to killing Brown, telling him he’d done the job with his girlfriend’s sister — presumably, Marquetta Thomas — and that the two had waited in the weeds for Brown to emerge. Then Inman shot her with a .44 caliber gun and the two had split the proceeds of the crime, leaving the deposit bag in Brown’s car. Spaulding asked if his jail time might be reduced for having provided this critical information. Steinberg said he would see about it.

On January 11, 1999, Inman was indicted for Donna Brown’s murder. His trial would not take place until 2001. In the meantime, elected District Attorney Bob Ellis announced he would seek the death penalty.

Inman’s relatives expressed disbelief. Ben Pickett recalls contacting Adel Police Chief Kirk Gordon and telling him repeatedly that the police had rushed to judgment, that word around town was that someone else had committed the crime. “I said, ‘You need to put the mens out on the street and find out what’s going on,’” he said, but was told, “No, we got our man.” Pickett answered, “Chief, you got the wrong man.”

A recent photo of Devonia Inman while in prison.

A recent photo of Devonia Inman while in prison.

Photo: Ryan Christopher Jones for The Intercept

Unreliable Witnesses

For all the circumstantial evidence pointing to Inman, there were reasons to think that his uncle was right. For one, Marquetta Thomas, whose story was so dramatically different from that of her roommates, had numerous potential reasons to lie. There was the fact that Inman mistreated her sister, which made Thomas hate him and gave her a motive to implicate him. More inconvenient for the GBI’s investigation, numerous people said Thomas — who would eventually be sent to prison for acting as a getaway driver in an unrelated armed robbery — had bragged that she herself was involved in Brown’s murder. She even fit the description of the woman in the second car that Tatem allegedly saw that night. Yet there is little indication in the GBI report that Steinberg investigated Thomas’s potential link to the crime.

Tatem’s story was also questionable. It was highly unlikely that she would have been able to see and hear everything she claimed from the spot where she stood that night. She had also waited more than a month to come forward — only after a $5,000 reward for information in the case had been published in the Adel News Tribune.

Finally, there were problems with Spaulding’s story. Like any jailhouse snitch, it was clear he sought to trade information to help himself, regardless of how accurate it was. But more importantly, many of the details he offered had been published in the newspaper by the time he came forward — including the erroneous detail about the deposit bag being left in Brown’s car. Spaulding also said that Inman had shot Brown with a .44 — a detail prosecutors would later say was never made public, convincing Steinberg that Spaulding was telling the truth. But that detail, too, had repeatedly appeared in the paper.

But the most significant reason to doubt the case against Inman was the GBI’s failure to pursue alternative suspects, central among them, Hercules Brown. In a brief interview with Steinberg, who had secured a list of all current and former Taco Bell employees, Hercules was asked questions that might implicate other people in the case, for example, whether Hercules knew of any trouble Donna Brown might have had with a boyfriend. Not surprisingly, Hercules said no.

Hercules, then a high school senior, worked at the Taco Bell for two years, often on the closing shift with LarRisha Chapman. He was not at work the night of the murder, allegedly because he was either at home or had been on a school band trip that evening. Yet numerous people came forward with information pointing toward Hercules. Though some of the information is included in the GBI report, there is no indication that Steinberg or Hill ever acted on any of the tips.

One man told investigators that his brother said Hercules had admitted that the crime was an inside job and that LarRisha Chapman was supposed to help him rob the store that night but that she’d chickened out. A second man also told police that he knew who did it — that the man had confessed to him that he’d used a .44 and that he’d worn a ski mask because Donna Brown knew who he was. The man would later say that the story had come from Hercules, while the two of them were talking at a local car wash.

Finally, Takeisha Pickett, Inman’s cousin, said she told Steinberg that before she quit her job at Taco Bell in July 1998, on two separate occasions, Hercules had asked whether she would join him in a plot to rob the store. Pickett turned him down. While Pickett is adamant that she gave Steinberg that information just two weeks after Donna Brown’s murder, it is not included in his report.

If Steinberg had followed up on these leads, there is a good chance that at least two, if not three, additional murders in Adel, Georgia, could have been prevented.

The post Who Killed Donna Brown? appeared first on The Intercept.

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)
November 18, 2018

His Conviction Was Overturned. Why Is Arizona Doing Everything in Its ...

Elishia Sloan was 15 years old when her mother’s ex-boyfriend went to death row for a crime he swore he didn’t commit. It was 1995; Barry Lee Jones was convicted of raping and murdering a 4-year-old girl at the Desert Vista trailer park in Tucson, Arizona. Sloan had previously lived there with Jones and her mom, Joyce Richmond, who went by Rose at the time. The couple was hooked on drugs — all the adults at the trailer park seemed to be. But Sloan trusted Jones, who was like a father to her. “It’s weird, because usually as a pre-teen, you’re like, ‘You’re not my dad,’” she recalled. “But it wasn’t like that.” She did not believe Jones had killed that little girl.

Jones wrote letters to Sloan and her mother while awaiting trial in the Pima County Jail. He tried to be upbeat, using envelopes illustrated with cartoons. But after he was found guilty and sentenced to die, Sloan and her mom eventually fell out of touch with him. Sloan married a boy from the trailer park, later divorcing him, and settled with her mom in Montana. Richmond got clean while Sloan worked on raising her three kids. As the years passed, they would periodically look for information about Jones’s status on the website of the Arizona Department of Corrections. “It’s a scary feeling, looking at that page,” Sloan said. “But thank God it always said ‘Active.’”

Sloan and Richmond moved back to Tucson last year. Early last month, Sloan Googled Jones’s name and found the series of articles on his case published at The Intercept. They laid out the myriad problems behind Jones’s conviction: tunnel vision and sloppy police work by the Pima County Sheriff’s Department; unreliable evidence, from dubious eyewitness testimony to junk science; and a medical examiner who appeared to have shifted his conclusions to support the state’s case.

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Elishia Sloan, photographed on Oct. 28, 2018, in Tucson, Ariz.

When Sloan got to the third story in the series, she called out to her mother, who was in another room. “I was like, ‘Oh my God, they overturned his conviction.’” Sloan sought out Jones’s legal team and spoke to Andrew Sowards, an investigator with the Arizona Federal Public Defender’s Office in Tucson. As it happened, he said, Jones was due in court the next day, October 12.

It was a gray, rainy morning as Sloan and her mother drove their black Ford truck to the U.S. District Court downtown and went up to the sixth floor. Richmond, 68, wore jeans, a coral top, and a gold chain. Sloan, 38, wore a shirt that said “Rock ’n’ Roll Forever.” At 9:20 a.m., Jones was escorted into the courtroom and seated just a few feet in front of them. He wore orange prison garb and looked almost unrecognizable, his remaining hair thin and gray. U.S. marshals walked in and out of the courtroom as Sloan and Richmond tried to follow the back and forth between the attorneys and U.S. District Judge Timothy Burgess.

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U.S. District Judge Timothy Burgess.

Photo: U.S. Court for the 9th Circuit

It was Burgess who had overturned Jones’s conviction, after presiding over an evidentiary hearing that exposed fatal flaws in the case. In his July 31 order, Burgess said Arizona prosecutors had to either retry Jones or release him, within a strict timeframe. But the Arizona Attorney General’s Office, which has spent years fighting to keep Jones on death row, filed a notice of appeal before the 9th Circuit Court to reverse the order and reinstate Jones’s conviction. Prosecutors also sought a stay from Burgess to waive the fast-approaching deadline to retry Jones. “We could be up in the 9th Circuit for a long time,” Jones’s attorney, Assistant Federal Public Defender Cary Sandman, told me. In the meantime, Jones would remain in prison.

Speaking before the court on October 12, Sandman pushed back on the state’s request for a stay. “The fact of the matter is that Mr. Jones has spent nearly 24 years on death row on a premise that’s completely faulty,” he said. That premise was that Jones had fatally assaulted the victim the day before she died. “And we now know there’s no reliable medical evidence to support that,” he said.

“When did it happen? Who did it?” Sandman went on. “We’re left now with no answers to those questions.” He added, “The time has arrived for him to get a fair trial.”

At around 10:30 a.m., Burgess declared a 20-minute recess and said he would hand down his decision when he returned. There was a quiet stir in the courtroom — federal judges rarely rule from the bench. When Burgess returned, he put on his glasses and read his decision aloud. The state’s motion for a stay was denied, he said. Prosecutors would have to move forward with a retrial, to begin by March 13, 2019. Jones was quickly whisked from the courtroom.

At a nearby McDonald’s afterward, Sloan and her mother processed what had happened. It was hard for Richmond to comprehend why the state insisted on fighting Jones’s release. “How do they sleep at night?” she asked. “They think he’s guilty,” her daughter replied. Neither of them believed it was true. In a 2002 affidavit filed by Jones’s legal team, Sloan wrote, “Barry would never hurt a child, especially not sexually. In fact, Barry was the one who always tried to protect the girls in the park from all the perverts who lived there.”

Sloan and her mother could think of plenty of other people in the trailer park who might have hurt that little girl. “If [detectives] had investigated right, they could have investigated everybody,” Richmond said. “There was a lot of weird men there. I’d be the first to admit that. They had just as much opportunity to do anything as anybody else.”

For a brief moment over the summer, it seemed possible the state of Arizona would be open to some kind of mutual resolution in Jones’s case. The Pima County Conviction Integrity Unit — an office founded in 2015 to review questionable convictions — had signaled it was open to examining it. In an August email, Supervising Deputy County Attorney Rick Unklesbay, who is in charge of the CIU, told me that “once the case comes back to this office we will be reviewing it.” But he backtracked in a more recent email, writing that “it’s a bit premature to have a discussion about where the case is going.”

The notion that the state must not be too hasty carries a cruel irony for Jones. At 60, he has spent much of his adult life on death row, struggling with depression and thoughts of suicide. After his conviction was overturned, “there was a sense of relief in Barry’s voice I’ve never heard,” Sowards told me. Sandman hoped to secure Jones’s release pending the appeal; Jones’s older brother, Otis, an Army veteran retired from law enforcement, signed an affidavit offering to let Jones stay at his home south of Tucson. But prosecutors cast Jones as a danger to the public, warning in filings that “any release from custody will be brief,” since Pima County law enforcement would be poised to re-arrest him in advance of a retrial.

If it was hard to imagine how the state could retry Jones given the dismantling of its case, a retrial nevertheless seemed to be on the horizon after Burgess’s October 12 ruling. Jones was appointed a trial attorney and a hearing was scheduled in Pima County Criminal Court. But on the eve of the hearing, his future was thrown into doubt once again. The state had asked the 9th Circuit to grant the stay denied by Burgess — the hearing was canceled. A week later, the 9th Circuit ruled for the state. It ordered that the appeal proceed as quickly as possible. Rather than allow its case against Jones to withstand the scrutiny of a new trial — and rather than face the likelihood of an acquittal — the attorney general’s office is determined to undo Burgess’s order overturning Jones’s conviction.

For Jones, the setback was compounded by his temporary transfer to Pima County Jail. According to Sandman, prison officials did not send any of the medication Jones takes for anxiety and depression. It was “very traumatic,” Sandman told me. Jones is faring better now, back among his old neighbors at the maximum-security prison in Florence, Sandman said, where Burgess’s order has made the rounds on death row. “It helps quite a bit that most people recognize he shouldn’t be there.”

It has now been more than a year since the evidentiary hearing in Jones’s case. Seven days of testimony in the fall of 2017 revealed how badly the Pima County Sheriff’s Department had botched the investigation into the death of 4-year-old Rachel Gray. The child’s lifeless body was carried into the hospital by her mother, Angela Gray, shortly after 6 a.m. on May 2, 1994. Angela, Jones’s then-girlfriend, had been living with Jones in his trailer along with her three children; it was Jones who dropped her off with Rachel at the hospital, then came under suspicion when he did not return.

In an aggressive interrogation later that day, Sheriff’s Detective Sonia Pesqueira accused Jones of killing Rachel, although it was not at all clear yet how she had died. Pesqueira never investigated the timing of Rachel’s fatal injury — a tear in her duodenum, part of her small intestine, caused by some sort of blow to her stomach. At the evidentiary hearing, it became clear that Pesqueira merely assumed the injury had occurred the day before Rachel died and tailored her investigation accordingly. But medical experts reiterated what they have said for years: that the injury could not have occurred in the window presented by the state.

To prevail at the evidentiary hearing, Jones’s attorneys had to show that his trial lawyers had provided ineffective assistance of counsel in violation of his Sixth Amendment rights. Burgess found that they had proved their case. In his 91-page order overturning the conviction, Burgess concluded that if not for the failures of Jones’s original defense attorneys, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” He sharply criticized Pesqueira for her failure to interview alternative suspects, and Dr. John Howard, the former Pima County medical examiner, whose estimates about the timing of Rachel’s fatal injury had inexplicably shifted from his pretrial interviews to his testimony to the hearing decades later. Had Jones’s defense attorneys done their job properly, Burgess wrote, “the jury would likely have found Dr. Howard’s testimony not credible or persuasive.”

Burgess’s decision validated the feelings of at least two jurors who had served on Jones’s trial, both of whom told me that they had been troubled by the weakness of his defense representation. Hildegard Stoecker remained especially disturbed by the case. She had followed news of the evidentiary hearing and was glad to hear that Burgess had overturned Jones’s conviction. Had she known about the issues brought up at the hearing, she wrote in an email this past August, “I know I would never have voted to convict Barry Jones.”

The Evo A. DeConcini United States Courthouse seen on Oct. 22 in Tucson, Ariz.
(Caitlin O'Hara for The Intercept)

The Evo A. DeConcini United States Courthouse in Tucson, Ariz., on Oct. 22, 2018.

On November 14, prosecutors filed their appeal to the 9th Circuit. It was accompanied by thousands of pages of case records and exhibits — a daunting amount of material to review, especially given the expedited schedule ordered by the court. In their opening brief, prosecutors confidently reasserted Jones’s guilt, while rehashing arguments they have made before.

They insisted the medical evidence presented at the evidentiary hearing actually supported the state’s case against Jones. They argued that Jones’s trial lawyers had been perfectly adequate in investigating Rachel’s fatal injury, for example, by consulting with an independent pathologist. (Just because there was no indication the expert had ever reviewed the evidence necessary to provide an opinion didn’t mean it never happened.) Moreover, prosecutors said, even if the medical evidence did not prove that Jones had raped and fatally beaten Rachel, jurors would have found him guilty of endangering her health by failing to take her to the hospital the night before she died. Under Arizona law, this would still make him guilty of murder — and eligible for the death penalty.

Above all, the appeal invoked the powerful procedural barriers that routinely prevent people like Jones from winning challenges to their convictions. Under the U.S. Supreme Court ruling in Strickland v. Washington, which governs ineffective assistance claims, courts must show considerable deference to the decisions made by defense lawyers. The U.S. Supreme Court has said that there must be a presumption that their actions were undertaken “for tactical reasons rather than through sheer neglect,” prosecutors wrote, arguing that Burgess was wrong to find Jones’s defense unconstitutionally inadequate.

More confusing was the state’s continued insistence that Burgess should never have granted the evidentiary hearing in the first place. Prosecutors invoked the most reliable bulwark against revisiting questionable convictions: the Antiterrorism and Effective Death Penalty Act. Passed in 1996, a year after Jones was convicted, the sweeping law known as AEDPA drastically raised the bar for overturning convictions in federal court, in part by forcing judges like Burgess to show significant deference to rulings by state courts. When it came to ineffective assistance claims, AEDPA also bolstered rules shutting out such claims from federal review if a defendant had previously failed to bring them in state court.

For most people in Jones’s position, AEDPA is indeed the last word. But Jones got back into federal court thanks to a 2012 U.S. Supreme Court ruling that carved out a limited exception, at least in Arizona. Martinez v. Ryan held that, if the failure to bring an ineffective assistance claim in state court was itself due to the ineffectiveness of a state post-conviction attorney, a federal court could consider the claim. For Jones, Martinez opened the door to de novo review — a fresh consideration with no need to defer to a lower court. Crucially, this meant Burgess was not beholden to the strictures of AEDPA when considering his case.

Yet prosecutors insist the law still controls Jones’s fate. “Congress specifically intended AEDPA to limit federal evidentiary development,” they wrote, “and to restrict the general availability of habeas relief.” In other words, it was enough for Burgess to have reviewed Jones’s claim at all, they argued — Jones was not entitled to actually prove it in court.

In Sandman’s view, the AEPDA argument is “absurd.” Among other things, he pointed out that all the Supreme Court rulings prosecutors used to support it predate the Martinez ruling. “I’m not sure why they’re doing that,” he said. “Then again, I’m not sure why they’re doing anything that they are doing. Because if they were the least bit fair-minded, they would get on to either retrying Jones or let him go.”

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Elishia Sloan, photographed on Oct. 28, 2018, in Tucson, Ariz.

Apart from dubious legal arguments, the state’s appeal to the 9th Circuit is perhaps most striking for its highly selective narrative about what happened at the Desert Vista in the spring of 1994. Whereas prosecutors once argued that lead detective Sonia Pesqueira followed the evidence of guilt for Rachel’s injuries “directly to Jones,” there is no mention of her now. Instead the state constructed a circumstantial case against Jones, starting with the claim that 4-year-old Rachel was afraid of him in the weeks leading up to her death. But this assertion rests heavily on testimony from Rachel’s sister, Becky, who was 10 years old when her sister died and whose statements evolved significantly over time to further implicate Jones. For a reader intimately familiar not only with Jones’s case but also with the trial of Angela Gray, who was convicted of child abuse but acquitted of murder, it is not hard to notice such things. It is far less clear what the 9th Circuit will make of them.

In our conversation at McDonald’s, Sloan remembered being glad when Jones would return to the trailer at the end of the day. “It wasn’t like, ‘Oh God, he’s home,’ the way it would be if he was an abuser,” she said. Like Jones’s own daughter, Brandie, who told police that her father never hit her, Sloan said Jones never laid a hand on her. She was just a few years older than Brandie; the girls used to sneak out of the trailer to hang out with the kids in the trailer park, which sometimes got them in trouble. Jones disciplined them but never harshly. “Barry caught me in the laundry room, kissing a boy, and I got grounded for, I swear, he said my ‘whole life,’” Sloan said. “But it ended up being a day.” Richmond remembered how if Brandie and Sloan wanted to smoke a cigarette, “they had to come inside and sit down in the room and read a book for an hour.”

“I hated it so much,” Sloan chuckled.

Sloan says she barely remembers anything from the time Jones went to death row. But she recalls being questioned by Pima County sex crimes prosecutor Kathy Mayer back in 1994. Sloan said Mayer tried unsuccessfully to get her to implicate Jones by showing her graphic photos from Rachel’s autopsy. “She’s like, ‘Look at these pictures. This could have been you,’” Sloan said. In her 2002 affidavit, Sloan wrote, “The prosecution wanted me to say how mean he was, but I would not lie.” Mayer, who retired earlier this year, did not return messages seeking comment.

Desert Vista Village seen on Oct. 22 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Desert Vista Village, formerly known as the Desert Vista trailer park, on Oct. 22, 2018, in Tucson, Ariz.

In retrospect, Sloan says, the way they lived at the Desert Vista seems shocking. They didn’t always have food to eat; she remembers getting fresh fruit from a man who would bring produce in a truck from a food bank. Sometimes they got bags of leftover hamburgers that were thrown out by a nearby McDonald’s. “You look at it from the outside, and you’re like, ‘Wow. These poor kids,’” Sloan said. But she doesn’t remember her childhood as unhappy.

Richmond says that for all the problems at the trailer park — and despite what happened to Rachel — the community there tried to look out for one another, especially for the kids. Jones was particularly well-liked, Sloan remembered. “He would give you the shirt off his back,” she said. “Barry was a very nice-looking guy when we met,” Richmond says. She was “head over heels.” Richmond and Sloan passed by the Desert Vista when they returned to Tucson last year. “It looked the same, but it wasn’t the same, you know?” Richmond said.

Sloan felt guilty about falling out of touch with Jones. “It’s weird to see how he’s aged so much,” she said. She became emotional when I mentioned the letters he sent her from jail, which she did not remember now. Richmond said Jones wrote her a letter at one point and said, “‘If you’re not gonna be consistent about writing me, don’t write me anymore.’ And I didn’t. And I should’ve. But 24 years is a long time to write letters every day or every week, you know?”

The post His Conviction Was Overturned. Why Is Arizona Doing Everything in Its Power to Keep Barry Jones on Death Row? appeared first on The Intercept.

Rodney-Berget-class-photo-zoom-1540596968
October 29, 2018

Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. Bu...

One of the first times Juliet Yackel met with Rodney Berget at the South Dakota State Penitentiary in Sioux Falls, he shared something startling about his childhood. “He told me he had been in the Special Olympics,” she said. Berget seemed proud as he brought up the memory. As a young kid in the 1970s, he had problems fitting in, and this had been a rare chance to compete — “to be able to be just like everybody else around him,” Yackel recalled.

In a different context, this might not have raised an eyebrow. But Berget was on death row. Under the U.S. Supreme Court ruling in Atkins v. Virginia, people with intellectual disabilities are ineligible for execution — it is one of the first things defense attorneys are supposed to look for when representing a client in a capital case. Yet there was no sign Berget’s trial attorney had investigated this background at all.

Yackel, a veteran mitigation specialist based in Chicago, had originally been hired as part of Berget’s state habeas appeal, to seek possible claims of ineffective assistance of counsel — failures by his original defense attorney that might show Berget’s trial had violated his constitutional rights. As she started to go through the attorney’s files, she noticed public welfare records that immediately caught her attention. One showed that Berget had been evaluated by a psychologist when he was 9 years old, who assigned him an IQ score of 70. “This boy appears to be quite immature and to be suffering from borderline mental retardation,” the psychologist wrote. “He probably should be in special education classes.”

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Rodney Berget in an elementary school class photo.

Photo: Courtesy of Ed Korbel

Yackel began to dig deeper into Berget’s childhood history. She met with two social workers who shed light on Berget’s home life, which was rife with alcoholism and physical abuse. His defense attorney had discussed some of this at trial. But he never mentioned that the social workers had been assigned to Berget in large part over concerns he had an intellectual disability.

It quickly became clear to Yackel that something had gone horribly wrong with Berget’s defense. “All of these pieces of the puzzle were available and not pursued,” she said. The revelation about the Special Olympics was just one more. After calling the organization’s office, she received a letter signed by the CEO, who confirmed that “Rodney Berget’s name appeared on our 1973 State Meet roster” in Sioux Falls. He was 10 years old, a student at Monroe Elementary School in Aberdeen.

Yackel was still pursuing her investigation when Berget sent a letter to Judge Douglas Hoffman in August 2016. It said that he wanted to drop his appeals. This made him a “volunteer” in legal parlance — and vulnerable for imminent execution. It was only after this, in September 2016, that Berget’s post-conviction attorney, Eric Schulte, told the court that it appeared “a complete investigation” into Berget’s mental competence had never been done.

It’s not unusual to see evidence of abysmal defense lawyering in old capital trials. When Yackel graduated law school in 1992, mitigation was a concept that had not fully caught on in many courtrooms across the country. It was not until the 2000s that the American Bar Association developed specific guidelines defining the role of mitigation specialists in capital defense: individuals trained to investigate a defendant’s family background, as well as screen for mental illness and intellectual disabilities. But Berget’s conviction was not old at all. He was convicted and sentenced to die in 2012. “It’s not like we’re talking about looking back at an old case where we didn’t know what we were doing,” Yackel said. “This was where the highest standards of care were already in place.”

Schulte, a civil attorney in Sioux Falls, had no previous experience with capital cases. But during the appeal he knew he was obligated to ask for time to complete the investigation into Berget’s mental competence, which could prohibit his execution. At the September 2016 hearing, Judge Hoffman obliged. The defense hired Dr. Greg Olley, a leading expert in developmental disabilities at the University of North Carolina. Over the next year, Olley reviewed all the available records and interviewed 15 people who knew Berget, including former teachers, social workers, family, and friends. He also reviewed intelligence tests individually administered to Berget between the ages of 9 and 17. In Olley’s subsequent reports, he explained that a diagnosis of intellectual disability required evidence of “significant impairment,” both in general intelligence and adaptive behavior, and the “origin of these impairments in childhood.” All of these factors applied to Berget.

South Dakota prosecutors hired an expert too, a psychologist who swiftly produced a report finding that Berget did not have an intellectual disability. But he conducted no interviews and relied on tests and sources that were widely considered to be invalid by leading medical experts. In fact, mere months after he released his report, the U.S. Supreme Court handed down a ruling that thoroughly debunked the factors he relied on in his evaluation of Berget. The 2017 decision in Moore v. Texas invalidated Texas’s methods for assessing intellectual disabilities, which were rooted in scientifically unsound stereotypes. South Dakota’s expert had drawn on these very same misconceptions. He did “everything that Moore says you should not do,” Yackel said.

In 2017, Hoffman granted an Atkins hearing to settle the question for good. As it approached, Yackel felt confident the state’s expert would be forced to concede he was wrong. But on the stand in January 2018, the expert stuck with his findings. On February 1, Hoffman sided with prosecutors and upheld Berget’s death sentence. “There was no incorporating the new standards, no acknowledging Moore at all,” Yackel said.

“This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel said. “There is no question here. This is not a close call.” She pointed out an ugly irony. It was the state itself, through its schools, that first deemed Berget in need of special education resources to accommodate his intellectual disability when he was a child. “Now that exact same state is turning its back on their own original finding,” she said. “It’s the only way that they justify killing him.”

Barring any last-minute intervention, Berget will die on Monday at 1:30 p.m. Unlike most death penalty states, South Dakota does not set an exact execution date months in advance; a warrant issued by Hoffman in August said that Berget would die sometime between October 29 and November 2. On Friday morning, the South Dakota Department of Corrections issued a press release announcing the date and time.

On Friday afternoon, Yackel — who is also an attorney — filed an emergency writ to the South Dakota Supreme Court. She argued that Berget was not competent to make the decision to end his life. She also chronicled Berget’s decadeslong history of self-harm, including several suicide attempts beginning when he was a teenager. Along with evidence of intellectual disability, Yackel argued, Berget showed signs of mental illness that his attorneys failed to explore — which she suspects were at the core of his decision to drop his appeals.

Questions of mental competence are often raised about “volunteers” for execution. For lawyers who represent such individuals, ethical obligations to their clients do not necessarily allow them to fight on all fronts to save their life. But that is what makes mitigation so critical at the outset. In Berget’s case, judges repeatedly asked his trial attorney, Jeff Larson, whether Berget was competent to make decisions on his own behalf. Larson said he was but he never carried out an investigation to be sure.

On Saturday, Larson filed an affidavit signed by Berget. It rejected Yackel’s intervention and reasserted his decision to die.

Berget’s crime was certainly serious. He was convicted of killing a prison guard during an attempted escape in 2011. And he has a history of violence that would make plenty of people accept his execution without a second thought. But his case also reveals a disturbing breakdown in the constitutional protections that are supposed to be in place for people facing the death penalty. Dr. Stephen Greenspan, the most cited authority on intellectual disability in capital cases, recently reviewed the records in the case. He called it “one of the most outrageous” cases he’s seen, citing “the egregiousnesses of the ruling that was made by the court” after the Atkins hearing.

Greenspan explained one of the major problems that can surface in cases like Berget’s. Like most of the general public, “lawyers and judges are laypeople when it comes to their background and understanding of intellectual disability,” he said. They think of someone with an obvious impairment that can be easily detected. This problem is compounded if defendants make efforts to hide evidence of intellectual disability. “I have a lot of experience with lawyers who overestimate the competence of their clients,” Greenspan said. Neither Larson nor Schulte responded to messages seeking comment for this article.

The ethical dilemmas presented by death row volunteers are not new in South Dakota. Of the three people executed in the state since the death penalty returned in the late 1970s, all of them had dropped their appeals. Among them was Berget’s own co-defendant, who was executed in 2012. But Berget’s case is unusual in another way. His older brother, Roger, was executed in Oklahoma in 2000.

To Sean O’Brien, a law professor at the University of Missouri in Kansas City, who spent decades representing people on death row, the scenario is both unique and predictable. “The kind of trauma that Rodney experienced growing up was also visited on his brother,” he said. For Berget, who looked up to his brother as a child, the challenges of an intellectual disability would make it even harder to cope with the magnitude of such trauma. “These things are not separate,” O’Brien said. “They’re layered on top of one another.”

Investigators stand at the entrance to the South Dakota State Penitentiary in Sioux Falls, S.D. on Tuesday, April 12, 2011.  Two inmates killed a guard Tuesday during a failed escape attempt at a Sioux Falls prison, authorities said. Rodney Berget and Eric Robert, both 48, were apprehended on the grounds of the South Dakota Penitentiary, and a sweep of the facility showed all staff and inmates accounted for, the state Department of Corrections said.  (AP Photo/Argus Leader, Elisha Page)

Investigators stand at the entrance to the South Dakota State Penitentiary in Sioux Falls on April 12, 2011.

Photo: Elisha Page/The Argus Leader via AP

There is no denying the violence that sent Berget to death row.

The victim, Ronald Johnson — known as “R.J.” to his friends and family — was working a shift at the South Dakota State Penitentiary on April 12, 2011. It was his 63rd birthday, and he was supposed to be off of work. But a colleague had called in sick. At 7:15 in the morning, he arrived at the prison. He was wearing a baseball cap, brown pants, boots, and his state-issued uniform coat. In his wallet he carried photos of his grandchildren.

Johnson was assigned to the Prison Industries building, which housed Pheasantland Industries, a division of the South Dakota Department of Corrections. For 25 cents per hour, incarcerated workers produced a wide range of “high-quality, low-cost products for state agencies,” according to the Pheasantland catalog, from bookbinding to cabinets to license plates. Toward the back of the building was an area where lumber was sorted and stacked. That’s where Johnson’s body would be found.

A fellow guard discovered Johnson later that morning. He was lying face down, his head in a pool of blood. He was not wearing pants or shoes. The guard testified that as he rolled Johnson over, he found layers of Saran Wrap around his face. A medical examiner would later find that Johnson had died from blunt force trauma to his head.

By the time Johnson was taken to the hospital, two men were already in custody. One of them had been found wearing Johnson’s clothes: Eric Robert, serving an 80-year sentence for kidnapping. A corporal would later describe how — before anyone knew what had happened — he saw a guard he did not recognize approaching a prison entrance at around 10:30 a.m., pushing a handcart carrying boxes. He said he had forgotten his ID card. As the corporal asked for backup forms of identification, a second man, Berget, leaped from a box on the handcart. Both men began attacking the corporal. Another guard sent out an emergency alert. Robert tried to scale a fence to escape but realized he was trapped. He climbed down and shook hands with Berget. Both men then surrendered.

Although they were both serving serious sentences, Robert and Berget had lived very different lives before arriving in prison. Berget’s family background had the familiar hallmarks of many people who end up on death row — alcoholism, abuse, and early run-ins with the law. But Robert was a “model citizen,” according to one news article, a born leader who “put himself through college and had a successful career in wastewater treatment.” At Robert’s 2011 trial, his sister testified that he “took care of everything. He took out the trash, he made sure dinner was on the table, he even did grocery shopping.”

Berget was in many ways the opposite. He was slow for his age and struggled in school. Teachers would say he seemed a bit lost and tended to go along with the group. He followed his older brother, Roger, which got him into trouble. At 12 Berget was caught stealing donuts; at 15 he went to an adult prison for stealing a car. Later, Berget was briefly married to a woman who would later complain that he did little to contribute to their household and relied on her financially.

If their profiles would suggest that Robert was more likely to have come up with the plan to kill a guard and escape, this was never made clear at Berget’s trial. A different man would later admit to providing the metal pipe used to kill Johnson. But the roles of all three men remained murky. Addressing the third man in 2012, Minnehaha County Judge Bradley Zell observed that the full facts of the case would go to the grave with the co-defendants, while maintaining that “we do know what took place, at least to a certain extent. And some things, maybe it’s best we don’t know exactly all that happened.”

Eric Robert, center, and his defense lawyer, Mark Kadi, listen to Judge Brad Zell read the sentence for Robert's killing senior corrections officer Ronald "R.J." Johnson during a failed escape attempt in Sioux Falls, S.D., Thursday, Oct. 27, 2011. Robert was given the death penalty. (AP Photo/Argus Leader, Devin Wagner)

Eric Robert, center, and his defense lawyer, Mark Kadi, listen to Judge Bradley Zell read Robert’s sentence for the murder of Ronald Johnson.

Photo: Devin Wagner/The Argus Leader via AP

Nevertheless, it was clear that Robert saw himself as being at war with his keepers. At his trial, where he pleaded guilty to first-degree murder, he said he would have killed more guards if he had to. “Robert provided under oath that he attempted to bait a guard to get close enough to him during the end of his foiled escape attempt so he could grab his gun to continue killing,” Zell wrote in his sentencing order. “On April 12, it was a war to me,” Robert said. “It was the staff’s duty to ensure I stayed in prison for the rest of my life and it was my duty to defeat them.” In October 2011, Zell sentenced Robert to die.

The next month, Berget changed his plea from not guilty to guilty. He also waived his right to a jury trial, meaning Zell would hear all aggravating and mitigating evidence and then make a decision about his sentence. Defense attorney Jeff Larson repeatedly assured Zell that his client was not only competent, but smart enough to make such a choice. “Mr. Berget is very intelligent and quite competent,” he said. “We’ve had numerous long conversations about this matter.”

Larson, who is 63, was a veteran public defender in Minnehaha County when he first took the case. But about a month after Berget entered his guilty plea, Larson was suddenly fired. An article in the local paper said Larson “found his things piled up outside the door of the public defender office.” The office would not say why he was fired. Larson continued to represent Berget pro bono, with no mitigation expert.

It is possible that the judge would have sentenced Berget to die no matter what. As the trial began in January 2012, prosecutors pointed to Berget’s history of prison escapes dating back years and called witnesses whose harrowing testimony established several other aggravating factors, including the convictions that sent him to prison in the first place. An ex-girlfriend recounted how Berget showed up at her house and shot her boyfriend, then wounded her, too. Another woman testified that, on the same day, he took her hostage from the convenience store where she worked and raped her while driving 100 miles an hour on the highway. After a standoff with police, Berget was captured, convicted, and given two life sentences.

Finally, there was the heart-wrenching testimony from Johnson’s family. His daughter, a nurse anesthetist, was on duty at the hospital the morning her father was brought in. Johnson’s widow, Lynette, described how his murder shattered her. “He was my life,” she said. “We didn’t even go to the gas station without each other.”

Lynette Johnson, the wife of slain prison guard Ronald "R.J." Johnson, reacts as media witnesses describe to reporters the final moments of murderer Eric Robert, her husband's killer, on Monday, Oct. 15, 2012, in Sioux Falls, S.D. Robert and another inmate, Rodney Berget, killed Ron Johnson in April 2011 during a failed prison escape attempt. The Monday execution marked the first execution in five years and the second in more than half a century for the state. (AP Photo/Amber Hunt)

Lynette Johnson, wife of slain prison guard Ronald Johnson, reacts as media witnesses describe the final moments of Eric Robert, her husband’s killer, on Oct. 15, 2012, in Sioux Falls, S.D.

Photo: Amber Hunt/AP

In the face of such overwhelming evidence, Larson put on an astonishingly weak defense. Even if his client’s guilty plea meant it technically did not matter who struck the fatal blow, the question of culpability could still make the difference between life or death. Yet the case files reveal no effort by Larson to show that Berget might have been the less culpable party. He did not even cross-examine the prison guards who took the stand.

When it was time to present evidence for the defense, Larson called four witnesses whose testimony sometimes bolstered the state’s case. One was an associate warden who worked at the prison where Berget was incarcerated as a teenager, who described him as a flight risk. A different prison employee remembered thinking of Berget as “a throwaway kid,” but also “saw him as a fairly intelligent man.” A paralegal described his troubled upbringing but made no mention of the most serious mitigation evidence available in his file: evidence of intellectual disability that could have convinced the judge to spare his life.

At the end of the trial, Berget spoke on his own behalf. “All I have to say is that I’m guilty of taking Ronald Johnson’s life,” he said. He “destroyed a family” and would not beg the court to spare his life. “I believe I deserve the death penalty for what I’ve done.”

On February 6, 2012, the judge sentenced him to die.

Just a few days after Berget received his death sentence, his adult son, Travis, got in touch with his lawyer. The contact from his son came as a surprise to Berget, and he began calling him frequently. Larson had not previously reached out to Berget’s family. In fact, Larson wrote in his direct appeal that Berget “forbade defense counsel from engaging in a complete mitigation investigation or from calling his family to testify, stating, ‘one family in the courtroom going through that much pain is enough.’” It is not clear what exactly was behind this language, but it would prove self-sabotaging.

In 2013, the South Dakota Supreme Court remanded Berget’s case back to the trial court for re-sentencing. At a subsequent hearing, Larson tried in vain to convince the judge that he should be allowed to enter new mitigation evidence based on his client’s newfound relationship with his family. But the state pointed to Larson’s own words to persuade the judge to deny the motion. Berget was re-sentenced to die.

To experts who have reviewed the case, Larson’s conduct was unconscionable. In one of his most bewildering moves, Larson insisted he wanted to keep representing Berget in post-conviction, “a violation of professional ethics,” according to O’Brien. Ordinarily, a lawyer who represents a client at trial and then on direct appeal will be replaced by a different attorney, who can then bring forward any ineffective assistance of counsel claims. A lawyer can’t bring such a claim against himself — to do so would be an obvious conflict of interest. It was only when the state attorney general’s office raised alarm that the court appointed a new attorney, Schulte, to handle the ineffective assistance claim.

Both Larson and Schulte plan to attend Berget’s execution.

Among those who hold out hope that Berget will not die on Monday is Ed Korbel. Yackel tracked him down last year as one of the chaperones who took Berget to the Special Olympics as a young teacher in 1973. Korbel’s memories are fuzzy now. He remembers the kids marching in for the opening ceremony. “It was one of those hot, sunny spring days where our main concern was, oh my God, are these kids all going to get sunburned because we hadn’t thought to bring sunscreen along.”

Korbel does not remember what Berget competed in. But he remembers him as a student. He was “a very personable kid in those days,” he said, but “very low functioning.” When you live in a small town like Aberdeen, he said, you tend to know what’s going on around you, and he knew Berget lived in a rough household. “Coming from the family he had, I thought he presented himself fairly well,” he said. But later, “it all went to hell.”

Korbel took the stand at the Atkins hearing. To his surprise, Schulte did not ask him about the Special Olympics. He was disturbed by the outcome. “I just thought the Supreme Court outlawed the death penalty for people of diminished mental capacity,” Korbel said. In fact, even before the court handed down Atkins in 2002, South Dakota was one of the few states to pass legislation forbidding people with intellectual disabilities from being executed.

Today Korbel gets frustrated at the attitudes he encounters about Berget’s case. “People right away think you’re trying to say he’s not guilty,” he said. “We’re not saying that. He’s as guilty as sin. He was part of the escape process where a correctional officer was killed.” But that doesn’t mean Berget should be executed in violation of the Constitution, he said.

Korbel hopes Berget will reconsider volunteering to die. He even told Yackel that if Berget wanted him to be a witness to the execution, he would be willing. Perhaps the offer alone would stir something in Berget, he reasoned, make him think, “Maybe I should stick around for a while.” He can’t help but feel like Berget would not have ended up where he is had he grown up in a different place. “Sometimes you just wonder if you’re part of the guilt too,” he added. “Maybe you should’ve done more if you could’ve, that type of thing.” He thinks about the kids he works with now. “I don’t wanna see them as future Rodneys either.”

Top photo: Rodney Berget is escorted into Minnehaha County Court to face murder charges in Sioux Falls, S.D., on April 13, 2011.

The post Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. But Experts Say His Execution Would Violate the Law. appeared first on The Intercept.

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October 17, 2018

“Relic of Another Era”: Most People on North Carolina’s Death Ro...

In the summer of 2001, North Carolina executed 42-year-old Ronald Wayne Frye, convicted of stabbing and robbing his 70-year-old landlord in 1993. The crime was brutal and there was no question of his guilt. Yet the circumstances of Frye’s trial and conviction would come to shock members of the public — and even members of his own jury — as his execution approached. Two jurors came forward to say that they would not have sentenced Frye to death row had they known then what they had since learned.

Like many who end up on death row, Frye lived a life marked by severe abuse and trauma. This history was never investigated by his defense attorneys, despite the fact that it would have made for powerful mitigating evidence. “A background of neglect and abuse would have changed my decision and my vote,” one juror told the Hickory Daily Record weeks before Frye’s execution. Among the evidence the jury never heard was that Frye’s mother had given him and his brother away to a pair of strangers she met at a gas station when Frye was a young boy. The couple beat Frye and his brother with a bullwhip and forced the boys to beat each other as well.

Frye was reluctant to share this history with his court-appointed lawyers. “I didn’t want my family involved,” he told one reporter. “I felt like I had shamed them enough already.” A competent capital defense attorney would have navigated this challenge to save a client’s life. Instead, Frye was represented by a man named Tom Portwood, a dentist-turned-attorney who had a severe drinking problem. His alcoholism would force him to stop practicing just a few years later. Portwood all but abandoned his client, later admitting that he did no work on Frye’s case outside the courtroom. Portwood’s co-counsel did not speak up until two weeks before Frye’s scheduled execution, writing in a sworn statement that he “chose to believe the best about my friend for as long as I could.”

North Carolina’s legal community was moved to action by Frye’s looming execution. “For the first time in its 35-year history, the 4,000-member N.C. Academy of Trial Lawyers asked for clemency for a death-row prisoner,” the Raleigh News and Observer reported in August 2001. If the governor allowed the execution to go forward, the group’s president said, “The right to counsel has lost its meaning in this state.” Nonetheless, on August 31, 2001, Frye died by lethal injection.

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Ronald Frye, executed in North Carolina in 2001.

Photo: Courtesy of the Center for Death Penalty Litigation

Frye’s execution came at a flashpoint for capital punishment across the country. In the late 1990s, the American Bar Association had recommended a national moratorium on the death penalty, citing unfair trials, racism, and wrongful convictions as pervasive problems. In North Carolina, activists, lawyers, and lawmakers took up the cause; in 2000, a legislative commission recommended a moratorium on executions in the state. A few months before Frye’s execution, a major study examining data from 1993 through 1997 found new evidence of racism in North Carolina’s death penalty system.

It was in this same era that the North Carolina legislature passed the first in a series of hard-fought reforms to the state’s death penalty system. Among them was the establishment of Indigent Defense Services, a state office that coordinates the representation of people facing the death penalty. Opened in July 2001, it imposed standards to ensure that cases were assigned to competent lawyers who received decent compensation — too late for defendants like Frye, but to the benefit of scores of defendants in the years to come.

The majority of people on death row were tried in a system that was effectively rigged against them.

The overhaul of indigent defense was a game-changer in North Carolina. But it was its combined effect with other systemwide reforms that would transform the landscape of capital cases in the state. This evolution is at the heart of a new report by the Durham-based Center for Death Penalty Litigation. Titled “Unequal Justice: How obsolete laws and unfair trials created North Carolina’s outsized death row,” it reveals how the majority of people on death row were tried in a system that was effectively rigged against them. Of the 142 men and women facing execution in North Carolina, more than 100 — 73 percent — were sentenced before the creation of the indigent defense office. The majority were also convicted prior to laws that prohibit the execution of people with mental disabilities; impose protections against wrongful convictions; and require prosecutors to share evidence against defendants before trial.

The CDPL report shows how the implementation of such reforms has led to a precipitous drop in death sentences. “The death penalty is all but extinct in North Carolina,” the authors write. “Juries have recommended only a single new death sentence in the past four years. Capital trials have become rare. The state hasn’t carried out an execution since 2006.” Although North Carolina’s death row is still among the largest in the country, it “is a relic of another era.”

In Catawba County, where Portwood once practiced, no one has been sentenced to death for 20 years. Yet his legacy lives on. In 2012, the state settled a federal civil rights lawsuit brought by Glen Edward Chapman, sentenced to die in 1994 for a double murder he insisted he did not commit. Represented by Portwood, Chapman spent years on death row before a Superior Court judge overturned his conviction and ordered a new trial. He was exonerated in 2008. Another one of Portwood’s former clients, Nathan Bowie, remains on death row. Bowie was 20 years old when he was tried alongside his uncle for a double murder in 1993. Today he is 47.

Bowie is one of a handful of condemned men profiled in detail in the report, which describes his case as “emblematic of capital defense at the time.” Portwood was appointed to represent him despite his well-known drinking problem and assisted by a lawyer with no experience in capital defense. Bowie remembers Portwood showing up to one of their first meetings smelling like alcohol. In the time he represented Bowie, the report notes, Portwood was involved in a car crash and found to have a blood alcohol level sufficient to kill him.

A video on the case of Nathan Bowie featured in the CDPL report.

Perhaps not surprisingly, Portwood and his co-counsel did little investigation into Bowie’s background. As a child, Bowie had experienced poverty, abuse, and bouts of homelessness; he was removed from his home when he was 12 and placed in the custody of the Department of Social Services. At 13, he was sent to Sipe’s Orchard Home, a facility for troubled youths, where he stayed until he was 19. Portwood did not review the records or interview staff from the facility. If he had, he would have discovered evidence of sexual abuse that occurred at Sipe’s, where Bowie kept a stick in his possession that he called his “protector.”

Portwood’s failures were compounded by the conduct of the prosecutor in Bowie’s case, Jason Parker. “His office had prosecuted a Sipe’s staffer for molesting boys there,” the report reveals, yet Parker cast the facility as a wholesome environment before the jury. Arguing for the death penalty, he also emphasized that no one from the facility had appeared at trial on Bowie’s behalf. Yet Parker had actually received a letter from the head of the facility offering to testify on Bowie’s behalf, which he never disclosed to defense.

Parker is now retired. In total, he sent seven people to death row, including Frye and Chapman, the two other people represented by Portwood. Parker said he never saw evidence that Portwood was drunk on the job in the years he tried cases against him. “Everybody knew he would take a drink here and there,” Parker said, “but as far as coming to court drunk, alcohol on his breath, never saw it.” Parker’s personal feelings about the death penalty have not changed, he said. “In certain horrific cases, the death penalty is highly justified.” Nevertheless, he says he would no longer seek death sentences if he were still working as a prosecutor today. “My reason is simple,” he said. “In reality the death penalty does not exist in North Carolina.”

Parker explained that of all people he sent to death row, only one — Frye — has been executed. One man killed himself. Another two died of natural causes. The remaining men — Bowie and his uncle — “have outlived the son of my co-counsel who was born during their trial” and died in a car accident at 24. “My position would be: Why waste my time?”

“Zombie Cases”

More than 40 years since the start of the so-called modern death penalty era in the United States, it has become widely understood that most people sentenced to death are more likely to die awaiting execution than on the gurney. In California, home to the country’s biggest death row population, the last execution was carried out in 2006; only 13 people have been executed since the 1970s. Those who do live to see the death chamber have often spent decades on death row.

The result is what Stephen Bright, founder of the Southern Center for Human Rights, has described as “this very strange situation now, in which these people sentenced to death a long time ago” are coming up for execution in cases that would be highly unlikely to lead to a death sentence today. Bright called them “zombie cases” — convictions that “remind us of just how unfair” the system used to be.

In Georgia, Kenneth Fults was executed in 2016 despite revelations that one of his jurors harbored racist animus against him, telling an investigator, “Once he pled guilty, I knew I would vote for the death penalty because that’s what that nigger deserved.” Veteran death penalty lawyer Thomas Maher, who heads Indigent Defense Services, has written about this disconnect in North Carolina. “The question, then, that policymakers and courts should confront is this: Should we execute scores of inmates for crimes that would not warrant the death penalty if they were tried today?”

Gretchen Engel, director of CDPL, explains that the report was published to “ignite a conversation” about this question. “It speaks to a need for there to be some kind of mechanism that will account for our evolving standard of decency,” she said. Given that most of North Carolina’s death row population would likely not be sentenced to die today, “it’s very hard to justify how we can execute them now.”

QJones-Painting-Engel-1539698288

Gretchen Engel holds a painting by Quentin Jones, a client of hers who was executed.

Photo: Courtesy of CDPL

Engel joined CDPL soon after graduating law school in 1992. “I think when I arrived there were maybe 75 people on the row” in North Carolina, she said. But the 1990s became “just a very bloody, frenzied time.” By the end of the decade, there were more than 175 people on death row.

Part of what drove the surge in capital prosecutions were overzealous prosecutors like Ken Honeycutt, who “celebrated new death sentences by handing out noose lapel pins to his assistant DAs,” as the CDPL report notes. Particularly notorious was Joe Freeman Britt in Robeson County, who attracted national media attention and even a listing in the Guinness World Records as the “world’s deadliest DA.” Britt sent some 38 people to death row over his 14-year tenure. Among them were two teenagers, Henry McCollum and Leon Brown, who were famously exonerated of murder and rape in 2014.

The impact of overzealous prosecutors has been well-documented where capital punishment is concerned. But in North Carolina, the phenomenon was compounded by a perverse, lesser-known feature of the state’s death penalty system. One of the more startling areas of the CDPL report is a section that explains how prosecutors were essentially coerced into seeking death sentences as often as possible. “In the 1990s, N.C. was the only state that required prosecutors to seek the death penalty for every aggravated first-degree murder,” the report explains, “regardless of other factors that called for mercy.”

Rooted in years of rulings by the state Supreme Court, the sentencing scheme was originally intended to ensure uniformity in the application of the death penalty. But in practice, it curtailed prosecutorial discretion to an absurd degree. Prosecutors were forbidden from arranging plea deals in which a defendant could plead guilty to first-degree murder in exchange for a life sentence. Instead, their only alternative was to reduce a charge to second-degree murder.

In 1993, the year Bowie was tried, 33 people were sent to death row in the state.

Parker began handling capital cases in Catawba County in 1990. He recalls seeking the death penalty in numerous cases that he would not have tried capitally had they come later in his career. In the case of Nathan Bowie, Parker actually offered a plea deal for second-degree murder. “That wasn’t the world’s greatest case,” he explains. The witnesses were unreliable — the kinds of people who say one thing in a meeting, then “go out on the stands and they say something entirely different.” But Bowie and his uncle rejected the deal. “So I didn’t have any choice but to try them for the death penalty. Once they turn down that second degree, it was on.”

Alex Charns, Bowie’s current attorney, counters that in fact, Parker did have a choice in Bowie’s case. “It could have been tried as second degree,” he says, adding that most prosecutors would not be inclined to do that. Bowie’s fate speaks to the utter neglect of Portwood in representing his client at every stage of his case, Charns says. But it is also illustrative of a phenomenon known as a “trial penalty,” in which prosecutors come down especially hard on defendants who refuse their plea offers. The notion that a crime could merit a charge of second-degree murder in one minute and a death sentence the next is also emblematic of the arbitrariness so often described by critics of capital punishment.

The lack of prosecutorial discretion in first-degree murder cases was “perhaps the biggest driver of a decade of excessive death sentences” in the state, the CDPL report says. It “propelled North Carolina to one of the highest death sentencing rates in the nation.” In 1993, the year Bowie was tried, 33 people were sent to death row in the state.

In 2001, the North Carolina legislature finally passed a law to address the problem of prosecutorial discretion. “Some DAs were having to try capital cases that they really didn’t want to try,” remembers Rep. Phil Baddour, a Democrat from Wayne County who sponsored the bill. “It went through without a lot of opposition.”

To Engel, it made sense that prosecutors would not oppose the new law. “It increased their power and so they didn’t fight it. I think that’s why it was really probably the least controversial of the reforms.” What she and her colleagues did not necessarily expect was just how dramatic a change would follow. Death penalty prosecutions “plummeted,” from an average of 50 per year in the 1990s to roughly 16 capital trials per year in the decade following the 2001 law.

The drop was no doubt due to prosecutors like Parker, for whom the death penalty became an easy way to force a defendant to plead guilty in exchange for life. “Most of the cases I tried for the death penalty after the law changed were those who rejected the plea offer taking the death penalty off the table.” Still, defendants were inclined to take the deal, he said. “Once you prove that you could put somebody on death row, it was a heck of a tool.”

A Legacy of Racial Violence

“I think if you polled district attorneys, they would all say, ‘Oh yes, the death penalty is very necessary,’” Engel says. But their actions betray the truth. Prosecutors are seeking fewer death sentences and are more willing to accept a plea to a life sentence, she points out. Indeed, as Parker recalls, after the law changed, “I made that offer available in the great majority of first-degree murder cases.”

Engel sees something similar among the general public, which seems to favor the death penalty more in theory than reality. “I think while public support for the death penalty in North Carolina has fallen just like it has nationally, you’d still have a fairly large number of people who would say, ‘Yes, of course, we should execute the worst of the worst.’” Yet “jurors are not returning death sentences, even in really horrendous cases.”

Nevertheless, the stubborn devotion to North Carolina’s death penalty has been on dramatic display for much of the past decade, in the ugly battle over the state’s Racial Justice Act. Passed in 2009, the groundbreaking law provided a way for condemned people to fight their sentences if they could prove that racism played a role in jury selection at their trials.

Four people on death row succeeded in getting their sentences commuted to life without parole before the Republican-led legislature repealed the RJA in 2013. Two years later, the North Carolina Supreme Court vacated the judge’s rulings, sending the four defendants back to death row. It was up to Engel and her office to share the wrenching news. By then, a couple of them had gone to medium custody, she recalls. One, Christina Walters, had completed her GED. “The impact on the families of those clients — to think your [child] is spared from execution and then three years later, oh no, you’re back on death row — it was devastating.”

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Nathan Bowie, left, with his father in Philadelphia circa 1989.

Photo: Courtesy of the Bowie family/CDPL

Nathan Bowie was among those who sought relief under the RJA before its repeal. In a 2012 filing, Charns, his lawyer, details the history of racial violence in Catawba County and the surrounding area. In 1919, the filing noted, a black man named Tom Gwyn died in the electric chair for raping a white girl despite the efforts of a mob that tried to lynch him first. He was still awaiting trial when a local newspaper declared the guilt of the “brute” with “beast-like hands.” An all-white jury convicted him in 10 minutes.

Racism permeated the prosecution of black men in rape cases into the 1970s, Charns points out. In the late 1980s and early 1990s, a group called North Carolinians Against Racist and Religious Violence tracked racial intimidation by the Ku Klux Klan in Catawba County. By the time Bowie went to trial before an almost all-white jury in 1993, the county had a black population of less than 9 percent. Parker, who is black himself, appealed to the racist fears and biases of the jury in court. Although there was no evidence that the crimes had anything to do with gang rivalry, Parker attributed the murders to a gang war, invoking Philadelphia, where Bowie came from, and contrasting it with the town of Hickory — “your community.”

Parker demurred when asked about evidence of racism in North Carolina’s death penalty system. And he was dismissive of Bowie’s RJA motion. “All I can say is … you had a black guy trying two black guys for killing two black people,” he said. “So if that’s injustice, fine. You know? I don’t see it.”

The evidence of systemic racism contained in Bowie’s RJA filing — and the aggressive denial that such a thing exists — underscores the broader thesis underlying the CDPL report. It’s not just that North Carolina’s death sentences are a relic dating back to the bad laws of the 1990s. Its death penalty system is inextricable from a history of racial violence rooted in slavery and reconstruction. As in the rest of the South, the same kind of fearmongering propaganda once used to defend lynchings would support state-sanctioned executions, particularly as punishment for rape against white women. The bloodlust extended all across the state; in 1922, 16-year-old McIver Burnett — “convicted in three minutes and 30 seconds,” according to the Daily Free Press — was executed for rape in Raleigh amid a crowd of spectators holding tickets to the execution, a mob dominated by “youths wearing the red caps that distinguish State College freshmen,” according to the News and Observer.

Evidence of enduring racism in capital cases helped pave the way for the landmark 1972 Supreme Court ruling in Furman v. Georgia. The plurality decision held that the death penalty was arbitrarily and thus unfairly imposed. Some death penalty states responded to Furman by crafting new statutes that would provide for bifurcated trials with a penalty phase to weigh aggravating and mitigating evidence — the system widely in place today. But others decided that the solution was to make the death penalty mandatory for crimes like murder and rape. The first to do so was North Carolina.

Joan Little and one of her defense attorneys, Kern Galloway, right, wait for an elevator in the lobby of the Wake County Courthouse in Raleigh, N.C., July 14, 1975, where she is on trial in the 1974 stabbing death of a jailer. (AP Photo/Harold Valentine)

Joan Little, left, and defense attorney Kern Galloway in the lobby of the Wake County Courthouse in Raleigh, N.C., on July 14, 1975.

Photo: Harold Valentine/AP

One of the first people to face North Carolina’s mandatory death penalty was a black woman named Joan Little. The 20-year-old had been charged with first-degree murder after stabbing a white guard to death with an ice pick while being held at the Beaufort County Jail in 1974. She said she had killed the man to stop him from raping her — his body was found naked from the waist down in her cell, with seminal fluid on his leg. Nevertheless, Little faced a mandatory death sentence if she was convicted.

As Little’s trial approached, the case became a cause célèbre — a symbol of the South’s deep-rooted racism and the largely unspoken sexual abuse of black women by white men dating back generations. In 1975, amid demonstrations, a jury acquitted Little. The next year, in Woodson v. North Carolina, the U.S. Supreme Court struck down the state’s mandatory sentencing scheme.

For Jennie Lancaster, one of the jurors in the case, the Little trial would indelibly shape her perspective on the criminal justice system. As a 25-year-old counselor at a juvenile prison facility in Raleigh, “I had this almost idealistic view of what you could accomplish” within prisons, she recalls. After the Little trial, she went on to become warden of the state’s women’s prison and eventually the Central Region director in the North Carolina Division of Prisons, where she supervised 12 facilities, including the prison in Raleigh that houses death row.

“Racism and sexism. That was prevalent in the whole judicial process within deep eastern North Carolina.”

Among Lancaster’s early responsibilities was presiding over the 1984 execution of Velma Barfield, a white woman convicted and sentenced to die for poisoning four people. As her execution date approached, the case of the “death row granny” became a media circus and political lightning rod; the state set the execution date just days before a major election for Senate. Democratic North Carolina Gov. James Hunt faced incumbent Sen. Jesse Helms. Hunt, who would go on to lose, denied Barfield’s pleas for clemency.

“I got to know Velma,” Lancaster says. “I got to know her family. I got to know what a positive influence she was” at the prison. She also saw the additional ways in which women behind bars were abused and dehumanized. Lancaster recalls having to fight with prison administrators to allow Barfield to wear a bra during her execution. “She was a big-breasted woman and she asked me, ‘Miss Lancaster, if I’ve got to go through this, I would like to have the dignity of wearing a bra.’”

The Barfield execution would eclipse the Little case in North Carolina’s death penalty history. But it was the latter that opened Lancaster’s eyes. “The system was on trial,” she said. “And our role in the criminal justice system was really on trial.” While she was proud at the outcome, the case was only her first look at the rampant abuse within prisons. “It ingrained a stronger sense of responsibility within me, about how we should be caretakers. And how we should not allow, if we’re in a supervisory role, the taking advantage of offenders who are under our care.”

“And also, the amount of racism,” Lancaster added. “Racism and sexism. That was prevalent in the whole judicial process within deep eastern North Carolina.”

Out of Sight, Out of Mind

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Jennie Lancaster, who served as chief deputy secretary for adult correction in North Carolina.

Photo: North Carolina Department of Public Safety

Today Lancaster is an outspoken critic of the death penalty — and especially of its impact on prison staff. “There’s no training for it,” she says about the psychological and emotional effects of executions. For the public, “executions are out of sight, out of mind,” Lancaster says. People don’t want to deal with it — “they just want it to be over with.” But people who work in the system “can’t go home and talk about it. We can’t talk about it anywhere. We can’t really even talk about it at the prison.” Over the course of her career, Lancaster attended 24 executions.

Parker, the former prosecutor, did not attend the execution of Ronald Frye in 2001. “I gave my ticket to the arresting officer,” he said. He had developed a certain level of affection for Frye by then. “I thought he has what’s coming to him, but I wasn’t gonna go watch him die.”

I asked Parker if he would feel satisfied if Nathan Bowie were to be executed today, 25 years after he was convicted. Would he consider it justice? Parker paused. “I really haven’t given it much thought,” he said, adding, “I did my job.” He doesn’t miss it. He’s happily retired, playing golf a few times a week, he told me. “I don’t think about it much anymore. I leave it alone.”

Top photo: The execution chamber at Central Prison in Raleigh, N.C., on Nov. 30, 2005.

The post “Relic of Another Era”: Most People on North Carolina’s Death Row Would Not Be Sentenced to Die Today appeared first on The Intercept.

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October 5, 2018

Junk Arson Science Sent Claude Garrett to Prison for Murder 25 Years A...

On a Monday morning in late September, I arrived at a house in a gated subdivision in Alabama and asked for James F. Cooper, a retired agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. A tall, sturdy man in his 70s came to the door a few minutes later. His white hair was in a slightly overgrown crew cut; he wore athletic clothes and navy blue Crocs. “What can I do for you?” he asked, stepping outside.

I wanted to talk about an old arson case he investigated in 1992: a fatal fire at a small, one-story house in Old Hickory, Tennessee, just outside Nashville. A 24-year-old woman named Lorie Lee Lance had died in the blaze. Her boyfriend, Claude Francis Garrett, was arrested for setting the fire. He swore he was innocent. But two separate juries convicted Garrett of murder, first in 1993 and then again in 2003. Cooper was the star witness for the state.

Cooper recalled the case. He also remembered my previous attempts to reach him about it, for a story I published in 2015. The case was fairly unusual, Cooper said. As a federal agent, he did not generally work local arson cases, but he’d been called by the Nashville Metro Police Department about a suspected homicide early in the morning. It was February 24, 1992. Cooper could still describe the scene, along with most of the story told by Garrett: After a night of drinking with Lance and her stepfather at a local bar, he had awoken to the house on fire. Garrett yelled for Lance and ran with her toward the front door, he said, but she turned back toward a room at the other end of the house, where she was later found dead from smoke inhalation.

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Claude Francis Garrett and Lorie Lee Lance.

Photo: Courtesy of Claude Francis Garrett

The first clue that it was arson came from Fire Marshal investigator Kenneth Porter, who noticed a strong smell of kerosene upon entering the house. Shortly afterward, he found a large kerosene container. Garrett would say the couple used a kerosene heater, a common practice in the working-class neighborhood of Hopewell. But Porter’s suspicion deepened when he found large, irregular-shaped burns on the living room floor — a “pour pattern,” as Cooper would later explain on the stand. It was a telltale sign of the use of a liquid accelerant, he said, and a hallmark of arson scenes. After Cooper took over the investigation, he found additional clues that proved it was a murder. Most damning: The door to the room where Lance was found had reportedly been locked from the outside — “that was key,” Cooper told me.

At trial in 1993, Cooper gave expert testimony to bolster the state’s theory against Garrett: that he was an abusive boyfriend who locked Lance in the back room, poured kerosene throughout the house, lit it on fire, and left her to die. The jury found him guilty and sent him to prison for life. But it would not take long for doubts to emerge. Garrett’s original conviction was overturned when he discovered that the trial prosecutor had concealed a police report in which a key witness said the back-room door had been unlocked.

The investigation into the fire was looking increasingly like a relic from another age.

More significantly, in the decade between the first trial and the retrial, the field of fire investigation had radically transformed. Old assumptions about arson and fire behavior were debunked and new investigative methods were adopted. The so-called pour patterns found at the scene would come to be regarded as junk science. By the time of Garrett’s 2003 retrial, the investigation into the fire was looking increasingly like a relic from another age, resting on techniques that had long been discarded. Nevertheless, Cooper defended his findings on the stand and the jury sent Garrett back to prison.

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The one-story house in Old Hickory, Tenn., after the fire.

Photo: Courtesy of the family

My own understanding of the evolution of fire investigation came partly from Cooper’s division of the ATF. When I visited the Nashville field office in 2014, agents helpfully explained the modern approach to potential arson crimes, based on the scientific method and ongoing research into fire behavior. It seemed clear that the ATF was on the cutting edge of fire investigation. But this only made Garrett’s conviction more vexing — and his cries of innocence more compelling. Given that the investigation into the fire was rooted in old practices and theories, shouldn’t someone be giving his case a second look?

Cooper did not wish to revisit the case when I first sought to interview him in 2014. Neither did the two prosecutors who tried Garrett, although both were at least willing to briefly discuss the case. One of them — Jon Seaborg, who handled the retrial — acknowledged the challenge of outdated forensics. “As the science changes somebody needs to pay attention to it,” he said, adding “I don’t know how you do that.”

Regardless, Cooper was the person I had been most anxious to reach. Although he retired before the 2003 retrial, it was unfathomable that he would have remained unaware of the sea change in fire investigation since 1992. Yet he had repeatedly rebuffed my attempts to speak to him, even rejecting a list of questions sent via a colleague at the ATF. Now, as we spoke on his doorstep in Alabama, I repeatedly offered him an envelope containing a pair of scientific reports on the fire in Old Hickory. Written in 2016 by a group of renowned fire scientists who had reviewed Cooper’s investigation, the reports were firm in their conclusions: There was no evidence to support a determination of arson in Garrett’s case. “The central piece of evidence of the use of an accelerant is now recognized as a myth,” one of the authors explained. “A modern fire investigator would not find that this fire was incendiary.”

Cooper did not want the envelope. “I stand by my report,” he told me. He did not appreciate other experts second-guessing his work — especially people who had not worked the scene themselves. “My rule of thumb is ‘Were you there?’” he said. It echoed Cooper’s testimony during cross-examination in 2003. “If I’m proven wrong, I will admit I am wrong,” he said. “But on this one, no sir. I was there. I saw it with my eyes.”

Convictions Stuck in Time

In the 3 1/2 years since I first wrote about Garrett’s case, several people have been exonerated in old arson cases. Their cases are included in the National Registry of Exonerations, which tracks cases involving false or misleading forensic evidence. William Amor was acquitted in an Illinois retrial earlier this year, more than two decades after being convicted of killing his mother-in-law in a 1995 fire. Adam Gray was exonerated in 2017 for setting a fire that killed his upstairs neighbors in Chicago in 1993. And Herbert Landry was exonerated last year of trying to burn down his apartment complex in 2006; investigators found “pour patterns” like those at the scene in Garrett’s case. Other arson defendants have had their convictions overturned or reduced without being declared innocent. They are not included in the registry, making a tally hard to come by. Among them is Leticia Smallwood, who was finally released in Pennsylvania this year, after more than four decades in prison on dubious arson charges.

Despite the inescapable reality that flawed fire investigation methods once sent innocent people to prison, most states have taken no systematic steps to revisit old arson cases. A more common response has been to sweep wrongful convictions under the rug. In the case of Angela Garcia, which I wrote about in 2017, the Cuyahoga County Prosecutor’s Office spent months delaying an evidentiary hearing that would likely have dismantled their case against her, only to suddenly offer her a deal if she pleaded guilty right then and there. Despite swearing her innocence for the fire that killed her two daughters, Garcia tearfully took the deal. She is slated for release in 2022.

Now Garrett, too, has a shot at release. This year marked his 25th in prison, making him eligible for a parole hearing. On October 8, he will go before the Tennessee Board of Parole at Riverbend Maximum Security Institution in Nashville. In theory, he has a decent chance: Garrett has been what is often described as a “model inmate,” with a clean disciplinary record and a long list of people willing to vouch for his character. But such things can only take Garrett so far. In Tennessee, as in most states, parole hearings are often little more than a referendum on the original offense, no matter how much a person may have changed behind bars. For those who insist upon their innocence, there’s another dilemma: the expectation that there be a display of remorse for their crime.

Garrett has always said he will not apologize for a crime he did not commit. But forcefully invoking his innocence before the board could backfire.

Garrett has always said he will not apologize for a crime he did not commit. But forcefully invoking his innocence before the board could backfire. A safer route would be to rely on the numerous letters sent on his behalf, which argue that Garrett is a worthy candidate for release who has served his minimum sentence and deserves a chance to thrive on the outside. Still, he wants the parole board to understand the injustice of his case. Among the people Garrett has asked to speak at the hearing will be one of his most passionate advocates, Stuart Bayne, a veteran fire investigator based in East Tennessee. Bayne was the defense expert at Garrett’s 2003 retrial. For him, the hearing is a chance to correct an egregious wrong that has plagued him for over 15 years. In his letter to the parole board, Bayne called Garrett’s case “a classic example of injustice.”

“Tremendous advances in the understanding of fire behavior have occurred since 1992,” Bayne explained. Enclosed with his letter were seven flash drives, one for each member on the board. They contained his own reports on the case, a statement from Garrett, and the pair of expert reports I tried to show to Cooper at his house. If anyone is in a position to take them seriously now, it’s the board. “Please, please Mr. Chairman, distribute one to each member,” Bayne wrote. “Please, please, review the files.”

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Stuart Bayne, a veteran fire investigator, photographed at a home he was inspecting in 2015.

Photo: Tamara Reynolds for The Intercept

“Seeking Justice Through Fire Science”

From the moment I began looking into the Garrett case in 2013, it was impossible to miss the parallels to a more famous case — that of Cameron Todd Willingham, executed in Texas in 2004. The fires in their respective cases had occurred just two months apart — and both men were convicted largely on circumstantial evidence. In both cases, neighbors who initially described panicked behavior at the scene would later come to believe that it was just a larger deception. But most compelling was the fact that the evidence in both cases included “pour patterns” that had been disastrously misinterpreted.

I knew from Willingham’s case that burn marks once associated with arson could actually be the result of a long-misunderstood phenomenon called “flashover” — a transition phase during which a room’s contents simultaneously ignite. The physical evidence left by a “post-flashover fire” includes burn marks and patterns that form depending on factors like oxygen and ventilation, but which were once believed to be evidence of an ignitable liquid. After meeting Bayne in 2013, he gave me repeated lessons in such fire scenarios. At one meeting, he had me watch a clip from a short film by the National Fire Protection Administration called “Countdown to Disaster.” It showed how quickly and dramatically something like a smoldering cigarette dropped on an upholstered chair could lead to a conflagration. It also illustrated his own theory of how the fire in Garrett’s case started — a cigarette left unattended on a loveseat in the living room after a night of drinking.

** ADVANCE FOR SUNDAY SEPT. 27 ** FILE - In this Tuesday, May 2, 2006  file photo, Judy Cavnar, of Ardmore, Okla., a cousin of executed Texas prison inmate Cameron Todd Willingham, displays a picture of him during a news conference in Austin, Texas. Willingham always maintained he was innocent of setting the fire that killed his three small children two days before Christmas in 1991, and even the prosecutor who put him away now admits the arson investigation was "undeniably flawed." Says Innocence Project director Barry Scheck of Willingham: "There can no longer be any doubt that an innocent person has been executed  (AP Photo/Harry Cabluck, file)

Judy Cavnar, a cousin of Cameron Todd Willingham, who was executed in 2004, holds up a picture of him during a news conference in Austin, Texas, on May 2, 2006.

Photo: Harry Cabluck/AP

There was an additional link between Garrett’s case and that of Willingham: a leading fire scientist named Gerald Hurst, renowned in Texas for his work on arson cases — and most famous for trying to intervene before Willingham was executed. Garrett had written to Hurst before his 2003 retrial. Hurst offered to testify on Garrett’s behalf pro bono, but Garrett’s attorney hired Bayne instead. When I interviewed Hurst at his Austin home in 2014, he remembered it well. “It’s a case in which the investigation was a typical piece of crap,” he said.

Like Willingham’s case, the fire in Old Hickory had occurred at a moment when fire investigation was on the cusp of a revolution. In 1992, the National Fire Protection Administration published “NFPA 921,” which set forth a new set of guidelines for fire investigators, applying the scientific method to fire scenes rather than relying on investigators’ observations and experience. At first, “nobody accepted it,” Hurst said. Instead, professional fire investigators spent the next several years looking for ways to get around it. If Garrett’s 1993 trial was too early for the teachings of “NFPA 921” to have been absorbed, by 2003, they were more firmly established. Cooper would have known about them by then — “if he wanted to know,” Hurst said.

“It’s a case in which the investigation was a typical piece of crap.”

Hurst’s own foray into criminal cases came in the mid-1990s, when he testified in the trial of a woman named Sonia Cacy. She had been convicted of murdering her uncle in a fire and was facing a retrial. Like Bayne in Garrett’s case, Hurst was unable to sway the jury, and he was scarred by the outcome. “I had to get her out,” Hurst said. When Cacy went up for parole, Hurst gave a presentation to show that the fire scenario had been impossible. The parole board granted her parole and she was released, although it would take another 20 years for her to be exonerated.

Cacy’s case was highly publicized. But it was the Willingham case that broke into mainstream consciousness, Hurst said. “Every fire investigator in the country knows Willingham didn’t do it. Everyone,” he told me. It helped attract new fire experts to his cause, including chemists and engineers — a rarity among fire investigators, most of whom come from firefighting or law enforcement backgrounds. It also helped shift the perception of defense experts in arson cases, who were generally dismissed as “high-priced defense whores,” according to Hurst. “It was an unsavory sort of profession. How dare you work against the noble police? The noble fire marshals? The noble ATF?”

Hurst passed away just a few weeks after The Intercept published my story about Garrett. By then, the article had reached a group of experts who review old fire cases pro bono. They convened remotely under the banner of the Tetrahedron Committee, a loose consortium of fire scientists and veteran investigators started in 2007. The title is a reference to the four factors that combine to generate fire: fuel, heat, oxygen, and a chemical reaction. The committee’s motto is “Seeking Justice Through Fire Science.”

In April 2016, Craig Beyler, a respected Maryland-based fire engineer — and the author of a famed report on the Willingham case — produced an assessment of Garrett’s case on behalf of the Tetrahedron Committee. It echoed what Bayne had explained to me over and over again beginning in 2013: The investigation had been fatally flawed. The house was filled with furniture, paneling, and materials that were critical to explaining how the fire started and spread. Yet Porter, the fire marshal investigator who was first on the scene, did not bother to note this evidence. “As was common in the day, he simply removed all the contents of the room and hosed out the room to display the floor damage pattern,” Beyler wrote. “He treated the remains of the room contents as an obstruction to viewing the floor, rather than as evidence to be studied. All the contents were simply thrown out into the yard.”

The same month, a renowned fire scientist named John Lentini submitted an affidavit to Garrett’s federal public defender. Lentini drew from the history he lays out in his textbook, “Scientific Protocols for Fire Investigation,” to show how Cooper was emblematic of the initial resistance to “NFPA 921.” Though there had been a marked shift around 2000, “when this case was tried in 2003, some fire investigators, including Agent Cooper, still believed that by looking at the shape and texture of burning on the floor, they could infer the presence of ignitable liquids, even if subsequent laboratory analysis failed to reveal the presence of any such residues,” Lentini explained. Indeed, while “Cooper repeated the phrase ‘pour pattern’ over and over in his testimony,” no kerosene residue had been found in the flooring samples.

Lentini’s affidavit also contained evidence that was a revelation to Garrett — and which he believes should exonerate him once and for all. In 2013, researchers published a study called “Forensic Analysis of Ignitable Liquid Fuel Fires in Buildings,” sponsored by the National Institute of Justice. “What they learned is that ignitable liquids only burn for a very short time in fires, and do not cause the kind of charring found on the floor in the Garrett residence,” Lentini wrote. The photos from the scene showed the charring to be too deep, Lentini explained. In other words, it “could not have been caused by an ignitable liquid. Agent Cooper’s testimony on this point was scientifically unsupportable and erroneous.”

Tunnel Vision

As I listened to Cooper’s recollections of the fire in Garrett’s case, I was struck by his remarks about pour patterns, which sounded far less cavalier than what I recalled from the trial transepts. On the stand in 1993, Cooper had not only insisted that the marks were proof of a liquid accelerant, he had also claimed to be able to tell the difference between a deliberate pour and a spill. Now Cooper explained the need for caution. He recalled a different fire scene where he discovered what he believed to be pour patterns, only to be told by a forensic chemist that the marks were the result of a varnish that had been applied to the floor. Regardless, Cooper remained confident about the ones in the Garrett case. “I don’t make my determination by one thing, like pour patterns,” he told me. He looked at the totality of the evidence.

Cooper retained a trait that is a trademark of certain old-school fire investigators: a deep belief in his own instincts. “Can you tell from looking at a house where a fire started?” he asked me. No, I said. “See, I can,” he responded. “I have the advantage.” In reality, determining a fire’s point of origin requires far more than visual analysis. But as with any expert witness, the credentials of an ATF agent can impress a jury no matter how flawed their testimony. In the Angela Garcia case, Cleveland prosecutors struggled to win a conviction — her first two trials ended in hung juries — until they bulked up their witness list at her third trial, adding an ATF agent who insisted he could see a pour pattern in a photograph. “I don’t care what the NFPA says.”

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The area just inside the front door of the house in Old Hickory, Tenn.

Photo: Courtesy of the family

Such witnesses supported what Hurst told me about the ATF’s old role investigating local fires: that they were not brought in to provide their independent assessment of a fire scene so much as to make the state’s case. One of Garcia’s defense experts explained why this was so dangerous. Even if an ATF agent was “as honest a human being as exists on the face of the earth,” he said, “you’ve got this huge confirmation bias coming in.” Indeed, while Cooper handled the scene in Garrett’s case firsthand, he was called only after Porter believed that arson had been committed. “They immediately called those burns pour patterns,” Hurst said. “They immediately called the kerosene they found an accelerant. You’ve already prejudiced the case beyond redemption when you do that.”

“Agent Cooper was shockingly uninterested in the fact that the fire left carbon deposits on the sliding bolt showing that the bolt was slid to the right.”

Tunnel vision would certainly help explain Cooper’s sloppy investigation. “I don’t remember if I ever interviewed Garrett,” he said. He didn’t. Nor did he speak to the firefighters at the scene. It was not even clear how he became convinced that the latch to the back door had been locked. Neither the door nor the lock was removed or studied, let alone presented to the jury as evidence. If Cooper had scrutinized this crucial piece of evidence, Lentini wrote in his affidavit, he would almost certainly have found that the latch had been in an unlocked position. “Agent Cooper was shockingly uninterested in the fact that the fire left carbon deposits on the sliding bolt showing that the bolt was slid to the right at the time of the fire,” he wrote.

Cooper offered no explanation for why he did not study the latch or the door. And he flatly denied saying something that had jumped out at Bayne when he first started studying the case: that Garrett likely singed his face from leaning down to light the kerosene in the living room. Cooper had compared it to lighting a gas grill, according to transcripts of his trial testimony — “sometimes it won’t ignite and you stick your head down there to see and you’ve got this open flame that comes back with a POOF!” Such a “flash back” of kerosene vapors was “impossible,” Lentini wrote.

“He’s right,” Cooper told me. He could not imagine having made that claim, he said. I told him it appeared in the transcripts, but he protested that did not remember. “I would be crazy to say that.”

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The entrance to Riverbend Maximum Security Institution, in Nashville, Tenn., in 2015.

Photo: Tamara Reynolds for The Intercept

The Dilemma of Remorse

The last time I saw Garrett was in early August, in the large visitation room at Riverbend. He looked the same as when I’d last seen him, perhaps a bit sunburned — he recently traded his maintenance job for work doing landscaping on the grounds of the prison. Like his last job, it pays 50 cents an hour. In his 60s, Garrett does what he can to stay healthy. He lifts weights and runs a 5K every week, he says, and tries to buy food from the commissary. “I eat a lot of tuna,” he said.

Directly behind us in the visiting area was a conference room where the parole hearing would take place, Garrett told me. I had been told that participating board members would attend via video conference, if a member attends at all. Sometimes it is only a representative who comes on the board’s behalf.

When we met, Garrett was still considering the dilemma of remorse. It’s not that he has no regrets — he has many, he told me. The man he was in 1992 was a different person — and certainly far from perfect. When it came to the night of the fire, “there are so many things I regret,” he said. If they hadn’t been drinking or smoking, he said, maybe Lance would still be alive.

Garrett hoped that Lance’s family might be swayed by the new reports from Lentini and the Tetrahedron Committee. It seemed unlikely. When I spoke to Lance’s sisters in 2014, they remembered Garrett as very abusive and remained convinced that he was guilty, no matter what the science said. So did other relatives, at least one of whom was likely to attend the parole hearing to argue against Garrett.

Should Garrett win his freedom, he has already been offered a place to stay. He is optimistic that he can find work. Decades ago, before he went to prison, he spent time as a trucker hauling drywall. Maybe he could go back to driving a truck, he told me. He may not have a traditional resume, but his inmate file is filled with certificates and letters marking his completion of educational programs. In 2010, he completed a 30-week curriculum on “Developing and Improving Life Skills.” “As a graduate, you have accomplished a great goal that will assist you in your future endeavors,” reads a 2010 letter signed by then-Gov. Phil Bredesen, who is now running for Senate. “The state of Tennessee is proud to call you a Tennessean.”

To those who have gotten to know to Garrett in recent years, the sentiment is more than just a line in a form letter. Jeannie Alexander, the former prison chaplain at Riverbend, describes him as a positive influence. “I’ve seen this often, but I think a lot of people would not expect to find someone [in prison] who is genuinely compassionate and who has just a great deal of concern about the community that they live in,” she said. “He mentored a lot of young guys coming in with life sentences.”

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Garrett, healing from burns he sustained in the fire in 1992.

Photo: Courtesy of the family

The description echoes that of a man who emailed me in 2016, after reading my story. He had done time at West Tennessee Penitentiary in the early 2000s — Garrett had been his cellmate, he said. In fact, he had done one of Garrett’s tattoos, maybe the one of Marvin the Martian, he said. “Claude is a good guy, very direct, and the perfect cellmate for a kid turning 21 in prison,” he wrote. He occasionally searched for Garrett online, hoping to see him on Facebook, “free and happy.” He was dismayed to find that he was still incarcerated.

In late September, Bayne met with two of Garrett’s longtime advocates, Denny Griswold and Karen Vander Molen, at a Panera on Nashville’s West Side. It was Vander Molen who first brought the story to my attention, when she led a prison ministry at Riverbend. The three strategized around the hearing and shared their expectations and concerns. Dozens of letters have been sent to the board on Garrett’s behalf, and the hearing was shaping up to be well-attended. Dwight Scott, Garrett’s old defense attorney, plans to speak, along with Griswold and Bayne. “I’ve never had a verdict which so undermined my confidence in the jury system, or which so depresses me to this day,” Scott wrote Garrett in a letter earlier this year. Garrett’s mother, who is 83, insisted she would make the nine-hour drive from Hiawatha, Kansas, even putting new tires on her truck. But Garrett asked her to write a letter instead.

On September 28, Bayne sent out two last letters. The first went to the chairman of the parole board. Rather than discuss the fire, he described Garrett as a person, a man with whom he has “exchanged more than 100 personal letters” over the years. “He has earned my trust and respect,” Bayne wrote. He is eager to help Garrett find a home and a job, particularly if he moves to East Tennessee.

The second letter was addressed to Cooper. Bayne had enclosed a flash drive containing the reports from Lentini and the Tetrahedron Committee, along with additional materials. He urged him to look at them. “Were I in your shoes, sir, I would not want to,” he conceded. But he would also realize he had no choice. “I ask you to revisit the event and re-evaluate the evidence while answering the question all we investigators ask ourselves, ‘Did I make the right call?’”

Top photo: Claude Francis Garrett.

The post Junk Arson Science Sent Claude Garrett to Prison for Murder 25 Years Ago. Will Tennessee Release Him? appeared first on The Intercept.

Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)
August 15, 2018

As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Pe...

As Tennessee prepared to kill Billy Ray Irick on the evening of August 9, a procession of cars drove toward a field just up the road from Riverbend Maximum Security Institution. One by one, they rolled down their windows at a security checkpoint, where Tennessee Department of Correction personnel asked passengers which side they were on: protesting the execution or supporting it. Protesters got a piece of orange tape stuck on their windshield. Supporters got green.

There were some 50 people there to oppose Irick’s execution. After parking and a pat-down, they entered the designated area, enclosed by a fence. “We Remember the Victims: But Not With More Killing,” read a large white banner brought from Ohio, courtesy of the abolitionist group Death Penalty Action. But most of the demonstrators were local. Unlike the far-flung prisons that house most death chambers across the country, Riverbend is a short drive from downtown Nashville. The proximity makes visitation easier than at most maximum-security prisons. Among the demonstrators that night were some 20 regular visitors to Tennessee’s death row.

Perhaps the most familiar was Rev. Joe Ingle, a well-known death row minister who has lived in Nashville since 1974. “What brings me here is I know Billy Irick,” Ingle said. In his decades visiting Riverbend, Ingle had come to know Irick as well-liked and trusted by others on the row, and particularly admired for his paintings, three of which he gave to Ingle before he died. “For Billy, his art was the way he expressed himself and dealt with a lot of his demons,” Ingle said.

“If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism.”

Irick was convicted of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville in 1985. The horrific crime was undoubtedly intertwined with his severe mental illness, symptoms of which revealed themselves when he was just a child. The little girl’s family would later tell an investigator that Irick had been hearing voices and “talking to the devil” before the murder, but that evidence only came out after he’d been sent to death row. “Billy was abandoned by the state,” Ingle said. Today, he explained, Tennessee has a program called ACEs, which stands for Adverse Childhood Experiences and seeks to support kids with trauma and mental health issues. But no such program existed when Irick was growing up. “If they’d have done that for Billy, we wouldn’t be here tonight,” Ingle said.


Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)

Billy Ray Irick appears in a Knox County criminal courtroom on Aug. 16, 2010, in Knoxville, Tenn.

Photo: Michael Patrick/The Knoxville News Sentinel via AP

Irick’s mental illness was just one aspect of the execution that had raised controversy. There was also real concern that Tennessee was about to torture him to death. The state’s new lethal injection protocol adopting midazolam — a sedative linked to botched executions — had been the subject of a trial in Davidson County Chancery Court mere weeks before, over a lawsuit brought by attorneys for Irick and 32 other condemned men. Witnesses from all over the country gave disturbing testimony about executions carried out using midazolam; medical experts explained in detail why it was insufficient to provide anesthesia. Particularly revealing was new evidence culled from the autopsies of people executed using midazolam in other states, which showed how high doses of the drug led to pulmonary edema — fluid in the lungs that would cause a sense of drowning.

Nevertheless, the court rejected the plaintiffs’ claims, and the Tennessee Supreme Court declined to intervene. When the U.S. Supreme Court denied a stay of execution hours before Irick was set to die, Justice Sonia Sotomayor issued a scathing dissent. “If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience,” she wrote, “then we have stopped being a civilized nation and accepted barbarism.”

As 7 p.m. approached, the crowd outside grew quiet. Any minute, according to the protocol, Irick would be strapped onto the gurney, the IVs secured, and his hands taped down. At 7:10, he was supposed to give his last statement. The protesters formed a large circle, held candles, and sang “Amazing Grace,” while a handful of people in the pro-death penalty area blasted “Hells Bells” by AC/DC in their direction. One woman, Brenda Tindall, was incredulous that there were so many people there to oppose the execution. Irick “had no sorrow in his face,” she said. “Did you notice that on TV? Zero. I can read people very well.” As a Christian, she said, she was certain God wanted people like Irick to die. “It’s in the Bible.”

But most of the people gathered outside the prison felt the opposite way. David Bass first visited a man on death row four years ago. He expected to meet a monster, he said, but instead found a human being who struck him as kind. “It started messing with my brain,” he said. Over time he started coming once a week. Like Irick, the man he visits has been on death row for more than 30 years. “He’s seen six of these,” Bass said.

Dan Mann, who came with his daughters, was emotional as he talked about a different man, who he has visited for eight years. He tends to call Mann’s wife while the family makes dinner and she puts him on speaker phone. Years ago, they would apologize “for living life in front of him,” Mann said, “to which he replied, ‘I live vicariously through you. This is my life as well.’”

“These are real friends,” Mann said. “We know what some of them did was heinous. But the nature of my faith is that it’s for redemption,” he said. “I’m here because nobody needs to die alone.”

By 7:30 p.m. there was no report from the prison. Anxiety grew the more time passed. The chancery court’s decision had been partly based on the assumption that the execution — and the duration of any pain associated with midazolam — would be relatively short. As the sky darkened, people started to leave. But just before 8 p.m., The Tennessean sent a news alert. The execution was complete.

News stories followed quickly. The execution began late and took longer than average; there was evidence that Irick might well have been conscious and experiencing pain, just as attorneys had warned. Dave Boucher, who witnessed for The Tennessean, described snoring, one possible sign that the midazolam had not worked as intended. Steven Hale of the Nashville Scene described how two minutes after the consciousness check, “Irick jolted and produced what sounded like a cough or a choking noise. He moved his head slightly and appeared to briefly strain his forearms against the restraints. Around 7:37, the color in Irick’s face changed to almost purple.” The curtains were closed after he appeared to stop breathing, Hale wrote. Then the warden spoke over the loudspeaker. “That concludes the execution of Billy Ray Irick. Time of death, 7:48 p.m. Please exit now.”


image4-1534195865

Protesters gather outside the Riverbend Maximum Security Institution on Aug. 9, 2018.

Photo: Liliana Segura/The Intercept

Irick’s execution was the first in Tennessee in almost nine years. With two more men scheduled to die at Riverbend by the end of 2018, the fight over the death penalty is not going away. Yet, in a major election year — and for all the recent coverage and controversy — the topic has been conspicuously absent from Tennessee’s electoral debates. In such a conservative state, critiquing capital punishment is not likely to be a winning tactic. Yet the restarting of the death machinery in Nashville runs against a well-documented trend both in Tennessee and the rest of the country. Executions are declining year after year — and new death sentences have become vanishingly rare.

The state of Tennessee’s death penalty was documented in a comprehensive report published last month in the summer issue of the Tennessee Journal of Law and Policy. Somewhat lost amid the frenzy over Irick’s execution, it was co-authored by Bradley MacLean, a veteran capital defense attorney who represents Abu Ali Abdur’Rahman, the named plaintiff in the lethal injection lawsuit. The 97-page article draws from years of research assessing capital punishment as applied over four decades in Tennessee. It reveals a staggering rate of death sentences reversed or vacated by the courts due to issues such as ineffective assistance of counsel, prosecutorial misconduct, and innocence.

“We tend to forget the reason behind Tennessee’s current capital sentencing scheme,” the authors write. It goes back to the landmark 1972 U.S. Supreme Court ruling in Furman v. Georgia, which declared death sentences unconstitutional nationwide. At the heart of the decision was evidence that the death penalty was being “freakishly” applied to “a capriciously selected random handful,” who ended up on death row less because of the nature of their crime and more because of factors like race and geography. “These death sentences are cruel and unusual in the same way that being stuck by lightening is cruel and unusual,” Justice Potter Stewart famously wrote in Furman.

“It is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

States set about passing new death penalty laws, and in 1976, in Gregg v. Georgia, the court upheld a new model of death penalty statutes, designed to ensure that sentences were less arbitrarily imposed. Tennessee’s law was revised accordingly. Yet more than 40 years later, its death penalty is emblematic of the very problems identified in Furman. MacLean’s co-author, H.E. Miller Jr., examined every death sentence handed down in Tennessee since its law was enacted. Of 2,514 people found guilty of first-degree murder in Tennessee between 1977 and June 30, 2017, he found, 192 were sentenced to die. Of those, more than half — 106 people — had seen their sentences or convictions vacated. Of the remaining 86, only six had been executed. Irick was the seventh. By comparison, the study found, in the same 40-year period, “24 condemned defendants died of natural causes on death row.”

Tennessee’s death penalty today is “a cruel lottery, entrenching the very problems that the court sought to eradicate,” the report concluded. The lottery is not entirely random; as in the cases that led to Furman, there is evidence of racism — African-Americans represent 14 percent of Tennessee’s population and 44 percent of its death row, the study found. The evidence is particularly stark in the most recent sentences, most of which come out of Shelby County, home to Memphis. Among nine trials in which new death sentences were imposed between July 2007 and June 2017, all but one defendant was African-American.

The decline of capital punishment in Tennessee comes even as lawmakers and the state Supreme Court have “gradually expanded the class of death-eligible defendants.” Despite Gregg’s directive that the death penalty must be narrowly imposed, the general assembly has added to the list of aggravating factors that can send a person to die, while the court has broadened their interpretation. Today there are 17 such aggravating factors. That death sentences continue to decline in spite of this suggests the policy is mostly useless, the authors write. “At this level of infrequency, it is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

The findings of the Tennessee report paint a familiar portrait of a failed policy that exists in some version or another across death penalty states. In a number of them, the very architects of the death penalty statutes passed after Furman have expressed dismay at what followed. In California, an attorney named Don Heller wrote a 1978 ballot initiative that expanded the “special circumstances” that would make defendants eligible for the death penalty. Prosecutors rushed to file capital charges. “Everyone was trying to put a notch on their gun,” Heller told me in 2016. Even as California’s condemned population has grown to become the largest in the country, only 13 executions have been carried out since Furman. One of the executed men, Heller believes, was innocent.

In Arizona, the death penalty has been similarly expanded — so much so that the state’s sentencing statute was recently challenged in a petition filed before the U.S. Supreme Court by Neal Katyal, former solicitor general for the Obama administration. The brief in Hidalgo v. Arizona called on the court to declare the death penalty unconstitutional, using Arizona as “an exemplar of the arbitrariness in the imposition of the death penalty in the United States.” Among those who signed an amicus brief was Rudy Gerber, the man who authored Arizona’s new death penalty law after Furman.

“I thought, well, having a new death penalty law is like having a new tax code,” Gerber told me last year, as Hidalgo was pending before the court. But as he saw his law take effect in Arizona, he was unnerved. He had not predicted that prosecutors would be so eager to use it, nor had he expected the law would be amended to make more and more defendants eligible for death. Whereas he wrote the original law to include six aggravating factors, today there are 14 that can send a person to death row in Arizona. Ironically, the very mechanism that was supposed to fix the death penalty “has put us right back into the arbitrariness and caprice that was condemned in Furman,” Gerber says.

“No medieval torture could be more bizarre.”

The man who wrote Tennessee’s death penalty law, David Raybin, is now a defense attorney in private practice. He was still a student at the University of Tennessee College of Law when Furman passed in 1972. “I was dealing with getting on law review and that kind of thing,” he told me in an interview last month. He recalls Furman as important, but not earth shattering; after all, it came amid “the so-called criminal law revolution of the late ’60s in the early ’70s,” bringing landmark rulings such as Miranda v. Arizona, which enshrined the right of defendants to be informed of their constitutional rights. “Every time you turned around, there was another decision coming out that had to do with the criminal justice system.”

Nevertheless, just a few years later, while working in the state attorney general’s office, Raybin found himself drafting Tennessee’s new death penalty law. Like several other states, its initial attempt at a constitutional death penalty statute had been rejected by the courts. “The legislature said, ‘We want a new death penalty statute.’ So they go to the attorney general and the attorney general comes to me and says, ‘Kid, come here.’ He says, ‘Write me a death penalty statute.’ So, I said, ‘OK.’”

Raybin drafted Tennessee’s 1977 law based on what had passed constitutional muster in Gregg — a model “we perceived to be state-of-the-art,” he said. As he recalls, prosecutors were somewhat leery of capital prosecutions at first, but many soon embraced them. The death penalty proved particularly useful for its “coercive effect” — a tool to get guilty pleas to first-degree murder. “That’s why it’s so near and dear to prosecutors’ hearts,” Raybin said.

As new death sentences peaked between the late 1980s and early 1990s, a number of problems became clear. There was the failure by the state to fund capital defense, which led to poor representation. Some death sentences imposed in felony murder cases were also troubling to Raybin — “How do you distinguish one 7-Eleven killing from another?” In the Tennessee study, the authors contrast one such robbery-murder that led to a death sentence to a brutal case involving multiple victims including a pregnant woman and a 16-month-old infant. The defendants in the latter case were sentenced to life.

Raybin worked as a prosecutor for 10 years. Although he is not opposed to the death penalty, he has written extensively about its many flaws in the decades since he left the attorney general’s office. Among those he has represented as a defense attorney was Daryl Holton, a man on death row who gave up his appeals and was executed in 2007. Holton chose to die in the electric chair, with Raybin as a witness. In a detailed account, he called the execution “barbaric in the extreme. No medieval torture could be more bizarre.” But he’s also critical of lethal injection, a method of execution once “perceived as a benign way to do this,” he told me, but which has “just turned into chaos. … It’s just an absolute disaster.”

“To me it detracts from the purpose of even having a death penalty,” Raybin said. “And it dehumanizes people and everybody who’s associated with it.”


Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick Thursday, Aug. 9, 2018, in Nashville, Tenn. Tennessee carried out the execution of Irick, condemned for the 1985 rape and murder of a 7-year-old girl, marking the first time the state has applied the death penalty since 2009. (AP Photo/Mark Humphrey)

Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick on Aug. 9, 2018, in Nashville, Tenn.

Photo: Mark Humphrey/AP

As protesters stood outside the prison last week, a vigil took place at Fisk Memorial Chapel, organized by Tennesseans for Alternatives to the Death Penalty. The group also held a vigil at a church in Memphis and another one in Knoxville “to oppose the execution of Billy Ray Irick and to remember all victims of violence, particularly Paula Dyer.”

Earlier in the week, TADP had held a rally at Nashville’s Legislative Plaza. Among the speakers was Ray Krone, who addressed the crowd from a podium next to a banner that read “Mental Illness: Treat the Illness, Don’t Kill the Person.” Krone was twice convicted in Arizona of a murder he did not commit, a prosecution based on junk science. Today he lives in East Tennessee. “We moved here six years ago, and we love it,” he told me at the rally in Nashville. As a resident, he said, it is especially important to speak out against “something that is a personal heartache and hardship for me.”

Krone addressed the crowd, telling his story and describing the toll it took on his family. Afterward, he carried a box of petitions across the street to the state Capitol, containing more than 62,000 signatures. An aide to Gov. Bill Haslam was there to receive them, but it felt like an empty gesture. The governor had already released a statement saying he would not intervene.

Stacy Rector, the head of TADP, introduced Krone to the aide, urging him to consider the implications of restarting executions in the state. “I’m more than willing to have a discussion about that,” Krone added. The aide shook his hand politely, then turned with the box and walked away.

Top photo: People gather outside the Riverbend Maximum Security Institution to protest the execution of Billy Ray Irick in Nashville, Tenn., on Aug. 9, 2018.

The post As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Penalty as a “Cruel Lottery” appeared first on The Intercept.

Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)
August 15, 2018

As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Pe...

As Tennessee prepared to kill Billy Ray Irick on the evening of August 9, a procession of cars drove toward a field just up the road from Riverbend Maximum Security Institution. One by one, they rolled down their windows at a security checkpoint, where Tennessee Department of Correction personnel asked passengers which side they were on: protesting the execution or supporting it. Protesters got a piece of orange tape stuck on their windshield. Supporters got green.

There were some 50 people there to oppose Irick’s execution. After parking and a pat-down, they entered the designated area, enclosed by a fence. “We Remember the Victims: But Not With More Killing,” read a large white banner brought from Ohio, courtesy of the abolitionist group Death Penalty Action. But most of the demonstrators were local. Unlike the far-flung prisons that house most death chambers across the country, Riverbend is a short drive from downtown Nashville. The proximity makes visitation easier than at most maximum-security prisons. Among the demonstrators that night were some 20 regular visitors to Tennessee’s death row.

Perhaps the most familiar was Rev. Joe Ingle, a well-known death row minister who has lived in Nashville since 1974. “What brings me here is I know Billy Irick,” Ingle said. In his decades visiting Riverbend, Ingle had come to know Irick as well-liked and trusted by others on the row, and particularly admired for his paintings, three of which he gave to Ingle before he died. “For Billy, his art was the way he expressed himself and dealt with a lot of his demons,” Ingle said.

“If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism.”

Irick was convicted of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville in 1985. The horrific crime was undoubtedly intertwined with his severe mental illness, symptoms of which revealed themselves when he was just a child. The little girl’s family would later tell an investigator that Irick had been hearing voices and “talking to the devil” before the murder, but that evidence only came out after he’d been sent to death row. “Billy was abandoned by the state,” Ingle said. Today, he explained, Tennessee has a program called ACEs, which stands for Adverse Childhood Experiences and seeks to support kids with trauma and mental health issues. But no such program existed when Irick was growing up. “If they’d have done that for Billy, we wouldn’t be here tonight,” Ingle said.


Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)

Billy Ray Irick appears in a Knox County criminal courtroom on Aug. 16, 2010, in Knoxville, Tenn.

Photo: Michael Patrick/The Knoxville News Sentinel via AP

Irick’s mental illness was just one aspect of the execution that had raised controversy. There was also real concern that Tennessee was about to torture him to death. The state’s new lethal injection protocol adopting midazolam — a sedative linked to botched executions — had been the subject of a trial in Davidson County Chancery Court mere weeks before, over a lawsuit brought by attorneys for Irick and 32 other condemned men. Witnesses from all over the country gave disturbing testimony about executions carried out using midazolam; medical experts explained in detail why it was insufficient to provide anesthesia. Particularly revealing was new evidence culled from the autopsies of people executed using midazolam in other states, which showed how high doses of the drug led to pulmonary edema — fluid in the lungs that would cause a sense of drowning.

Nevertheless, the court rejected the plaintiffs’ claims, and the Tennessee Supreme Court declined to intervene. When the U.S. Supreme Court denied a stay of execution hours before Irick was set to die, Justice Sonia Sotomayor issued a scathing dissent. “If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience,” she wrote, “then we have stopped being a civilized nation and accepted barbarism.”

As 7 p.m. approached, the crowd outside grew quiet. Any minute, according to the protocol, Irick would be strapped onto the gurney, the IVs secured, and his hands taped down. At 7:10, he was supposed to give his last statement. The protesters formed a large circle, held candles, and sang “Amazing Grace,” while a handful of people in the pro-death penalty area blasted “Hells Bells” by AC/DC in their direction. One woman, Brenda Tindall, was incredulous that there were so many people there to oppose the execution. Irick “had no sorrow in his face,” she said. “Did you notice that on TV? Zero. I can read people very well.” As a Christian, she said, she was certain God wanted people like Irick to die. “It’s in the Bible.”

But most of the people gathered outside the prison felt the opposite way. David Bass first visited a man on death row four years ago. He expected to meet a monster, he said, but instead found a human being who struck him as kind. “It started messing with my brain,” he said. Over time he started coming once a week. Like Irick, the man he visits has been on death row for more than 30 years. “He’s seen six of these,” Bass said.

Dan Mann, who came with his daughters, was emotional as he talked about a different man, who he has visited for eight years. He tends to call Mann’s wife while the family makes dinner and she puts him on speaker phone. Years ago, they would apologize “for living life in front of him,” Mann said, “to which he replied, ‘I live vicariously through you. This is my life as well.’”

“These are real friends,” Mann said. “We know what some of them did was heinous. But the nature of my faith is that it’s for redemption,” he said. “I’m here because nobody needs to die alone.”

By 7:30 p.m. there was no report from the prison. Anxiety grew the more time passed. The chancery court’s decision had been partly based on the assumption that the execution — and the duration of any pain associated with midazolam — would be relatively short. As the sky darkened, people started to leave. But just before 8 p.m., The Tennessean sent a news alert. The execution was complete.

News stories followed quickly. The execution began late and took longer than average; there was evidence that Irick might well have been conscious and experiencing pain, just as attorneys had warned. Dave Boucher, who witnessed for The Tennessean, described snoring, one possible sign that the midazolam had not worked as intended. Steven Hale of the Nashville Scene described how two minutes after the consciousness check, “Irick jolted and produced what sounded like a cough or a choking noise. He moved his head slightly and appeared to briefly strain his forearms against the restraints. Around 7:37, the color in Irick’s face changed to almost purple.” The curtains were closed after he appeared to stop breathing, Hale wrote. Then the warden spoke over the loudspeaker. “That concludes the execution of Billy Ray Irick. Time of death, 7:48 p.m. Please exit now.”


image4-1534195865

Protesters gather outside the Riverbend Maximum Security Institution on Aug. 9, 2018.

Photo: Liliana Segura/The Intercept

Irick’s execution was the first in Tennessee in almost nine years. With two more men scheduled to die at Riverbend by the end of 2018, the fight over the death penalty is not going away. Yet, in a major election year — and for all the recent coverage and controversy — the topic has been conspicuously absent from Tennessee’s electoral debates. In such a conservative state, critiquing capital punishment is not likely to be a winning tactic. Yet the restarting of the death machinery in Nashville runs against a well-documented trend both in Tennessee and the rest of the country. Executions are declining year after year — and new death sentences have become vanishingly rare.

The state of Tennessee’s death penalty was documented in a comprehensive report published last month in the summer issue of the Tennessee Journal of Law and Policy. Somewhat lost amid the frenzy over Irick’s execution, it was co-authored by Bradley MacLean, a veteran capital defense attorney who represents Abu Ali Abdur’Rahman, the named plaintiff in the lethal injection lawsuit. The 97-page article draws from years of research assessing capital punishment as applied over four decades in Tennessee. It reveals a staggering rate of death sentences reversed or vacated by the courts due to issues such as ineffective assistance of counsel, prosecutorial misconduct, and innocence.

“We tend to forget the reason behind Tennessee’s current capital sentencing scheme,” the authors write. It goes back to the landmark 1972 U.S. Supreme Court ruling in Furman v. Georgia, which declared death sentences unconstitutional nationwide. At the heart of the decision was evidence that the death penalty was being “freakishly” applied to “a capriciously selected random handful,” who ended up on death row less because of the nature of their crime and more because of factors like race and geography. “These death sentences are cruel and unusual in the same way that being stuck by lightening is cruel and unusual,” Justice Potter Stewart famously wrote in Furman.

“It is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

States set about passing new death penalty laws, and in 1976, in Gregg v. Georgia, the court upheld a new model of death penalty statutes, designed to ensure that sentences were less arbitrarily imposed. Tennessee’s law was revised accordingly. Yet more than 40 years later, its death penalty is emblematic of the very problems identified in Furman. MacLean’s co-author, H.E. Miller Jr., examined every death sentence handed down in Tennessee since its law was enacted. Of 2,514 people found guilty of first-degree murder in Tennessee between 1977 and June 30, 2017, he found, 192 were sentenced to die. Of those, more than half — 106 people — had seen their sentences or convictions vacated. Of the remaining 86, only six had been executed. Irick was the seventh. By comparison, the study found, in the same 40-year period, “24 condemned defendants died of natural causes on death row.”

Tennessee’s death penalty today is “a cruel lottery, entrenching the very problems that the court sought to eradicate,” the report concluded. The lottery is not entirely random; as in the cases that led to Furman, there is evidence of racism — African-Americans represent 14 percent of Tennessee’s population and 44 percent of its death row, the study found. The evidence is particularly stark in the most recent sentences, most of which come out of Shelby County, home to Memphis. Among nine trials in which new death sentences were imposed between July 2007 and June 2017, all but one defendant was African-American.

The decline of capital punishment in Tennessee comes even as lawmakers and the state Supreme Court have “gradually expanded the class of death-eligible defendants.” Despite Gregg’s directive that the death penalty must be narrowly imposed, the general assembly has added to the list of aggravating factors that can send a person to die, while the court has broadened their interpretation. Today there are 17 such aggravating factors. That death sentences continue to decline in spite of this suggests the policy is mostly useless, the authors write. “At this level of infrequency, it is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

The findings of the Tennessee report paint a familiar portrait of a failed policy that exists in some version or another across death penalty states. In a number of them, the very architects of the death penalty statutes passed after Furman have expressed dismay at what followed. In California, an attorney named Don Heller wrote a 1978 ballot initiative that expanded the “special circumstances” that would make defendants eligible for the death penalty. Prosecutors rushed to file capital charges. “Everyone was trying to put a notch on their gun,” Heller told me in 2016. Even as California’s condemned population has grown to become the largest in the country, only 13 executions have been carried out since Furman. One of the executed men, Heller believes, was innocent.

In Arizona, the death penalty has been similarly expanded — so much so that the state’s sentencing statute was recently challenged in a petition filed before the U.S. Supreme Court by Neal Katyal, former solicitor general for the Obama administration. The brief in Hidalgo v. Arizona called on the court to declare the death penalty unconstitutional, using Arizona as “an exemplar of the arbitrariness in the imposition of the death penalty in the United States.” Among those who signed an amicus brief was Rudy Gerber, the man who authored Arizona’s new death penalty law after Furman.

“I thought, well, having a new death penalty law is like having a new tax code,” Gerber told me last year, as Hidalgo was pending before the court. But as he saw his law take effect in Arizona, he was unnerved. He had not predicted that prosecutors would be so eager to use it, nor had he expected the law would be amended to make more and more defendants eligible for death. Whereas he wrote the original law to include six aggravating factors, today there are 14 that can send a person to death row in Arizona. Ironically, the very mechanism that was supposed to fix the death penalty “has put us right back into the arbitrariness and caprice that was condemned in Furman,” Gerber says.

“No medieval torture could be more bizarre.”

The man who wrote Tennessee’s death penalty law, David Raybin, is now a defense attorney in private practice. He was still a student at the University of Tennessee College of Law when Furman passed in 1972. “I was dealing with getting on law review and that kind of thing,” he told me in an interview last month. He recalls Furman as important, but not earth shattering; after all, it came amid “the so-called criminal law revolution of the late ’60s in the early ’70s,” bringing landmark rulings such as Miranda v. Arizona, which enshrined the right of defendants to be informed of their constitutional rights. “Every time you turned around, there was another decision coming out that had to do with the criminal justice system.”

Nevertheless, just a few years later, while working in the state attorney general’s office, Raybin found himself drafting Tennessee’s new death penalty law. Like several other states, its initial attempt at a constitutional death penalty statute had been rejected by the courts. “The legislature said, ‘We want a new death penalty statute.’ So they go to the attorney general and the attorney general comes to me and says, ‘Kid, come here.’ He says, ‘Write me a death penalty statute.’ So, I said, ‘OK.’”

Raybin drafted Tennessee’s 1977 law based on what had passed constitutional muster in Gregg — a model “we perceived to be state-of-the-art,” he said. As he recalls, prosecutors were somewhat leery of capital prosecutions at first, but many soon embraced them. The death penalty proved particularly useful for its “coercive effect” — a tool to get guilty pleas to first-degree murder. “That’s why it’s so near and dear to prosecutors’ hearts,” Raybin said.

As new death sentences peaked between the late 1980s and early 1990s, a number of problems became clear. There was the failure by the state to fund capital defense, which led to poor representation. Some death sentences imposed in felony murder cases were also troubling to Raybin — “How do you distinguish one 7-Eleven killing from another?” In the Tennessee study, the authors contrast one such robbery-murder that led to a death sentence to a brutal case involving multiple victims including a pregnant woman and a 16-month-old infant. The defendants in the latter case were sentenced to life.

Raybin worked as a prosecutor for 10 years. Although he is not opposed to the death penalty, he has written extensively about its many flaws in the decades since he left the attorney general’s office. Among those he has represented as a defense attorney was Daryl Holton, a man on death row who gave up his appeals and was executed in 2007. Holton chose to die in the electric chair, with Raybin as a witness. In a detailed account, he called the execution “barbaric in the extreme. No medieval torture could be more bizarre.” But he’s also critical of lethal injection, a method of execution once “perceived as a benign way to do this,” he told me, but which has “just turned into chaos. … It’s just an absolute disaster.”

“To me it detracts from the purpose of even having a death penalty,” Raybin said. “And it dehumanizes people and everybody who’s associated with it.”


Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick Thursday, Aug. 9, 2018, in Nashville, Tenn. Tennessee carried out the execution of Irick, condemned for the 1985 rape and murder of a 7-year-old girl, marking the first time the state has applied the death penalty since 2009. (AP Photo/Mark Humphrey)

Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick on Aug. 9, 2018, in Nashville, Tenn.

Photo: Mark Humphrey/AP

As protesters stood outside the prison last week, a vigil took place at Fisk Memorial Chapel, organized by Tennesseans for Alternatives to the Death Penalty. The group also held a vigil at a church in Memphis and another one in Knoxville “to oppose the execution of Billy Ray Irick and to remember all victims of violence, particularly Paula Dyer.”

Earlier in the week, TADP had held a rally at Nashville’s Legislative Plaza. Among the speakers was Ray Krone, who addressed the crowd from a podium next to a banner that read “Mental Illness: Treat the Illness, Don’t Kill the Person.” Krone was twice convicted in Arizona of a murder he did not commit, a prosecution based on junk science. Today he lives in East Tennessee. “We moved here six years ago, and we love it,” he told me at the rally in Nashville. As a resident, he said, it is especially important to speak out against “something that is a personal heartache and hardship for me.”

Krone addressed the crowd, telling his story and describing the toll it took on his family. Afterward, he carried a box of petitions across the street to the state Capitol, containing more than 62,000 signatures. An aide to Gov. Bill Haslam was there to receive them, but it felt like an empty gesture. The governor had already released a statement saying he would not intervene.

Stacy Rector, the head of TADP, introduced Krone to the aide, urging him to consider the implications of restarting executions in the state. “I’m more than willing to have a discussion about that,” Krone added. The aide shook his hand politely, then turned with the box and walked away.

Top photo: People gather outside the Riverbend Maximum Security Institution to protest the execution of Billy Ray Irick in Nashville, Tenn., on Aug. 9, 2018.

The post As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Penalty as a “Cruel Lottery” appeared first on The Intercept.