Harry Edwards, a senior judge of the Court of Appeals for the District of Columbia, at the U.S. Court of Appeals Courthouse in Washington, Sept. 17, 2012. As the financial industry confronts a wave of new government regulations, it has sympathetic ears in a key federal appeals court. (Luke Sharrett/The New York Times)
May 5, 2019

Ten Years After a Landmark Study Blew the Whistle on Junk Science, the...

In a fluorescent-lit ballroom atop Baltimore’s downtown convention center, Lt. Gen. John F. Sattler stepped off the stage and began to pace. He’d had 14 cups of coffee, he boomed, along with a Hershey’s bar with almonds. He was not about to stay still.

It was a snowy morning in late February. Sattler, a motivational speaker and retired Marine who once directed strategic planning for the U.S. Joint Chiefs of Staff, was the final panelist at the opening plenary of the 71st Scientific Meeting of the American Academy of Forensic Sciences. The annual conference brings together lawyers, scientists, and forensic practitioners from around the world to discuss the latest research and pressing issues in the field. The plenary sets the tone for the event — past speakers have included U.S. Deputy Attorneys General Sally Yates and Rod Rosenstein — while providing occasional entertainment. At the academy’s 2010 meeting in Seattle, the plenary featured a performer called the Physics Chanteuse, who sang provocatively about scientific validity.

A leadership consultant often serving corporate clients, Sattler had no specialized background in forensics. But he was determined to rev up the crowd. He gamely hit upon the theme of the 2019 meeting, emblazoned somewhat awkwardly on its program: Diligence (to the Effort), Dedication (to the Handling of Details), Devotion (to the Field). “If you took those three Ds and you looked at them every morning, you conducted your daily activities with those as your standard, I don’t think you could do wrong,” he said.

Sattler showed a slide picturing a group of armed Marines. This was the eve of the battle of Fallujah, he said solemnly, where 10,000 warriors came “to drain the swamp and get rid of the terrorists.” A year earlier, those same young men (they all happened to be men) were playing high school football and delivering newspapers, he said. Now they were bestowed with “the moral authority to take a life.” Such profound responsibility meant they had to be instilled with a clear ethical code — “those moral principles that will guide that decision-making.” Likewise, forensics practitioners must ensure their own work was beyond reproach. “In your profession, you live and die — you live and die reputational-wise at a minimum — by getting it right.”

Rapidly veering from military scenarios to their application to forensics, Sattler was a bit hard to follow. It was unclear whether anyone was weirded out by his invoking of the Iraq War, a deadly misadventure based on false intelligence, as a vehicle for illustrating ethical decision-making. “Truth matters,” he said, only to pivot to a slide of Lance Armstrong.

Nevertheless, some key themes eventually emerged. For one, as forensic scientists have learned all too well, one bad actor can tarnish an entire discipline. Not only must individuals strive to earn the highest level of trust from their peers and subordinates — a measure Sattler calls one’s “T-factor” — they should be poised to stand up to bad behavior. It is part of having a “bias for action,” Sattler explained — a readiness to move and to keep moving; to be constantly seeking improvement. Settling for the status quo is dangerous, even deadly, he warned. Outside every base in Iraq, “there was a giant sign above the gate as you went out into enemy territory. And it said: ‘Complacency kills.’ Complacency kills.”

As an alternative theme for the 2019 AAFS meeting, “complacency kills” might not have been half bad, at least if anyone had wished to inject some urgency into things. The Baltimore event began amid an ongoing crisis within forensic science that remained woefully unresolved. When we first wrote about the AAFS for The Intercept following its 2016 conference in Las Vegas, we encountered an embattled field facing rising public scrutiny over some of its most cherished and longstanding disciplines. Wrongful convictions rooted in junk science, crime labs embroiled in scandal, and a devastating revelation about the FBI’s hair microscopy division in 2015 had turned the image of forensics popularized by shows like “CSI: Crime Scene Investigation” on its head. The implications of the FBI scandal were particularly alarming. Hair analysts testifying on the stand had made erroneous statements in at least 33 death penalty cases, according to the agency. “Nine of these defendants have already been executed and five died of other causes while on death row.”

But whereas there was some reason in Vegas to feel optimistic about the prospects for reform — the theme that year was “Transformation: Embracing Change” — things have seemed to go backward since then. A report critiquing the scientific validity of certain forensic techniques, released by the President’s Council of Advisors on Science and Technology in the fall of 2016, met with aggressive pushback by the FBI and Barack Obama’s Department of Justice. Then there was the election of Donald Trump and the elevation of Jeff Sessions, who put a halt on a number of federal initiatives that were just starting to get underway.

Much of the recent upheaval in the forensics world can be traced back to a landmark study released by the National Academy of Sciences in 2009. Titled “Strengthening Forensic Science in the United States: A Path Forward,” the report questioned the scientific basis for virtually every forensic discipline used to convict people and send them to prison. With the exception of DNA analysis, it found, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

The NAS report was particularly damning for the so-called pattern-matching disciplines, in which an analyst examines a piece of evidence — say a bloody fingerprint found at a crime scene — and tries to match it to a sample belonging to a suspect. At AAFS, where forensic areas are divided into 11 different sections, many members of such fields responded with a mix of denial and defiance. While some practitioners took up the call issued by the NAS report — the fingerprint community, for example, has worked to develop objective comparison methods and determine error rates — others insisted the old ways of doing things were just fine.

In the intervening years, high-profile forensics scandals and a rising tally of exonerations have made it hard for even the most stubborn forensic experts to ignore the problem of junk science. At the 2017 AAFS meeting in New Orleans, a Virginia exoneree named Keith Harward, who spent 33 years in prison for rape and murder based on faulty bite-mark evidence, confronted the forensic dentists of the odontology section. He vowed to show up outside any courthouse where bite-mark evidence is used in the future. “I will contact the media. I will stand on the street corner in a Statue of Liberty outfit with a big sign saying, ‘This Is Crap.’”

Harry Edwards, a senior judge of the Court of Appeals for the District of Columbia, at the U.S. Court of Appeals Courthouse in Washington, Sept. 17, 2012. As the financial industry confronts a wave of new government regulations, it has sympathetic ears in a key federal appeals court. (Luke Sharrett/The New York Times)

Harry Edwards, a senior judge of the Court of Appeals for the District of Columbia, at the U.S. Court of Appeals Courthouse in Washington, D.C., on Sept. 17, 2012.

Photo: Luke Sharrett/The New York Times via Redux

Nothing to See Here

As the AAFS meeting was getting underway in Baltimore, an article was published on the Innocence Project website, authored by the Honorable Harry Edwards, U.S. circuit judge in Washington, D.C. Titled “10 Year Anniversary of the Landmark Report on Forensic Evidence,” it reflected on the progress made since the release of the NAS report — and the work left to do. Edwards is uniquely qualified to take stock of this legacy. He co-authored the report and released it to the world.

Edwards recalled the reaction to the NAS report in 2009. Some disliked that it “challenged established practices,” he wrote, a criticism he regards as absurd. “When I explained the situation to my 8-year-old grandson, he asked me, ‘Grandpa, does something bad become good just because it has been followed for a long time?’ The answer is obvious.”

Edwards never set out to be an authority on forensics. It was mainly the esteem of his colleagues that led him to co-chair the committee, formed in 2005, that would produce the NAS report. “I had a reputation of — at least this is what I was told — really fostering collegiality and bringing folks of different views together,” he told The Intercept. “That was how I came to be selected. It was certainly not based on any of my experience in science. That was not my world.”

As the committee did its research and heard testimony from leading forensic experts, Edwards became alarmed. “I was flabbergasted when I listened to the person that was testifying about bite marks,” he recalled. “There were no studies of any consequence on validation, reliability, and I didn’t have to be a scientist to understand that what he was saying was fragile, at best.” If there was reason to expect some pushback from the members of such disciplines upon the release of the NAS report, other reactions took Edwards aback.

“The group that surprised me the most were prosecutors,” he said. “Not just at Department of Justice, but prosecutors generally. Because I would’ve assumed, in my naïve way, that they would’ve welcomed a report saying we need more and better research to validate these practices, and to make them better. Because that serves both prosecutors and defendants well. And we got just the opposite. We got a lot of pushback from prosecutors.”

“I think a number of them were worried that if you took the report seriously and started doubting some of what they had been doing, this would open cases that they thought were long gone,” Edwards continued. For many in law enforcement who relied on longstanding forensic techniques to solve crimes, the NAS report was seen as a threat to their work.

If the 10-year anniversary of the NAS report was a clear opportunity to grapple with its ongoing legacy at AAFS, no one seemed to have told the conference organizers in Baltimore. Instead, they invited to the mainstage a plenary speaker who embodied the kind of skepticism and pushback that so troubled Edwards. They invited Ted Hunt.

A veteran prosecutor from Kansas City, Missouri, Hunt was tapped by Attorney General Sessions to head up the Department of Justice’s Forensic Science Working Group — a decidedly opaque pseudo-successor to the very public work of the Obama-created National Commission on Forensic Science, which the Trump administration essentially disbanded. The NCFS included a variety of stakeholders — lawyers, judges, scientists, forensic practitioners, and law enforcement officials — tasked with finding ways to “enhance the practice and improve the reliability of forensic science.” Hunt was among those who served on the NCFS, where he clashed with his colleagues on a number of issues — including those designed specifically to improve the reliability of forensic science. “Ted Hunt,” one veteran conference attendee concluded, “is the Mike Pence of forensics.”

Hunt is neatly-coiffed and trim, with the demeanor of an overcast day. He approached the lectern with an impassive expression and for roughly 30 minutes ambled through a series of platitudes — “we can’t let the perfect become the enemy of the good” — inaccurately quoted Carl Sagan and Winston Churchill, and gave lip service to the need for forensic reform while cautioning that getting too wedded to scientific truth could be a problem — “the aspirational may be inspirational, but it’s not necessarily operational.” And he offered an example to highlight the power of good, old-fashioned, pre-NAS forensics and to excoriate detractors.

Back in 1997, someone broke into a convent in Kansas City through a second-story bathroom window and strangled and sodomized a nun before fleeing the premises. A fingerprint lifted from the window ledge matched a suspect named Jerry Owens; head hairs found in the nun’s room were also consistent with Owens. Significantly, Hunt noted, a pubic hair later found on Owens’s sock was consistent with the nun’s pubic hair; the theory was that Owens picked up the hair after taking his shoes off in the bathroom in order to quiet his steps as he crept through the convent. There was no DNA testing available at the time, Hunt said, “but with the evidence we did have, it didn’t matter.” Based on the pattern-matching evidence, Owens was convicted and sentenced to two life terms plus 60 years.

But Owens maintained his innocence, persuading a big law firm to take up his cause. The hairs were sent off for DNA testing. “And on that day, science had the final say: The verdict came in and he was a perfect match to each hair,” Hunt said. “Post-conviction testing affirmed Owens’s guilt and also confirmed the relevance and reliability of the fingerprints and hair evidence offered at trial.”

This kind of vindicating result happens all the time in the criminal justice system, Hunt said. “What is uncommon is the fact that you just heard about it.” He pulled out an analogy that is a favorite among those who feel that the concerns raised by the NAS and other critical reports are overblown. “How many times do we hear about the planes that land safely at the airport each day? We only hear about the crashes. And then we hear about the same crashes, over and over again, as if the exception is the rule,” he said. “In this field, the frequent focus on isolated failures has led to a carefully crafted, constantly reinforced, and patently false narrative that the forensic sky is falling. That’s simply not true. Forensic science is not failing, it’s flourishing.”

Of course, we don’t hear about planes making routine, safe landings, because that’s what they’re supposed to do. And to the extent we hear about the same failures over and over, it’s because we need to know why they happened so that we can make improvements to prevent future disasters. The same is true in the criminal justice system, where forensic errors can lead an innocent man to the death chamber. It is impossible to know just how many cases have been negatively impacted by faulty forensics. Nearly half of DNA exonerations to date are in cases tainted by forensic errors. Focusing on mistakes — reviewing them and then applying lessons learned to the broader system — is the point, but not one that Hunt appears to have much patience for.

Instead he blamed critics — undisguised jabs at the Innocence Project, outspoken individuals within the forensics community, and journalists — for the crisis of confidence within the field. “Much of it is … strategic, dishonest, and destructive. Some of it is little more than agenda-driven advocacy in the guise of promoting scientific purity — a genre I call ‘forensic science fiction,’” he said. Others promote “what I call ‘junk journalism’ — media stories full of partisan misinformation, strawman arguments, and half-truths about forensic science.”

While Hunt’s speech might’ve provided him a few satisfying zinger moments, it did little to reflect the sobering reality on the ground: Many forensic practices still lack meaningful scientific underpinning even though they are regularly used to prosecute individuals charged with crimes. The federal government has thrown what appears to be an impressive amount of money toward funding foundational research in forensics — more than $200 million since the NAS report was released — but that’s hardly enough to cover the amount of ground necessary. In 2014, as one conference presenter noted, the feds funded forensic research at roughly $21 million; that same year the Department of Defense spent more than $41 million on Viagra. And there remain questions — and contention — over what should be researched and to what degree.

As the AAFS meetings over the past few years have made clear, in many ways, the current story of forensics is one of opposing factions: those who believe that science in service of the law needs to be just as strongly supported as pure sciences, and those — including many in law enforcement — who largely believe that things are just fine and that forensic sciences have proven themselves worthy over time regardless of whether their flaws can be drilled down to statistical truths. The question that remains is whether and how these two entrenched sides might find a workable middle ground.

bitemark-1-1556743446

Photo illustration: Soohee Cho/The Intercept, Getty Images

Fighting Over Biting

Of all the forensic disciplines and practitioners thrown into turmoil since the release of the NAS report, perhaps no group has melted down so publicly as the forensic dentists involved with bite-mark matching — the process of deciding that a patterned injury left on a victim was made by human dentition and then attempting to match the impression of that injury to the teeth of a suspect. The practice rests on a two-pronged foundation: First, that human dentition, like DNA, is unique; second, that skin is a suitable medium for recording this uniqueness. The problem is that neither premise has been proven true; in fact, scientific research conducted to date has suggested the opposite — and that bite-mark matching is an entirely subjective affair.

The NAS report, and an even more stinging critique of pattern-matching practices released by the President’s Council of Advisors on Science and Technology in 2016, were particularly critical of bite marks. The “available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bite mark and cannot identify the source of [a] bite mark with reasonable accuracy,” reads the PCAST report — a problem the group did not think could be rectified. “PCAST considers the prospects of developing bite-mark analysis into a scientifically valid method to be low. We advise against devoting significant resources to such efforts.”

Despite the conclusions of the NAS, the PCAST, and academic researchers in the field — notably, Drs. Mary and Peter Bush, whose findings have been damning — the forensic odontologists have not gone quietly into the night. Instead, for the majority of the last 10 years they have spent considerable energy avoiding serious research into bite-mark matching and have instead focused on attacking their detractors, including skeptics among their ranks. Inevitably, this vitriol has found a public stage during the annual AAFS conference. Lions of the discipline, including David Senn, a professor at the University of Texas at San Antonio, have aggressively pursued dubious ethics complaints against detractors in an effort to get them tossed out of AAFS. Manhattan prosecutor Melissa Mourges, a chief bite-mark apologist, has repeatedly lashed out at Mary Bush, including by making childish public comments about her appearance.

People like Senn and Mourges have consistently come to AAFS conferences with presentations meant to bolster their insistence that bite-mark comparison is a righteous endeavor. In Las Vegas, Mourges pulled out the safely-landing-airplanes analogy to make the case that just because bite-mark analysis isn’t perfect — indeed, bite-mark evidence, which is nowhere near as ubiquitous as say, fingerprints, has nonetheless been implicated in 31 wrongful convictions and faulty criminal indictments to date — that doesn’t mean it’s all bad. In Seattle in 2018, one dentist tried to elevate bite-mark evidence above the need for scientific scrutiny by claiming it was merely an “observational science” and thus not suited to empirical testing — “It’s like astronomy, folks! You just can’t control it.”

That same year, another dentist, Dr. Robert Dorion, opined that the focus on wrongful convictions was “fake news,” and suggested that there was a “moral, ethical, and legal obligation” to report on “rightful convictions.” In fact, he said, wrongful convictions connected to bite marks “had ceased.” When Chris Fabricant, director of strategic litigation at the Innocence Project and a relentless critic of bite-mark evidence, stood with a question challenging Dorion’s assertion (Fabricant was then working on two wrongful conviction cases connected to bite marks), the dentist said that his presentation time was up, but that he’d answer the question in 2019 (he didn’t). He then tootled off stage — before immediately returning to give a second presentation.

Despite the general intransigence — an insistence that all is fine in the face of plain evidence to the contrary — some key members of the community have broken ranks to embrace an inevitable truth: Junk science has no place in the criminal justice system.

At the 2015 conference in Orlando, two members of the community — Dr. Adam Freeman and Dr. Iain Pretty — presented the results of a study that were undeniably disastrous. Thirty-nine bite-mark analysts certified by the American Board of Forensic Odontology were asked to review 100 case studies and render an opinion on a most basic question: Is this injury a bite mark? The veteran practitioners came to unanimous agreement in just four cases. (Notably, the study did not consider whether the decisions were correct.) The following year the Texas Forensic Science Commission concluded that “there is no scientific basis for stating that a particular patterned injury can be associated to an individual’s dentition,” and recommended a moratorium on the use of bite-mark evidence.

Prompted by back-to-back blows to the credibility of the practice, a number of previous defenders of bite-mark comparison have begun to change their tune — including Dr. Frank Wright, who stood before his colleagues in Baltimore and offered a mea culpa. Wright, who participated in the Texas commission’s bite-mark case review process, noted that for years he had stood before his fellow odontologists to say that bite-mark evidence was valuable. “I stand before you now to say I was wrong.”

He said that there were members of the community who had “very strongly requested, if not demanded” that the results of the 2015 study not be made public and revealed that a subsequent study involving a smaller group of the most veteran examiners had yielded even worse results. Looking at the outcome, he said, “the light went off in my head and I said, ‘Do we really know what we’re doing?’”

Ultimately, Wright said that the entire field of bite-mark comparison had been built on decades of folly: “We learned it because patterns were shown to us and we were told they were bite marks. They went into our memory bank and that’s what we compare” casework to, he said. “A 40-year history of confirmation bias as the sole support for bite-mark evidence. It cannot go on.”

Wright implored the directors of the American Board of Forensic Odontology to issue their own moratorium on bite-mark comparison, but that did not happen. And there were other signs that not everyone is ready to lay down their dental molds — chief among them, Senn, a veteran leader of the pro-bite-mark tribe that members of the community often refer to as “Sennites.” Senn was among a handful of odontologists who orchestrated a 2013 ethics complaint against Dr. Mike Bowers, who has spent the last two decades ringing the alarm over bite-mark evidence. The effort to bounce Bowers from the AAFS ultimately failed. Undeterred, Senn was behind a second set of complaints filed last year aimed at Freeman and Pretty, who have been increasingly outspoken about the practice since 2015. Those complaints were dismissed at the start of the Baltimore conference, which apparently did not please Senn. According to multiple witnesses, he and Freeman got into a heated discussion in the bar of the Baltimore Hilton that culminated in Senn trying to climb over a railing to attack Freeman. It didn’t work; Senn got his leg caught mid-climb and had to back down. (Senn did not respond to emailed requests for comment.)

brain-2-1556743447

Photo illustration: Soohee Cho/The Intercept, Getty Images

Surprisingly Little Progress

If the crackup within the odontology section exposed a struggle for the future of forensic dentistry, elsewhere in Baltimore things were comparatively drama-free. Many presentations were geared toward improving reliability and guarding against the cognitive bias and bad incentives that can skew the work of forensic practitioners. In criminalistics, a fire marshal from Connecticut warned fire investigators not to veer too far into policing when determining how a fire started. In engineering, a presentation covered how to handle it “when a client’s ‘pet theory’ conflicts with good forensic science practice.” The jurisprudence section wrestled with all aspects of wrongful convictions, a regular theme. And members across sections got updates on the Organization of Scientific Area Committees, an ambitious effort underway by the National Institute of Standards and Technology with the ultimate goal of developing standards “to ensure that a sufficient scientific basis exists for each discipline.”

All of this made the opening plenary that much more vexing. Among AAFS regulars, the reactions ranged from weary indifference to indignation. Some were less bothered by Hunt’s haughty sermon — some version of which they have come to expect from him — than by the speech that preceded it. It was delivered by Bonnie Armstrong, founder and president of an organization called the Shaken Baby Alliance.

Although it remains widely enshrined in medical literature, the diagnosis once known as Shaken Baby Syndrome is a cautionary tale. First coined in 1971 by a pediatric neurosurgeon who identified a “triad” of symptoms as proof that an infant was subjected to violent shaking, the concept has since been thoroughly debunked. Today SBS is an emblem of the kind of junk science that sends innocent people to prison; the National Registry of Exonerations lists 17 cases involving an SBS diagnosis — in 16 of those, it was ultimately determined that there was no crime at all. The most recent exoneration took place last year, in the case of Zavion Johnson, a Sacramento man accused of violently shaking his 4-month-old baby girl to death. Johnson was only 18 years old when he called 911 to report that his child was unresponsive. He spent 10 years in prison before prosecutors finally dismissed the charges against him in January 2018.

A former kindergarten teacher from Texas, Armstrong did not address the controversy over SBS, except as a brief aside about the founding of her advocacy group (“Oh how I wish we’d never used that name”). She began with a harrowing description of being raped by a stranger at a rest stop when she was 13 years old, then moved to the story behind the Shaken Baby Alliance. The organization was inspired by her adoptive daughter, Tiffany, who was brutally attacked by her biological father when she was a baby in 1994. Tiffany had been “shaken violently and beaten with a baseball bat,” Armstrong said. Doctors gave a diagnosis of Shaken Baby Syndrome.

Armstrong was certainly sympathetic — and her account deeply disturbing. But her speech raised red flags. For one, there was the rather salient question of how a finding of SBS might relate to a baby being beaten with a baseball bat. More importantly, given the well-documented problems with SBS, why would AAFS place it center stage at an event ostensibly devoted to science?

One attendee, Michael Risinger, a law professor and expert on forensic evidence, walked out during the speech. He was dismayed that there was no one to provide the necessary scientific balance or context. “If the point of this was not to rally the troops to … evaluate the scientific basis of these things with a sort of rational and truth-conducive neutral eye, then I don’t know what the point of it was,” he said. The presentation reminded Risinger of a past AAFS plenary featuring an “awful film about abused babies,” courtesy of the odontology section. Such things might be powerful calls to action — as Armstrong put it, “your work matters” — but they do nothing to contribute to sound science. This was especially disconcerting given the recent backsliding in reform efforts.

To be fair, several academy members pointed out that the plenary session is shaped by whoever is in charge year after year and not necessarily indicative of a larger shift in mission. John Lentini, a famed fire scientist and longtime leader within the criminalistics section, said that in fact, AAFS has come a long way. Like forensic techniques themselves, which grew mostly out of the needs of law enforcement rather than the work of scientific researchers, the organization evolved from a prosecutorial mindset. “If you look at the history of AAFS, they’ve always been a police laboratory organization,” Lentini said. In the early 1970s, he said, the organization refused to give fellowship status to Paul Kirk, “one of the great forensic scientists of the 20th century,” because he worked for famed criminal defense attorney Lee Bailey. “The academy has certainly reformed because now the highest award in the criminalistics section is the Paul L. Kirk Award,” Lentini said. “He didn’t get the honor in his lifetime, but they came around to it.”

This long slow evolution of what is today the most prestigious forensics organization is a good reminder of just how much time and effort it will take to get forensics as a whole on firmer scientific footing. After all, Risinger points out, some experts were raising the problem of scientific validity back in the 1980s. “The question is, have we made progress in 30 years in attempting to shift things? The answer to that is, yes, but surprisingly little.”

WASHINGTON, DC - FEBRUARY 09:  U.S. President Donald Trump (2nd R) shakes the hand of Jeff Sessions after Sessions was sworn in as the new U.S. Attorney General by U.S. Vice President Mike Pence (R) in the Oval Office of the White House February 9, 2017 in Washington, DC. Trump also signed three executive orders immediately after the swearing in ceremony. Also pictured is Sessions's wife, Mary (2nd L), holding the bible.

President Donald Trump shakes the hand of Jeff Sessions after Sessions was sworn in as attorney general in the Oval Office of the White House on Feb. 9, 2017.

Photo: Win McNamee/Getty Images

Hostility to Reform

The slow progress is not just because of dissenting ranks within forensics. In many ways, the problem has been exacerbated by politics. While Vermont Sen. Patrick Leahy, a former prosecutor, has referred to the revelations of the 2009 NAS report as “rather chilling” and twice introduced a bill to codify some of its recommendations (the bills went nowhere), others have been openly hostile to the mere suggestion that forensic sciences need any meaningful reform. Chief among the naysayers when the NAS report was first released was then-Sen. Jeff Sessions, also a former prosecutor. “I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain,” he said at a hearing in September 2009. Given Sessions’s stance — during the hearing he lamented that forensic examinations take so long that they hold up quick prosecutions — it is probably not so surprising that as attorney general he quickly put the kibosh on the forensics commission in favor of the mysterious working group now led by Ted Hunt.

But hostility to reform hasn’t been a purely partisan issue. The release of the PCAST report in 2016 was met with even greater misgiving than the NAS report — perhaps in part because the language of the latter was far more judicious, while the PCAST report was blunt: “Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar — or even distinguishable — is scientifically meaningless: It has no probative value and considerable potential for prejudicial impact,” reads the report. “Nothing — not training, personal experience nor professional practices — can substitute for adequate empirical demonstration of accuracy.”

The pushback was swift — including from Obama’s own attorney general, Loretta Lynch, who flatly rejected the report’s recommendations for shoring up forensic practices. In a statement to the Wall Street Journal, Lynch said that her agency remained “confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent,” and that the “current legal standards regarding the admissibility of forensic evidence are based on sound science and legal reasoning.” The FBI also balked, as did a number of other law enforcement groups, including the National District Attorneys Association, which was particularly harsh. In a statement, the group accused the PCAST of “pervasive bias” and wrote that the report “conveniently overlooks the ancient debate over precisely what constitutes ‘science.’”

Minnesota Judge Pamela King was working as a public defender when the NAS report came out during the 2009 AAFS conference in Denver. She had just become a member of the group and says that at the time she really didn’t appreciate how important it was, though its release caused quite a stir. The reaction was “very, very mixed,” she recalled. “I think there were some academy members who were upset, felt threatened — really felt like they had committed their careers to doing good work and held themselves to a high degree of professionalism and they really felt that the perspectives that were being offered” by the NAS report “were attacking that.” Still others, she said, “were delighted and were really excited” by what the report said and were “hopeful that that would improve the general way that forensic science is utilized and done.”

There’s been a fair amount of change since the report’s release, and the National Commission on Forensic Science, of which King was a member, made a number of recommendations that were adopted — including a ban on practitioners using the phrase “reasonable degree of scientific certainty” when testifying about their confidence in the matches they’ve made. The terminology has no meaning outside the courtroom and yet suggests a strong scientific foundation that cannot be said about most forensic practices. Yet a number of promised reforms have not materialized.

At the 2016 conference in Las Vegas, then-Deputy Attorney General and NCFS co-chair Sally Yates announced that the DOJ would be conducting a “stress test” on various disciplines performed in the FBI lab — not because there were any particular concerns, she was quick to say, but as a means of ensuring “the public’s ongoing confidence in the work we do.” The decision seemed a prudent one, given the alarming results of a joint review of thousands of FBI hair analysis cases, which revealed that FBI analysts had overstated their conclusions 95 percent of the time. “This doesn’t necessarily mean that there were problems with the underlying science,” Yates explained to the plenary audience. “It means that the probative value of the scientific evidence wasn’t always properly communicated to juries.”

Seven months later, Lynch announced that she was adopting the NCFS recommendations on testimonial language, but that wider stress test simply never happened. “We were doing great until the Trump administration came about and … the things that were happening at the federal level, the policy stuff and so on, that came to a screeching halt,” said Alicia Carriquiry, a professor of statistics at Iowa State University and director of the Center for Statistics and Applications in Forensic Evidence.

Carriquiry says that conversations happening among stakeholders and the DOJ just fizzled out after Trump was elected and Sessions was brought on board. And the NCFS wasn’t the only advisory panel to get the hook. While Trump continued the PCAST on paper, he hasn’t appointed any members to it. In December 2018, the DOJ disbanded its Science Advisory Board, which provided input to the department on what types of research — including in forensics — it should fund.

Even gains that had been made in curbing unsupportable testimony have since weakened, she said. “When the DOJ was under the Obama administration there were conversations. In fact, I participated in many of those where we would sit with the DOJ people and think about the type of language that should come out of crime labs and what type of reviews we should be doing of the disciplines,” she said. “The second Sessions came on board those initiatives were killed dead.”

It wasn’t just that things stopped. “Worse, you know. They’re trying to walk back many of the things we were making progress on,” she said. “For example, we had come to some sort of an agreement about the fact that we were going to do a broad review of the disciplines.” But when the Trump administration took over the attitude was, “‘What review?’ So that was completely done. Then we had come to an agreement on the type of language that should be used in reporting and testimony. That was squashed and the language went back to exactly what it used to be.”

ruler-1-1556743452

Photo illustration: Soohee Cho/The Intercept, Getty Images

Resisting Science

For all the high-stakes political shifts that have stymied reform efforts, the basic problem remains: Some in the forensic science community simply resist the NAS report and what it stands for.

At the 2015 academy meeting in Orlando, the opening plenary hadn’t even begun when a controversy broke out over the report. At issue was a question included in the Academy Cup, an annual contest in which members of each section form teams to answer forensics-related trivia. (Question: Who is the anthropology section member behind the hit TV show “Bones”? Answer: Kathy Reichs.) But one true-false question was tripping people up: Is the NAS report authoritative enough to be accepted as evidence in court?

The answer was — and is — yes, says retired New Mexico appeals court Judge Roderick Kennedy, who penned the question. But not everyone agreed, so the emcee polled the group: Who says it’s true? No hands went up among the roughly 75 people assembled. False? A sea of hands shot up — “False!” several called out in unison.

Kennedy is not surprised at their reaction — many forensic practitioners don’t necessarily understand the rules of court, he says. The NAS report has been admitted as evidence (though perhaps not as often as some defense attorneys would like) and cited by jurists. In December 2018 the notoriously rigid Texas Court of Criminal Appeals gave a firm nod to the report in an exhaustive opinion wherein the court concluded that Steven Mark Chaney had been wrongfully convicted based on bad bite-mark evidence.

The claim that the NAS report was not meant to be authoritative is as old as the study itself. Edwards, the federal judge and coauthor of the report, recalls some prosecutors authoring briefs stating that it “was not intended to have any impact on court proceedings. That’s silly, of course.” But some have gone even further. In one egregious case, Mourges, the New York prosecutor and defender of bite-mark analysis, brazenly manipulated the language of the NAS report in a 2014 brief seeking to admit bite-mark evidence in a murder trial — transforming its warnings over bite-mark analysis into an endorsement. After the journalist who exposed her linguistic sleight of hand was invited to give remarks at a luncheon held by the jurisprudence section in Baltimore — a speech in which he discussed the deceptive brief — Mourges came to confront him in a room full of lawyers and judges, demanding he “cut the shit.”

People like Mourges and Hunt may wish they could censor the media that tarnishes the image of forensic evidence. But just as pep talks from motivational speakers do nothing to address the pressing challenges in the forensics world, silencing journalists won’t make the problems go away. To Edwards, who remains proud of the NAS report and its influence, the real problem is that 10 years later, “we’re not where we ought to be.”

Edwards is dismayed at the shuttering of the NCFS, which “got killed just as it was beginning to get going.” But for all its promise, one fundamental problem with the commission was that it was housed at the DOJ, which he called a mistake. One of his “great disappointments,” he said, is the failure to fulfill one of the principle recommendations of the NAS report: a “national group that was independent, separate from law enforcement, that oversees forensic science.” This group would have a budget “to fund serious research,” assess validation and reliability studies, and help to set standards. “That hasn’t happened.”

Edwards has not given up hope that this might be possible in the future. “If we had one, I think it would work. And I think people would rally behind it. But you’ve gotta have the political will to set it up. … Do we have the political will? I don’t know.”

The post Ten Years After a Landmark Study Blew the Whistle on Junk Science, the Fight Over Forensics Rages On appeared first on The Intercept.

don-johnson-1554823358
April 14, 2019

How a Former Death Row Prisoner and a Murder Victim’s Daughter Joine...

If you ask Cynthia Vaughn and Sabrina Butler Smith how they met, there’s a good chance they’ll erupt in laughter. It’s not your typical funny story — not as awkward first encounters go. But it’s pretty epic.

“Tell it, Cynthia,” Sabrina says. “Take it away!”

“It was at this big church,” Cynthia begins. Somewhere in Memphis. The two of them had been invited to speak on a panel organized by Tennesseans for Alternatives to the Death Penalty. They had never heard of one another — or so they had thought. “I’d seen the flyer and it hadn’t clicked yet,” Cynthia says. Sabrina giggles.

“We were sitting there getting ready to do everything,” Cynthia continues, “And they were introducing her. And they’re talking about how she was convicted.” Listening to the story and looking out at the audience, it suddenly dawned on Cynthia. “Ohhhhh,” she says, her eyes wide, her voice lowering to a dramatic whisper. “I remember this lady.”

Sabrina had once been notorious in Mississippi, where Cynthia grew up. Arrested in 1989 for killing her infant son, Walter, Sabrina swore she was innocent. But a nearly all-white jury sentenced her to die. She was only 19. After her conviction was overturned due to prosecutorial misconduct, however, a second jury acquitted Sabrina in December 1995. She was the first woman ever exonerated from death row in the United States.

Losing both parents in a way most people couldn’t fathom, Cynthia had grown up filled with rage.

News of Sabrina’s release had enraged Cynthia, who had just graduated high school in 1995. As a staunch supporter of capital punishment, Cynthia had no patience for those who claimed their innocence, let alone death penalty opponents who had no clue about the system in real life. She did. Her mother, Connie Johnson, was murdered in Tennessee in 1984, when Cynthia was just 7 years old. Her stepfather was sentenced to die for the crime.

Losing both parents in a way most people couldn’t fathom, Cynthia had grown up filled with rage. It radiated beyond her stepfather and toward the world around her. She became a devoted member of pro-death penalty forums, often posting during her overnight shifts as a police dispatcher. “When we weren’t busy, I would be online arguing with anti-death penalty people,” she says. One of the cases that especially incensed her was Sabrina’s.

But in 2012, everything changed. Cynthia went to see her stepfather at Riverbend Maximum Security Institution in Nashville. She had planned to confront him with every ounce of anger that had built inside her since she was a child — and she did. But in spite of herself, she also found herself forgiving him. It transformed her whole life. Cynthia felt freer, happier, more present for her own children. A few years later, she gathered up the courage to tell her story publicly for the first time. The response was so positive, she kept telling it. And that’s how she found herself at the church in Memphis, side by side with a woman whom she once wanted dead.

After the panel ended that night, Cynthia went to look for Sabrina in the bathroom. “And I just bombarded her,” she says. “I was like, ‘Alright, look. You don’t know me. But I know you. And I’m sorry ’cause a long time ago, I said really bad things about you.’” Sabrina forgave her.

Today, Cynthia and Sabrina tell the story like old friends. Traveling across the state to speak against the death penalty, they have worked out a routine. “I tell her, ‘You go first,’” Sabrina says. “We fought about it for a long time,” Cynthia laughs, but she agreed that it made sense. The story she shares now is not just about her own ability to forgive her stepfather anymore; it’s about a deeper transformation, the kind that will be necessary to abolish the death penalty once and for all.

That work has taken on a new urgency recently. In the summer of 2018, Tennessee carried out its first execution in nearly a decade. By the end of the year, it had killed two more men on death row. Six more people are scheduled to die between this year and 2020. The next execution is set for May 16, 2019. The man scheduled for death is Don Johnson, Cynthia’s stepfather.

don-johnson-1554823358

Donnie Johnson at the Riverbend Maximum Security Institution in Nashville, Tenn., in February.

Photo: Courtesy of Federal Public Defender Kelley Henry

After years of supporting his execution, Cynthia now desperately wants Johnson to live. She explained why at an event in February at the Vanderbilt University Divinity School. It wasn’t just about forgiveness. Cynthia always craved knowledge about her mother growing up. For most of her life, she said, her mother was “like a character in a storybook,” one she could never fully picture. After recovering from the initial shock of forgiving her stepfather at the prison that day, Cynthia told Johnson, “Now you’re going to tell me things I want to know.” She asked basic questions, “simple things that people take for granted all the time. ‘What was her first car?’ And he told me. It was a Ford Torino. ‘What kind of music did she like?’ Her favorite band was the Rolling Stones.” Her favorite perfume? Chanel No. 5. “Little things that made her a human that I did not know. He gave that to me. … Nobody had ever done that for me.”

Cynthia has gone back to visit Johnson a number of times. And she is still asking questions. “There is so much more about her I want to know,” she says. “But I can’t do that if the state of Tennessee executes him.”

In the official narrative of capital punishment, there are victims and there are victimizers. The latter forfeit any value they might have to society; their death brings comfort and closure to the people they have harmed. Barriers to their execution — or those who protest against it — are an affront to victims and all grieving families.

The reality is far more complicated. There are the cases of actual innocence, in which the victimizer is the state. There are the revelations about the condemned that sometimes surface long after trial; childhoods often marked by extreme trauma, violence, or abuse, which complicate the definition of who we consider victims. There are the divisions within families over support for the death penalty for a loved one’s murder. And there is the inescapable reality that executions widen the trauma of a violent crime, impacting people in ways often invisible to society. In families like Cynthia’s or Sabrina’s, these are the same people who have already been victimized by the original tragedy. “People always want to say ‘victims’ family, victims’ family’ — and I’m one of those people,” Cynthia says. “But we have to understand that every single one of those inmates also have family.”

The reality of the capital punishment is far more complicated than its official narrative.

That understanding can lead to powerful acts of compassion. On the eve of the 2017 execution of Kenneth Williams in Arkansas, for example, the daughter of one of his victims not only wrote a letter asking the governor to spare his life — she flew Williams’s daughter to Arkansas to see her father before he died. “If Mr. Williams is executed,” she wrote, “her loss, her pain, will be as real as mine.” Her letter was ignored.

Despite the resurgence in executions, the reality is that death sentences are on a steep decline in Tennessee. This mirrors trends across the country, where support for the death penalty has reached historic lows. But the notion that the death penalty is justice for victims remains widely entrenched. The narrative was recently on display in Nashville, where the governor quietly signed a bill to speed up the appellate process in capital cases. Named the Sgt. Daniel Baker Act in homage to a sheriff’s deputy who was gunned down while on duty last year — and whose alleged killers have yet to be tried — the sponsors cast the legislation as an overdue remedy that has unfairly denied closure to victims’ families for years.

It’s true that the lengthy appellate process is burdensome for all involved, but Tennessee’s law will do very little to mitigate the problem. For one, it only applies to death sentences imposed after its passage — a vanishingly small number. In the meantime, politicians and prosecutors keep promising closure to victims’ families while continually delivering the opposite. “Every time I would try to get to a point in my life where I felt like I could move on, where I felt like I could try to lead some type of normal life, the death penalty is right back in my face,” Cynthia told the audience at Vanderbilt.

Politicians and prosecutors keep promising closure to victims’ families while continually delivering the opposite.

Johnson’s death has been scheduled before. One date was in 2006, when Cynthia still supported his execution. Her bags were packed to drive to Nashville. “I was ready to go,” she said. “I wanted him dead. That was my revenge. That was what I had been waiting for.” But mere days beforehand, she got a phone call telling her that he had gotten a stay. “That was probably the first time that I realized that something is just not right,” she said. “The state is making me a victim over and over and over again.” Meanwhile, she had never received the help she needed to process her trauma.

In the archived pages of the pro-death penalty websites where she once spent so much time, there’s a lot to show Cynthia wasn’t alone. The posts weren’t all bloodthirsty rants; in one thread, participants described how much they were struggling with their physical, mental, and emotional health. A mother could see how her depression was impacting her child; the grown son of a murder victim described feelings of guilt over his own mourning process. There was talk of the news media that swarm around trials or execution dates. How do you cope when everybody seems to care about you one moment and the next minute it’s like you don’t exist?

Sabrina never had a chance to mourn the loss of her son. To this day, in fact, she cannot access his grave. After she was exonerated, she became a seasoned public speaker with groups like Witness to Innocence. Yet she struggled to get a job. “Nobody wanted to hire me,” she says. Although Mississippi passed legislation in 2009 to provide compensation for the wrongfully convicted, no sum of money could address the enduring effects of her incarceration. “They didn’t give me any type of mental service, nothing.”

In a memoir published in 2011, Sabrina describes how she “became the living dead” after the death of her son. “I was an emotional zombie for many years.” The loss was compounded by the terror she felt over the threat of execution. Her first official “death date” was set soon after her conviction in 1990. While this was a mere formality given her right to appeal her conviction, Sabrina did not understand this, and her defense attorneys never explained it. A woman in a neighboring cell tried to reassure her that the state would not kill her so fast, but on that day, Sabrina woke up at 3 a.m. and paced furiously, scared for her life. “Every time I heard some keys,” she wrote, “I thought they were coming for me.”

On a Thursday afternoon in March, Sabrina and Cynthia met up again, this time at LeMoyne-Owen College, a historically black college in Memphis. Cynthia wore pink nail polish and a black top, her sleeves rolled up to the colorful tattoo she got as an homage to her mother. Sabrina wore braids and a T-shirt that read “Journey of Hope … From Violence to Healing,” which she got during a tour with an abolitionist group whose members have been impacted by murder and state-sanctioned executions.

Sabrina and Cynthia were scheduled to speak that evening, at an event co-sponsored by Tennesseans for Alternatives to the Death Penalty and the local criminal justice reform group, Just City. In their introductory remarks, speakers would trace the death penalty to its roots in lynchings and other forms of racial violence. The legacy is ever-present in Memphis, where Confederate statues were removed from city parks in 2017. A couple blocks away from the LeMoyne-Owen campus, a historical marker stood on the site of the People’s Grocery, whose three employees were murdered in a notorious lynching that helped inspire the activism of journalist Ida B. Wells.

Sabrina and Cynthia are no strangers to this history. Both grew up in small Southern towns with mostly white populations. After her mother’s murder, Cynthia was raised by an aunt in Tunica, Mississippi, just south of Memphis. Sabrina was born in Jackson, Mississippi, later moving across the state to Columbus. “In Columbus,” Sabrina told me, “they still have a mural on the wall in the post office of people in the field picking cotton.”

This legacy makes their particular bond a point of some pride. “I’ll go there, I’ll say it,” Cynthia said as we discussed the ways their message resonates with audiences. “She’s a black woman and I’m a white woman.” In a region where racial divisions run so deep, and at a time when people seem more politically polarized than ever, Cynthia and Sabrina believe that they can reach more people together than they ever could apart. Their stories remind people of the many ways women are affected by the death penalty — it is not all about men facing execution. And they defy people’s expectations of what friendship can look like. “We’re a force,” Sabrina says.

It’s not all about shared suffering or pain, either, although the feeling of being understood brings its own joy. They have a lot of funny stories to tell, like the time at a nice restaurant after an event in Chattanooga, when they both felt out of place deciphering the menu. (“We’re not fancy people,” Cynthia says.) Driving home later that night, Cynthia got a flat tire in the middle of the night; it was Sabrina who stayed on the phone with her to make sure she got through it OK.

As the event came to a close later that night, a young woman in the audience asked Cynthia a question that gave her pause. “You are both family of the victim and family of the accused,” she said. How did she find space to grieve her mother? “I think you’re the first person to ever ask me that,” Cynthia said.

On April 3rd, a small press conference was held at Riverside Seventh-day Adventist Church in Nashville. Members of Johnson’s legal team handed out copies of a clemency petition that had been delivered to Governor Bill Lee earlier that morning. It told the story of Cynthia’s journey to forgiveness as well as Johnson’s own transformation while on death row. “It is not uncommon for inmates to have a religious experience while they are incarcerated,” Pastor Furman Fordham said. But Johnson became such a powerful leader in the prison ministry at Riverbend, the congregation took the rare move of ordaining him as a church elder in 2008.

Fordham recalled a day after church when a man approached him to say he had received bible study from Johnson in prison, a powerful testament to the role he has had helping men leave Riverbend “as changed individuals.” The clemency materials include portions of letters written on behalf of Johnson from dozens of men on death row. But the petition urges the governor to consider Cynthia above all. “She is the human being most deeply and directly affected by the weighty decision before you.”

Cynthia was not at the press conference that afternoon. It was her birthday. As she does most days, she spent the morning sleeping after her overnight shift at the casino where she works. She woke up to a chocolate cake and well-wishes from her friends. But she was bracing herself for the response to news of the clemency petition, including from family members who do not support her activism. On Facebook a couple of days later, Sabrina liked a post Cynthia put up quoting Tupac Shakur: “Y’all supposed to be happy I’m free.” (“You get it don’t ya Sabrina,” Cynthia replied.)

As Cynthia waits to hear from the governor, there is hope in the people supporting her stepfather. But the most relief right now comes from those who simply don’t judge or require explanations or expect anything from her. Sabrina gets this too. For all the years she has been telling her own story, it is always exhausting to recount your worst trauma — to reporters, to people at public events. “When you’re looking out into the audience, it’s like you have to prove something to the people,” Sabrina says. “That’s not easy. It’s not easy to put yourself right back where you started. That’s hard. So I love her because I can look over there and I can know that she shares what I know.”

The post How a Former Death Row Prisoner and a Murder Victim’s Daughter Joined Together To Fight the Death Penalty appeared first on The Intercept.

In a Nov. 21, 2014 photo, death row inmate Richard Glossip is pictured at the state penitentiary in McAlester, Okla. Glossip is scheduled to be executed Wednesday, Sept. 16, 2015. (Janelle Stecklein, Community Newspaper Holdings Inc. via AP)
April 6, 2019

When It Comes to the Death Penalty, the Supreme Court Legalized Tortur...

Months before the U.S. Supreme Court sparked fresh outrage over the death penalty by upholding the planned execution of a man who risks drowning in his own blood, Justice Stephen Breyer invited Missouri Solicitor General D. John Sauer to consider the matter “as a person rather than a lawyer.”

It was November 2018. Oral arguments in Bucklew v. Precythe were about halfway done. The issue at hand: Russell Bucklew, condemned to die for a murder and rape committed in 1996, suffered from a rare medical condition called cavernous hemangioma. Blood-filled tumors in his throat, neck, and mouth made it difficult for him to breathe — at night he slept at a 45 degree angle to avoid choking. If subjected to a lethal injection, experts warned, the tumors could rupture, causing a gruesome death. To avoid this fate — and as required by law when challenging a state’s execution protocol — Bucklew chose a different way to die: nitrogen gas, currently allowed in Missouri and three other states. But his proposal was rejected without a trial or hearing.

The courts conceded that Bucklew may well suffer under lethal injection, but found “no basis to conclude that Bucklew’s risk of severe pain would be substantially reduced by use of nitrogen hypoxia instead.” But a dissenting judge on the 8th Circuit Court of Appeals was not convinced. There were too many lingering questions. Would Bucklew be lying flat during the execution — and would his airway would be blocked as a result? How much pain would he experience if subjected to Missouri’s one-drug pentobarbital protocol versus nitrogen gas? The state’s medical expert claimed that the pentobarbital would render him immune very quickly. Bucklew’s expert disagreed.

Then there were unsettling questions brought up in the first half of the oral argument. Shielded by Missouri’s secrecy law, the state would not disclose the identities of anyone involved in carrying out the execution. So there was no way to know their qualifications — or their preparedness should something go wrong. The last time Missouri was poised to execute Bucklew, his attorney told the justices, the execution team “got a one-page summary of his condition. … It didn’t mention the tumor in his throat. It did not indicate any breathing issues.”

With so many lingering uncertainties, Breyer suggested to Sauer, it seemed logical to do more fact-finding. “Go back and hold a full hearing on it,” he said. Present the evidence and consider the alternatives. “Why not?”

Untried and Untested

One answer is that’s just not how the death penalty works. Medical practitioners may gather all information to ensure a risky procedure goes smoothly, but lethal injection is only designed to look clinical. The end goal, after all, is death. Besides, prosecutors aren’t the people who will be faced with killing a man strapped to a gurney. They have different priorities.

“First, the state of Missouri has a compelling interest in seeing this just and lawful sentence is carried out as quickly as possible,” Sauer told Breyer. To send the case back for further inquiry “would interject yet more delay before the execution of a sentence that’s been in place for 22 years now.” Plus, there was a problem with Bucklew’s chosen alternative. “At this time, no protocol exists for execution by nitrogen hypoxia. No state has ever tried it.” In its 2008 ruling in Baze v. Rees, Sauer argued, the court said repeatedly “that an alternative method of execution that is untried and untested, that no state has ever used, that no study supports showing its efficacy, is not an alternative that’s reasonable.”

For anyone who has paid attention to the controversies over lethal injection in the past decade, this argument was specious at best. It was a distortion of Baze, for one. (In that decision, which rejected a challenge to the country’s prevailing execution protocol, Chief Justice John Roberts wrote that it did not violate the Eighth Amendment to deny condemned prisoners the option of “untried and untested” alternatives to lethal injection — not that new alternatives should never be an option at all.)

But more to the point, “untried and untested” has been the name of the game for years when it comes to executions. After Baze, states strayed wildly from the three-drug protocol upheld by the court, swapping out old drugs with products never before used in lethal injection. One-drug, two-drug, and three-drug combinations were tried and discarded across the country, with a series of botched executions generating revulsion and controversy along the way.

Death penalty opponents have decried these executions as human “experiments.” But Dr. Joel Zivot, a veteran anesthesiologist and the expert in the Bucklew case, argues that it is actually worse than that. An experiment is a scientific inquiry; the testing of a hypothesis based on some kind of foundation. The states’ approach to lethal injection has been far more reckless and cruel. Calling it an experiment, Zivot said, “gives credibility where no credibility is deserved.”

In a Nov. 21, 2014 photo, death row inmate Richard Glossip is pictured at the state penitentiary in McAlester, Okla. Glossip is scheduled to be executed Wednesday, Sept. 16, 2015. (Janelle Stecklein, Community Newspaper Holdings Inc. via AP)

Death row inmate Richard Glossip at the state penitentiary in McAlester, Okla. on Nov. 21, 2014.

Photo: Janelle Stecklein, Community Newspaper Holdings Inc. via AP

State-Sanctioned Torture

The chaos over lethal injection eventually led to the case that is the precursor to Bucklew, and which is critical to understanding it: Glossip v. Gross, decided in 2015. Following the gruesome 2014 execution of Clayton Lockett in Oklahoma, a man named Charles Warner, who was next in line to die, sought an injunction in district court, protesting the “ever-changing array of untried drugs of unknown provenance.” The courts denied the challenge — Neil Gorsuch, a 10th Circuit judge at the time, was among those who rejected his petition — and Warner was executed in January 2015. Witnesses reported his last words were “my body is on fire.” Just days after his death, however, the Supreme Court granted certiorari in the challenge to Oklahoma’s execution protocol, with a man named Richard Glossip replacing Warner as the named plaintiff.

The drug at the center of the case was midazolam. Experts insisted the sedative was incapable of rendering a person insensate to the pain associated with lethal injection. But that didn’t seem to trouble conservatives on the court. “Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain,” Justice Samuel Alito reasoned in Glossip. “After all, while most humans wish to die a painless death, many do not have that good fortune.”

Glossip was a travesty. The oral arguments were spiteful and tense; Alito and and then-Justice Antonin Scalia blamed anti-death penalty activists for making it impossible for states to acquire reliable execution drugs, making clear that they would settle for a lesser alternative. The 5-4 decision sanctioned an execution protocol that was rooted in junk science and peddled by a state that would be revealed to have misled the court. Most devastating, Glossip imposed a grim new requirement that would make it nearly impossible to challenge lethal injection: People on death row now had to offer an alternative way for the state to kill them.

This “second prong” of Glossip, as it is known in legal terms, put a major burden on the condemned and their attorneys. It also put medical experts in an ethical quandary; few would be willing to overtly endorse a method of execution as a reasonable alternative. As death penalty lawyers lost case after case, new evidence emerged that states had been quietly torturing people to death on the gurney. It came to light at a trial over Tennessee’s lethal injection protocol last summer, where a slew of witnesses testified to disturbing scenes during executions using midazolam. Their descriptions were backed up by a pathologist who had reviewed every available autopsy of people executed with the drug and found evidence of pulmonary edema, a buildup of fluid in the lungs, indicating that the condemned had drowned in their own fluids. A federal judge in Ohio was so disturbed by this evidence earlier this year, he issued a ruling decrying midazolam executions as akin to waterboarding — a finding that led the newly elected governor to put scheduled executions on hold.

It is against this backdrop that the Supreme Court handed down its controversial 5-4 decision in Bucklew earlier this week. In his opinion, Gorsuch reiterated what Alito wrote in Glossip, that the Constitution “does not guarantee a prisoner a painless death — something that of course, isn’t guaranteed to many people, including most victims of capital crimes.” Only executions that were deliberately cruel would be considered unconstitutional.

Gorsuch’s opinion sparked shock and indignation. Commentators called it “bloodthirsty,” “medieval,” and “immoral,” a guarantee that more people will die “in agonizing pain.” Legal analysts warned that it dismantled the “evolving standards of decency” framework that has been so fundamental to Eighth Amendment jurisprudence, while marking “the start of a new, brutal era in American capital punishment.”

In truth, it is hard to know how Bucklew might impact Eighth Amendment law beyond death penalty cases. And on this front, it would be hard to do more damage than has already been done. Neither Baze nor Glossip had much to say about “evolving standards of decency.” Both rulings upheld methods of lethal injection — once seen as advanced and enlightened — at the very moment they were being revealed to be just as cruel as its predecessors. Although the Supreme Court has curtailed the execution of vulnerable populations — juvenile defendants, people with mental disabilities — it has always given constitutional cover to even the most grotesque executions. While the ruling in Bucklew is callous and cruel, it is also a reminder of how little most Americans have paid attention to what states have been doing in their name. For the people on death row, the court legalized torture long ago.

A group of death penalty opponents hold a vigil outside St. Francis Xavier College Church hours before the scheduled execution of Missouri death row inmate Russell Bucklew Tuesday, May 20, 2014, in St. Louis. A federal appeals court has granted a stay of execution for Bucklew, hours before he was scheduled to die for killing a southeast Missouri man in 1996. The 8th U.S. Circuit Court of Appeals on Tuesday cited concerns about Bucklews' rare medical condition, which raised the risk of "unnecessary pain and suffering by the inmate." (AP Photo/Jeff Roberson)

A group of death penalty opponents hold a vigil outside St. Francis Xavier College Church in St. Louis, hours before the originally-scheduled execution of Missouri death row inmate Russell Bucklew on May 20, 2014.

Photo: Jeff Roberson/AP

Build Your Own Gas Chamber

So why did Bucklew strike a nerve? For one, it was one of the first death penalty rulings handed down by the new Supreme Court bench. For those seeking clues on just how cruel the new conservative court might be going forward, Bucklew certainly gives reason for alarm.

Bucklew only made it to oral argument in the first place because of the bench as it existed on March 20, 2018 — the day Missouri planned to kill him. To win a stay of execution, five Supreme Court justices must vote in favor — Roberts, Gorsuch, Alito, and Clarence Thomas all voted against. (Then-Justice Anthony Kennedy, the longtime swing voter in death penalty cases, voted in favor.) A few weeks later, the justices agreed to consider Bucklew’s claim that executing him would violate the Constitution.

But in the intervening months, Kennedy left the court and was replaced by Brett Kavanaugh. Bucklew would be his first death penalty case. To his credit, Kavanaugh asked some key questions during the oral argument last fall, pushing Missouri’s solicitor general to answer whether there was any constitutional limit to the suffering imposed by an execution method in the absence of a viable alternative. (“So you’re saying that even if the method imposes gruesome, brutal pain, you can still go forward?” Kavanaugh asked. Yes, Sauer said, unless the punishment was seen as “superadding terror, pain, or disgrace.”) But ultimately, Kavanaugh fell in line with his right-wing colleagues.

For those in the trenches of lethal injection litigation, there is certainly plenty to hate about Bucklew. But it is hardly a shock. “It’s disappointing that the court seems to be wedded to this idea that defendants have this obligation to endorse methods of execution,” said Tennessee Federal Public Defender Kelley Henry, calling Bucklew “an additional tie on our hands.”

At the same time, Henry said, “the court did clear up a dispute in the lower courts.” Until Bucklew, it was unclear whether Glossip required the condemned to propose alternatives that were already on the books in their respective states. Bucklew held that any existing execution method that petitioners believed could reduce the risk of pain is on the table. In the through-the-looking-glass world of lethal injection litigation, this is what passes as progress.

Henry points out the double standard that exists among the justices over “untried and untested” execution methods. (“It seems to me that if you have a method that no state has ever used, that that danger is magnified,” Roberts mused at oral arguments last fall.) “If the state wants to experiment on its own, that’s fine,” Henry says. “But if we want to say that the state’s method is unconstitutional,” and propose an alternative method, “we have this additional burden of proof.”

Indeed, one of the most gratuitous sections of Gorsuch’s opinion is a portion criticizing Bucklew’s “bare bones proposal” of using nitrogen gas to kill him. Among the “essential questions” Bucklew failed to address: “how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some other mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.”

To Zivot, the alternative method requirement was already bad enough. Now “the question is, are you therefore asking Bucklew to build his own gas chamber? And then ‘with how many bricks?,’ I suppose, and ‘what kind of chair?,’ and ‘where would the nitrogen go?’ And then he would have to conduct some sort of test, I guess, with volunteers, and try them out and see perhaps a randomized prospective trial comparing, say, lethal injection to nitrogen hypoxia or some such thing. Obviously it’s absurd.”

There is an additional irony in Gorsuch’s insistence on a better blueprint for executions. Like its historical predecessors, lethal injection was never the subject of rigorous study by the states that have adopted it. From its invention in the 1970s, the design was merely copied from one state to the next, with prison officials tasked with choosing drugs and figuring out doses. In recent years, states have relied on increasingly dubious sources, seeking out compounding pharmacies to acquire drugs, while occasionally breaking federal law. To ward off scrutiny, states have passed measures to keep secret their sources, claiming that intimidation by anti-death penalty zealots creates a security risk.

Missouri is no exception. Although it has escaped the controversies over midazolam, having never adopted it, the state chose its current drug protocol the same way as others have: based on availability rather than its efficacy. In an exposé published last year, BuzzFeed News uncovered the identity of the pharmacy that sold the drugs used in Missouri’s executions going back to 2014, a compounding pharmacy “based in the suburbs of St. Louis that has been repeatedly found to engage in hazardous pharmaceutical procedures and whose cofounder has been accused of regularly ordering prescription medications for himself without a doctor’s prescription.” Under its “cloak and dagger” drug procurement process, prison officials attended “a clandestine meeting with a company representative, exchanging an envelope full of cash for vials of pentobarbital.”

A Last Gasp for the Death Penalty?

There may be another reason the ruling in Bucklew was so widely condemned. The death penalty is on the decline. Public support has fallen to historic lows. Despite a president who fantasizes about executing drug dealers, a stance against the death penalty is no longer seen as a liability among his opponents in the 2020 election. For the first time in decades, it is the default position among Democratic candidates.

It may also be that Bucklew, despite being guilty of horrible crimes, is indisputably vulnerable to the agony and torture of lethal injection in a way that others are not. If Missouri law allows executions by nitrogen gas, it seems senseless not to try to grant his request. Bucklew was not challenging all pentobarbital executions, after all. He was merely asking to avoid the certainty of a tortuous death for himself. As Breyer might put it, “Why not?”

Because it “invites pleading games,” writes Gorsuch, in one of the most callous parts of his opinion. If the court granted relief to Bucklew, soon others would be trying the same thing. Gorsuch may be relatively new to the Supreme Court bench, but he has made clear that he is tired of lethal injection challenges — or as he casts them, “tools to interpose unjustified delay.” If Bucklew teaches us anything, it is that the death penalty’s many cruelties will never be ended by the same court that sanctioned it for generations. If Americans truly care about the torture committed in their name, they must stop looking to judges who can only think like lawyers and not as people.

The post When It Comes to the Death Penalty, the Supreme Court Legalized Torture Long Ago appeared first on The Intercept.

March 13, 2019

“There Are Innocent People on Death Row” — Citing Wrongful Convi...

In a historic executive order signed Wednesday morning, California Gov. Gavin Newsom imposed a moratorium on executions and ordered the death chamber at San Quentin Prison — unused following a $853,000 renovation a decade ago — closed. “We are, as I speak — as I speak — shutting down, removing the equipment in the death chamber at San Quentin,” Newsom said at a press conference at the state capitol in Sacramento.

In remarks that emphasized racial disparities and the risk of executing innocent people, Newsom described his decision as the culmination of “a 40-year journey” that began when he was just a child. His grandfather introduced him to Pete Pianezzi, who came close to receiving the death penalty in 1940 after being set up by the mob. Pianezzi was eventually pardoned in 1981, at the age of 79. But wrongful convictions remain a profound danger. “You had someone just last year that was released from death row after serving 26 years in San Quentin,” he said, referring to the case of Vicente Benavides, exonerated in April 2018.

Newsom’s order leaves intact the sentences of all 737 condemned people in the state, the largest death row in the country. It also does nothing to stop prosecutors from seeking new death sentences, something California district attorneys have proven eager to do. In this sense, Newsom’s announcement merely formalizes the status quo in a state whose death penalty system has come to be defined by disarray — and where no executions have been carried out in more than 13 years.

Nevertheless, the governor’s language against the death penalty was passionate and unambiguous, suggesting that he could take more decisive action in the future. He explained that he felt no choice but to act now upon being confronted with the question of whether he would continue the efforts of the previous administration to adopt a viable lethal injection protocol. “I would be lying if I said I could support that,” he said. In addition, he said, there are 25 people on death row who have exhausted their appeals, raising the possibility that he would have to oversee their executions, something he would be unwilling to do.

Newsom’s move comes just a few years after California actually voted to hasten executions in the state. Voters in the 2016 election were faced with confusing, dueling ballot initiatives: Proposition 66, which sought to revamp the system in order to speed up executions (a measure strongly supported by law enforcement), and Proposition 62, which sought to abolish the death penalty and replace it with life without parole. Then-Gov. Jerry Brown stayed mum on the issue as did Kamala Harris, then the state’s attorney general and now a U.S. senator and Democratic candidate for president. But Newsom, at that time the state’s lieutenant governor, came out forcefully in favor of abolition, writing that the death penalty was “fundamentally immoral.” When the votes were counted, Prop 62 had failed and Prop 66 had passed by the narrowest of margins.

As predicted at the time, legal challenges have blocked the implementation of Prop 66. Today, California is one of several death penalty states where executions remain stalled with no sign of restarting. In Pennsylvania, which has not used its death chamber since 1999, Gov. Tom Wolf declared a moratorium on executions in 2015, calling the death penalty “ineffective, unjust, and expensive.” Moratoriums have also remained in place in Oregon and Colorado, two states on the cusp of abolishing executions altogether.

Even the most active death penalty states have been continually mired in controversy and litigation over execution protocols. In Ohio, Gov. Mike DeWine recently announced a pause on executions while the state weighs alternatives to its lethal injection protocol. The decision came soon after he granted a reprieve to Warren Keith Henness in January, citing concerns by a federal judge that the execution would be akin to torture.

In many ways, California’s death penalty system is emblematic of the state of capital punishment nationwide. As in much of the country, people on death row in the state are more likely to die from illness, suicide, or old age than they are to be executed. California’s last execution took place in January 2006, when it put to death 76-year-old Clarence Ray Allen, the oldest person ever executed by the state. Allen, who was diabetic and legally blind, was brought to the death chamber in a wheelchair. Soon after Allen’s execution, a challenge to the state’s lethal injection protocol brought the system to a halt.

Yet California prosecutors continued to seek death sentences — 180 people were sent to death row between 2006 and 2015, the last year for which the California Department of Corrections and Rehabilitation has posted data. Since California reauthorized the death penalty in 1978, death sentences have rarely led to executions. According to data compiled by The Intercept, at least 72 people on death row have had their sentences reduced to life with or without parole and at least 11 have been released from prison, including six who were ultimately exonerated. And the row continues to gray: Fifty-three percent are 50 or older; 79 people have died awaiting execution. Twenty-six have killed themselves.

Nevertheless, prosecutors continue to insist that the death penalty is effective and necessary. The Association of Deputy District Attorneys lambasted Newsom’s order as “hasty and ill-considered,” saying that it violates the will of the people. “The voters of the State of California support the death penalty,” ADDA President Michele Hanisee said, saying that this was “powerfully demonstrated by their approval of Proposition 66 in 2016.” In an interview with The Intercept that year, Hanisee said that hastening executions was about delivering justice to victims, not about clearing the growing backlog of people awaiting execution. “I don’t think the goal is to clear death row,” she said at the time. “That would be perverse.”

“A Colossal Failure”

News of the governor’s moratorium came as a pleasant surprise to Donald Heller, the veteran California attorney who wrote the 1978 ballot initiative that created California’s current death penalty law. Heller told The Intercept in 2016 that he was dismayed at the way the law was applied, particularly in the case of Tommy Thompson, a man executed in 1998 — and who Heller firmly believed was innocent.

Heller was in Boston and had not yet heard the news about Newsom’s planned announcement when The Intercept reached him on Tuesday night. “I applaud what he’s doing,” he said. “It shows courage and a belief that capital punishment should eventually be abolished.” Heller was an outspoken supporter of Prop 34, the predecessor to the abolitionist initiative defeated in 2016. At that time, he recalled, “it was estimated we had spent $4 billion executing 13 people, which is truly insane.” Today, the estimate has climbed to $5 billion.

Heller calls the ballot initiative he authored in the late 1970s “a colossal failure, because it didn’t function as intended.” Rather than make the death penalty apply to only the most egregious crimes, “it filled death row — and so many cases have been overturned for reasons that dealt with ineffective assistance of counsel. It’s just not effective — and I’m convinced it’s not a deterrent.”

Darryl Stallworth, a former prosecutor turned defense attorney in Oakland who campaigned for Prop 62, was “absolutely delighted” at Newsom’s decision. Stallworth came to oppose the death penalty after prosecuting a young black man in a capital case that ultimately ended with a sentence of life without parole. After 27 years working in the justice system, he has returned time and again to “the fundamental understanding that the death penalty does not deter crime, it does not save lives, it does not provide closure, it subjects people to an awful lot of disproportionate treatment based on color, class, gender,” he said. “It is a system that does not have the proper mechanisms to make sure that they get it right, and even if they do, oftentimes it’s still not constitutional.” Stallworth called capital punishment a “scar” on the nation’s laws. “I’m happy that the governor has recognized the scar, the taint, the damage that it has left on the criminal justice system.”

As Newsom made clear at the Wednesday press conference, the enduring unfairness inherent in the death penalty was what forced him to act. More than 60 percent of California’s death row population are people of color; overall, 61 percent of Californians are white. “Our death penalty system has been — by any measure — a failure,” Newsom said. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation.” It does not act as a deterrent and has wasted billions, he said. “But most of all, the death penalty is absolute. Irreversible and irreparable in the event of human error.”

And there are lingering questions about the impact of human error — and of bias and corruption — in a number of California cases, including that of Kevin Cooper, who has been on death row since he was convicted in 1985 of a grisly quadruple murder in Chino Hills. There are serious reasons to question Cooper’s guilt — and to believe that he was framed by law enforcement — and he has long sought DNA testing in an effort to clear his name. But Kamala Harris refused to allow the testing during her time as attorney general — and then Jerry Brown dragged his heels until the last days of his administration, when he finally issued an executive order providing limited testing and consideration of disputed evidence. In February, Newsom widened the scope of the testing.

The country also watched as California’s death penalty system went into full meltdown mode in Orange County as prosecutors tried to secure the death penalty for Scott Dekraai, who killed eight people in Seal Beach in 2011. Dogged work by public defender Scott Sanders revealed years of malfeasance by the county’s district attorney and sheriff’s office, who employed jailhouse snitches in unconstitutional schemes in an attempt to pry confessions from inmates awaiting trial. The extent of the scandal convinced a state district judge to bar the state from seeking the death penalty for Dekraai: It could not be trusted to ethically do so, he found. The scandal ultimately led to the ouster of long-time District Attorney Tony Rackauckas, a rabid supporter of Prop 66 who was defeated in the 2018 elections.

Ultimately, Newsom said it will be up to Californians to end the death penalty, which he hopes they will do. “Five billion dollars could have bought a lot of justice for murder victims that didn’t have their murders investigated,” he said. “Five billion dollars could have bought a lot of justice to people that had inadequate representation. … Five billion dollars could have bought a lot of justice in training to right the wrongs of a criminal justice system that is skewed against black and brown people.”

The post “There Are Innocent People on Death Row” — Citing Wrongful Convictions, California Governor Halts Executions appeared first on The Intercept.

cfg-lorie-1550689237
February 24, 2019

Fire Scientists Say the Arson Case Against Claude Garrett Was Fatally ...

In a tense, crowded room inside Nashville’s Riverbend Maximum Security Institution, Claude Garrett sat before a large TV monitor and stared at the screen. Behind him, a crowd of people gathered before a long conference table. Garrett wore prison-issued blue jeans, glasses, and a serious expression. Looking back at him on the screen was Richard Montgomery, chair of the Tennessee Board of Probation and Parole. Soon he would say whether Garrett should be released or remain in prison.

It was a Monday in October 2018. The hearing had started at 10:30 a.m. “Mr. Garrett, what is your inmate number, sir?” Montgomery asked. Garrett recited it: #225779. “You were born on November 17, 1956, and you’re 61 years old?” Yes, Garrett said. Montgomery thanked everyone in attendance. “The more testimony we hear, the more facts we hear from each and every one of you, the better decision we can make,” he said.

Montgomery summarized Garrett’s record dating back to the 1970s: a handful of misdemeanors, followed by felonies, the most serious of which were some burglaries in Indiana. He then reviewed Garrett’s disciplinary write-ups in prison. There were only five, total. Four dated back to the mid-’90s. Finally, Montgomery asked the question Garrett had been pondering for more than 25 years.

“Tell me, on February 24, 1992, what happened?”

Garrett told the story as he had countless times. How he and his girlfriend, Lorie Lee Lance, had been out drinking at a local bar the night before; how they came home late and dozed off in the living room, then moved to their bedroom. “Sometime later I was woken up,” Garrett said. “I don’t know what woke me up. I recall looking into the living room and seeing a light flickering on the wall.” It was a fire. “I yelled at Lorie. She got up behind me and I had ahold of her wrist. We went toward the front door, which was to the right of our bedroom.” But then Lance “pulled back,” Garrett said. “She didn’t follow me through the door.”

cfg-lorie-1550689237

Claude Garrett and Lorie Lee Lance.

Photo: Courtesy of Claude Francis Garrett

Lance was later found in a utility room toward the back of the house. She died from smoke inhalation. The next year, Garrett went on trial for her murder. Jurors did not believe his story. They believed what prosecutors said: that Garrett had locked Lance in the back room and poured kerosene throughout the house. The state’s case was shaky — in fact, Garrett won a new trial after he discovered that prosecutors had concealed a police report showing the door in question had actually been found unlocked. Nevertheless, in 2003, a jury convicted him again.

For more than 25 years, Garrett has maintained his innocence. He has also gained the support of numerous people on the outside, who wrote letters to the board on his behalf. His most vocal advocate is a veteran fire investigator, Stuart Bayne, the defense expert at his 2003 retrial. A tall man with a formal air, Bayne was one of four supporters who spoke at the hearing. He wore a dark suit and carried prepared remarks. “As a representative of the fire investigation community, I owe allegiance to only one thing, and that is the truth,” Bayne began. Garrett’s conviction was “fundamentally unjust,” he said — and there was scientific evidence to prove it.

Like all fire investigators of his generation, Bayne explained, he had lived through a sea change that began in the 1980s. Until then, “I believed in arson pattern indicators that have since then been proven untrue,” he said. In 1992, the same year as the fire in Garrett’s case, the National Fire Protection Association published “NFPA 921,” a groundbreaking guide that would transform the field. Rather than rely on instinct, experience, and visual interpretations of fire scenes, it held that fire investigators should follow the scientific method: using all evidence from a scene to test a hypothesis before making a determination about a fire’s origin and cause.

The investigators in Garrett’s case had done no such thing. Instead, they discarded the furniture and other contents of the house and zeroed in on false indicators. At trial, the state’s key witness, James Cooper, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, swore by “pour patterns” on the floor, which supposedly proved an accelerant had been spread throughout the home. He continued to insist upon the evidence at the 2003 retrial, despite the fact that “pour patterns” were widely understood to be unreliable junk science by then. To Bayne’s distress, Garrett’s retrial attorney took him off the stand before he could explain the vast changes in fire investigation over the previous decade.

In the weeks before the October parole hearing, Bayne had mailed each parole board member a set of reports. “The information I sent you are the result of systemic analysis of the fire,” he told Montgomery. One report came from renowned fire scientist John Lentini, who first reviewed Garrett’s case in 2010 and concluded it was based on junk science. Another came from a group of international fire experts called the Tetrahedron Committee, who also found that the arson determination in Garrett’s case was fatally flawed. “Today’s fire investigation standards reject the non-scientific methods used at the Lance-Garrett fire in 1992,” Bayne explained. It was not the kind of evidence parole boards usually hear. But Bayne urged Montgomery to consider it.

Opposing Garrett’s release were members of Lance’s family. In emotional statements, they described Garrett as an abuser who had killed Lance because she planned to leave him. The family shared stories of his volatile behavior that they also told me when I first investigated the case, for an article published in 2015. “He’s conned every one of these people in this room,” Lance’s younger sister, Hayley, said. They were not swayed by the explanation of outdated fire investigations. “All this about the junk science, that may be true in some cases,” Lance’s aunt said. But not in this one.

Just before noon, it came time for Montgomery to announce his decision. “The board does not try cases,” he said. “We do not determine whether a person is innocent or guilty.” What mattered now was that Garrett had served the sentence required by the state of Tennessee. “I look at your record and I see a person that is trying to improve his life,” Montgomery told Garrett. His vote would be for Garrett to be released in March 2019.

Garrett was stunned. But the outcome was still far from certain — he needed three more votes in his favor for release. Montgomery said the board members would make their decision within seven to 10 days.

About a week later, Garrett got the news. The board had denied his parole application. He won’t have another chance until 2022.

The Riverbend Maximum Security Institution, where Charles Jason Toll died in 2010 after a cell extraction, in Nashville, Tenn., July 23, 2014. While cell extractions are not new, a series of cases and lawsuits around the country are demonstrating the dangers of their widespread use, especially with mentally ill inmates like Toll, who represent an increasing segment of the jailed population. (Joe Buglewicz/The New York Times)

The Riverbend Maximum Security Institution in Nashville, Tenn., July 23, 2014.

Photo: Joe Buglewicz/The New York Times/Redux

“I’m disappointed but not discouraged,” Garrett told me a few weeks later. It is rare for anyone to get paroled their first time before the board, he said. In fact, compared to many people in his position, Garrett was lucky to face the parole board at all. Not long after he was convicted, legislators doubled the amount of time lifers with parole eligibility in Tennessee had to serve before their first hearing, from 25 to 51 years.

For Bayne, however, the denial was an intolerable blow. In a six-page letter last November, he urged the board to reconsider its decision. He reminded members of the seven flash drives he had sent them earlier that fall, which included affidavits and reports from leading fire experts. “There are reputable fire investigators/scientists who are trying to tell you that this whole matter is fundamentally unjust,” Bayne wrote. He did not hear back.

February 24 marks the 27th year since the fire that took Lance’s life and sent Garrett to prison. As he continues to fight his conviction, Garrett is trapped in a kind of paradox. Even as decades of scientific advancements have debunked old forensic techniques and provided more tools to identify wrongful convictions, the legal architecture that surrounds him has made it harder to win relief. The same tough-on-crime era that gave rise to the Antiterrorism and Effective Death Penalty Act — which has shut defendants out of court even when they have compelling innocence claims — brought a wave of state-level reforms shortly after Garrett was first convicted. In 1995, Tennessee Gov. Don Sundquist signed sweeping legislation “designed to make convicting criminals easier and keep them in prison longer,” as The Tennessean reported at the time.

The tough-on-crime overhaul included major revisions to the state’s Post-Conviction Procedures Act, imposing a one-year deadline for people to challenge their convictions in state court. While in theory it also included a safeguard to address wrongful convictions — allowing for the reopening of a state post-conviction petition based on new scientific evidence — the limitations were rigid. In 2017, Garrett filed such a motion in state court, based on the reports of Lentini and the Tetrahedron Committee. Prosecutors protested on several grounds: The motion had been filed too late; it revealed no new evidence; and it did not prove Garrett’s “actual innocence” as required by the law. The court swiftly ruled for the state.

claude-garrett-1550689343

Claude Garrett.

Photo: Courtesy of Claude Francis Garrett

Today, Garrett is nearly out of legal options. Yet there is a key avenue that could provide a way out. In 2016, Davidson County Attorney General Glenn Funk announced the launch of a conviction review unit. Modeled partly on the Brooklyn District Attorney’s groundbreaking CRU, it was supposed to provide a chance for people like Garrett to have their cases re-examined and possibly get exonerated — at least in theory. But while the Brooklyn unit has led to 24 exonerations in the past five years, similar units across the country have proven ineffective. In Arizona, the Pima County Conviction Integrity Unit has done nothing to intervene in the case of Barry Jones, even after his conviction was overturned last summer. In Ohio, where prosecutors used junk science to convict Angela Garcia for a fire that killed her two daughters, the Cuyahoga County Conviction Integrity Unit rejected Garcia’s application on its face. Garcia later pleaded guilty to arson in exchange for a reduction in her sentence.

Until very recently, the Davidson County CRU had shown similarly meager results. In January, Nashville Public Radio released the results of a two-year investigation into the office. It revealed that while 38 cases had been submitted to the unit for review, not a single one had been ordered to be reinvestigated. Part of the problem was the structure of the unit. Cases were screened by a seven-member panel of prosecutors, which bred inevitable intransigence. As Nashville defense attorney Daniel Horwitz pointed out, it also created conflicts of interest; in the case of his client Joseph Webster, whose application was rejected in July 2018, the panel included the same prosecutor who sent Webster to prison in the first place.

The attorney general’s office announced an overhaul of the unit’s protocol. On February 8, news broke that the CRU would take on the Webster case after all, the first to move forward since Funk launched the unit. All of this is potentially good news for Garrett. But there is one major obstacle keeping him from applying. The unit’s rules dictate that it “will not consider requests for review while any appeal, petition, or writ is pending in court.” For Garrett, whose federal appeal has been winding its way through the courts since 2013, it is a wait he can ill afford.

Although Davidson County is not unique in this requirement, it’s not even clear why it exists. “As a general rule, we stay out of it while it’s in the courts,” Assistant Attorney General Robert Jones, who leads the unit, explained over the phone earlier this month. But he insisted that such language would not foreclose on a deserving application. He pointed to the next line in the unit’s protocol: “The CRU retains the discretion to review the case if it is in the interest of justice.” If there is compelling evidence of innocence, he said, “we’re not gonna sit here for years and wait for the case to go through the courts.”

Even so, the language of the unit’s official protocol suggests the bar for relief will be high. In order for the CRU to recommend that a conviction be vacated, an applicant must show “clear and convincing evidence” of “actual innocence,” as defined by the Tennessee Supreme Court. In a case like Garrett’s, where the physical evidence was discarded almost immediately, there is no new testing that can establish such clear proof of his innocence, let alone something like DNA.

If there is one thing that might help Garrett between now and whenever he submits his case for review, it would be a willingness on the part of the state’s main expert to admit he was wrong, at least in his methodology, which would never pass muster today. But until now, this has proven impossible. When I went to see Cooper last year, he defended his work and refused to consider the reports by Lentini or the Tetrahedron Committee. Although he backed away from certain evidence he once emphasized on the stand, he reiterated his belief in Garrett’s guilt and reminded me of a crucial piece of evidence: the lock on the utility room door. “That was key,” he said.

CGfire-1550901724

A photo, different from the one in the Lentini report, shows the entrance to the back room where Lorie Lee Lance was found. Smoke deposits are visible on the edge of the door. The back door to the house was boarded up at the time of the fire.

Photo: Courtesy of Claude Francis Garrett

In fact, there have always been reasons to doubt that the door was locked. There was the police report that was withheld from Garrett’s defense at the first trial, in which Fire Captain Otis Jenkins said that the door was unlocked. But even without this, Jenkins — the only firefighter who directly testified to this critical piece of evidence — never had the most convincing recollections. At Garrett’s first trial in 1993, he testified that he had to “turn and move a knob to get the door open,” even though the door had no knob. Was it possible the door was “just jammed”? Garrett’s attorney asked. “I wouldn’t rule that out,” Jenkins said, but he insisted he was almost certain the door was locked. At the 2003 retrial, Jenkins testified that he “shuffled something or did something to make the door open,” but he could not recall what.

In court rulings upholding Garrett’s conviction, reviewing judges have relied on Cooper’s recounting of what Jenkins supposedly told him: that he “had to use two hands to slide the bolt on the latch to the other side to open the door.” But at the retrial, Jenkins said he did not even remember Cooper. In its 2016 report on the fire, the Tetrahedron Committee found that his testimony should be “viewed very skeptically.” For one, there was the “near-zero visibility, high heat, and confusion” of a fire scenario. Then there was the fact that firefighting gloves are designed for protection and not conducive to operating a latch as small as the one on the door. “The difficulties of opening a latch in firefighting gloves was never addressed and demonstrated at trial,” the report noted. Finally, it flagged the exculpatory statement attributed to Jenkins and withheld by the state at the first trial: that the door was unlocked. “Given what we know from memory research, the original recollection is the most credible source [of] information,” the experts said. “That is not to say that Capt. Jenkins was knowingly lying about the latch position. However, we must be cognizant of the effect of potential suggestion by investigators and prosecutors on a witness’s recollection.”

Jenkins, who is long since retired, has not responded to numerous messages or a note left at his home. Nor has he acknowledged the expert reports from Lentini and the Tetrahedron Committee, which I mailed to him last fall. While there is no reason his memory would be sharper decades after the fire, there is very good reason to revisit the question of the door. Should the CRU eventually take up the case, it would do well to consider a key finding in Lentini’s report, one that only recently reminded me of something Garrett told me years ago: the reason he bought the cheap latch in the first place was because the door had a tendency to swing open. A photo included in Lentini’s report shows heavy smoke deposits on the edge of the door — the part that would presumably have been shielded by the door frame had it been closed during the fire. Garrett’s conviction rests on the claim that he locked Lance inside that room and left her to die. But the smoke deposits debunked this, according to Lentini. Not only was the door unlocked, he wrote, “it was not even closed.”

The post Fire Scientists Say the Arson Case Against Claude Garrett Was Fatally Flawed. Will Anyone Listen? appeared first on The Intercept.

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.”

Listen to the full Murderville podcast now exclusively on Stitcher Premium. Sign up for a 30-day free trial with promo code MURDERVILLE. Starting December 20, the series will be available for free on Apple PodcastsGoogle Podcasts, and other platforms.

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.

taco-bell-1544851694

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.

hercules-brown-yearbook-02-1544762611

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.

mason-1544762816

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.

donna-car-mask-1544763351

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.

kwame-letter-1544763512

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.

mask-1543803030

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.”

Listen to the full Murderville podcast now exclusively on Stitcher Premium. Sign up for a 30-day free trial with promo code MURDERVILLE. Starting December 20, the series will be available for free on Apple PodcastsGoogle Podcasts, and other platforms.

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

hercules-1543805686
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.

hercules-1543805686

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.”

grass-1543806060

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.

crime-scene-1544407111

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.

brown-car-1544407351

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.”

Listen to the full Murderville podcast now exclusively on Stitcher Premium. Sign up for a 30-day free trial with promo code MURDERVILLE. Starting December 20, the series will be available for free on Apple PodcastsGoogle Podcasts, and other platforms.

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.

adel-hand-1543735428

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.

tacobell-parking-lot-1543735735

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.

diagram-1543804356

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.

burgess-1542486938

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.