Thursday, July 28, 2011

Ten Years Too Long Gone

I received a comment from Anonymous on my post Today I am Ten Years Gone. I'll share it then discuss it.
Having read quite a bit on the Case case since hearing about it from your blog, i must say that I have serious doubts as to Byron's version of events. Can you explain any alternative theories as to what happened that night that do not involve a lie in Case's presentation of his facts?
I summarize the case quickly for those of you not familiar with it. Then I'll respond to the claim that Byron's case is built on lies. Finally, I'll provide the obvious explanation of Anastasia's death.

Byron Case is serving life without parole in a Missouri prison for the murder of Anastasia Witbolsfeugen. She was shot in the nose from point blank range, late at night in a remote and unlit cemetery. Her boyfriend, and Byron's best friend, was Justin Bruton. The same day (or the day after) Anastasia was shot, Justin put a shotgun in his mouth and pulled the trigger.

The one other player in this terrible real-life drama is Kelly Moffett. Kelly was Byron's girlfriend. The four of them were a close group of messed up teenagers. All had attempted suicide before. All had used drugs and two of them (Justin and Kelly) at that time still abused drugs.

Byron and Kelly each tell essentially the same story of what happened that evening. Justin was supposed to meet Anastasia at a cemetery, but he blew off the date. After repeated calls from Anastasia, Justin decide to make the drive out to the cemetery to meet her. Not wanting to face her alone, he took Bryon and Kelly with him. This did not sit well with Anastasia, who wanted to once again speak alone with Justin about their on-again, off-again relationship.

The four of them stopped in the cemetery when it was getting dark. As Justin and Anastasia were getting out to talk, while Byron and Kelly waited in the car, the groundskeeper pulled up behind them and chased them from the cemetery. As they were driving back to Justin's condo, Anastasia asked Justin why he didn't love her anymore. Justin replied he didn't know why. As they pulled to a stop at a stoplight, Anastasia got out of the car, slammed the car door and started walking in the direction of her house. None of the three left in the car said anything. Justin dropped Kelly off at her house, then dropped Byron off at his house.

Neither Byron nor Kelly ever again saw Anastasia or Justin alive. Neither had any idea what happened after they separated that night.

That is the story they both told repeatedly and consistently for three years. As Kelly's drug problem became worse, to the point her parents threw her out of the house, Byron and Kelly's relationship deteriorated. Near the end, Byron once hung up on her during yet another argument. She called the police and reported that her boyfriend was suicidal, threatening to kill himself with an overdose of sleeping pills. The police responded to Byron's house and searched for the sleeping pills. They found none. They took Byron to a mental hospital for mandatory 23-hour observation. All of the professionals who examined and observed Byron opined that he was definitely not suicidal.

Kelly, as it turns out, was (and perhaps still is) a serial accuser. She has accused multiple people (including her father and her husband) of abusing her, of being suicidal, of committing murder. Only the last charge was ever believed.

After being wrongfully incarcerated in a mental hospital for a day, Byron decided to leave Kansas City entirely to get away from Kelly. He told her was moving to St. Louis, but would not provide his phone number or address. Six days after he left, Kelly and her attorney met with the Jackson County Prosecutor. After three years, she changed her story about what happened that night. She claimed that after being chased from the first cemetery, they went to a second. There, while Anastasia and Justin argued outside the car, Byron pulled a double-barrel shotgun from the trunk and shot Anastasia from behind, from a distance of five feet.

It took a year before the police arrested Byron, and it took the State another year to try him. Those stories are too long to be detailed here. You know the outcome, however. Despite the complete lack of forensic evidence, despite the physical impossibilities of Kelly's story, the jury found Byron guilty of first degree murder and armed criminal action. He his actually serving two life sentences without parole, one for each charge.

Regarding Anonymous' suggestion that Byron's story is based on lies, note that Byron and Kelly told the same story repeatedly and consistently for three years. Be aware also that Kelly's changed story fails spectacularly on multiple grounds such as timeline, ballistics, spatial relationships, and time of death. I discuss all these in The Skeptical Juror and The Trial of Byron Case. Here I'll summarize just a single hard fact that impeaches Kelly's latest version of events.

The State's case against Byron rests entirely on the testimony and credibility of Kelly Moffett. For Kelly's story to be true, Anastasia must have been murdered around 7:30 PM on October 22, 1997. Anastasia's body was discovered at 3:44 AM on October 23, 1997. Her eyes were still opened.

This observation intrigued me. As it turned out, it convinced me that Byron was factually innocent and that Kelly was lying. I searched long and hard for any significance that might be associated with the eyes remaining open postmortem. I learned something significant that had never been mentioned at any point in Byron's entire case history. I learned that if the eyes remain open after death, the corneas cloud over within 2 to 4 hours.

Anastasia's corneas were clear when she was discovered, and her eyes were open. She must have been killed near or after midnight. She could not have, absolutely could not have been killed anywhere near 7:30 PM the previous day.

I have been working to free Byron Case for 18 months now, maybe more. I speak to him once every two weeks for 90 minutes, and we spend almost all the time talking about the next step in seeking his freedom. I still spend substantial time beyond the phone call working on his case.

I am, as my readers might by now be aware, quite skeptical. I check what I can six ways from Sunday. I will tell all of you here and now that in all my conversations with Byron, I have never caught him in a lie. I have tried. I have failed.

I don't, however, believe in Byron's innocence because of what he tells me. I believe in his innocence because of the hundreds and hundreds of hours I have spent pouring over the case documents. Nowhere in those case documents can I find anything that puts a lie to Byron's story.

I do, however, find issue after issue that puts a lie to Kelly's revised story. Other than the corneal cloudiness issue, I won't discuss them here. I'll leave them to be read in my book.

So ... 

I have now explained how Byron came to be charged, summarized just one of the many reasons I believe Byron to be factually innocent, and responded to the suggestion that Byron's story is based on lies. I'm left with one task, to provide an alternate explanation for Anastasia's death.

Such a request, of course is a trap. Anyone of us charged with a crime has no obligation to explain how the crime was actually committed. It is not our responsibility, nor are we usually in a good position to build an alternative case. Any suggestion that someone might be guilty because they can't provide a viable theory of how the crime might otherwise have been committed is absolutely counter to the very foundations of our society.

I will nonetheless fall prey to the wily Anonymous. I'll venture to explain my theory regarding the death of Anastasia Witbolsfeugen. It is neither clever nor convoluted. It is simple and obvious.

Anastasia Witbolsfeugen died as part of a suicide pact. There is no doubt that Justin Bruton killed himself. There is also no doubt that Anastasia was suicidal, in the extreme. Again, I'll leave most the details of her desire and attempts to kill herself to my book. Here, I'll simply close by quoting from a letter she left on Justin's computer a couple days before her death.
I wish I could kill myself. I wanted to do it before but I couldn't because I firmly believe that you would come back to me. I hate life. Life is a big joke to be played on the ones who don't want to feel it. I never wanted to feel life.

Tuesday, July 26, 2011

Binary Justice

Wrongful conviction work is a binary endeavor. Either the person wrongfully convicted is freed or he is not. It's of little consolation to say "We'll, we gave it a good shot."

Any success story is a result of years of enormous effort by dedicated, talented, selfless people almost always working pro bono. And should they ever succeed, the State is apt to say "It just proves the system works."

I have enormous respect for those few people who have ever managed to help free someone wrongfully convicted. I have enormous respect for those many people who helped free Cory Maye. Cory Maye has walked free, as I predicted he would.

Radley Balko has pictures at his site. You could do a lot worse than spend some time checking out his blog.

Tuesday, July 19, 2011

The Impending Execution of Andrew Grant DeYoung

Andrew Grant DeYoung sits on death row awaiting execution on 20 July by the people of Georgia. He was convicted of murdering his family. I offer the following case summary from the 11th Circuit Court decsion in DeYoung v. Schofield.
On June 14, 1993, DeYoung murdered his parents, Kathryn and Gary DeYoung, and his fourteen-year-old sister Sarah DeYoung. DeYoung planned the murders with David Hagerty. DeYoung told Hagerty he wanted to kill his family to get money to start a business. 
DeYoung and Hagerty planned to kill DeYoung’s parents, his sister Sarah, and his sixteen-year-old brother Nathan by slashing their throats and then to set fire to the family’s home to cover up the evidence. On the night of the murders, DeYoung went upstairs, where his parents and sister were sleeping, and sent Hagerty to Nathan’s downstairs bedroom. 
DeYoung stabbed his mother repeatedly while she was sleeping in her bedroom upstairs; her screams awakened his father. As DeYoung struggled with his father, DeYoung’s sister Sarah came to the doorway of their parents’ bedroom. DeYoung slashed his father to death, and then stabbed and killed Sarah in the hallway. Hagerty heard a commotion upstairs, and changed his mind about killing Nathan. 
Nathan heard stomping and banging noises coming from upstairs, and he heard his sister cry out and call his name. Upon finding that the phone was dead, Nathan escaped through his bedroom window ... 
Instead of setting the house on fire, DeYoung and Hagerty searched for Nathan. Meanwhile, Nathan fled to his neighbor Keith Harmon’s home. Nathan returned minutes later to the DeYoung house with Harmon, who brought a gun. Harmon saw DeYoung in the driveway and called out to him, but DeYoung fled. Harmon had been the DeYoungs’ neighbor for about five years at the time of the murders. Harmon knew DeYoung and his siblings, and Nathan was a close friend of Harmon’s stepson. 
Police arrived and found Gary, Kathryn, and Sarah DeYoung’s bodies. Sarah had scores of stab, cutting, and slash wounds on her neck, back, chest, arms, and hands. The wounds to the back of Sarah’s neck overlapped so much it was impossible to count them. There were at least seventeen wounds on Sarah’s back, several of which had prominent hilt marks. The blood spatter patterns indicated Sarah was on the ground while most injuries were inflicted. 
Kathryn DeYoung, like Sarah, had many stab wounds and cuts on her neck, back, and torso. Among them were a seven-inch-long cutting wound on her thigh and a five-inch-deep stab wound on her back that penetrated into her chest and completely severed her aorta. One wound in her neck cut all the way through her trachea and also severed her left carotid artery and left external jugular vein. Kathryn had wounds going across her chest and wrapping around her right side, consistent with being attacked while lying down and rolling away from her attacker. 
Gary DeYoung suffered numerous wounds to his face and upper torso. He had a cut over his right eyebrow ridge, a deep stab wound in front of his right ear that fractured his jaw, stab wounds in his upper arm and neck, and numerous stab wounds to his chest. Gary also had two wounds on his right thigh, a six-inch-deep wound on his back, and a large chopping-type wound on his right biceps. 
Several hours after the murders, DeYoung returned home. Police noticed “scratches and abrasions present on his face, neck, hands and right arm.” At the police station, DeYoung gave a statement, later played at his trial, in which he told police he had spent the night at Hagerty’s house and denied involvement in the murders. Id. DeYoung said he went for a two-hour walk in the middle of the night and got the injuries when he fell down. 
The police interviewed Hagerty, who admitted participating in the crimes. Hagerty led police to evidence, including a footlocker and box he had helped DeYoung hide three days earlier, a knife consistent with the victims’ wounds, and a hand-drawn map showing the route to the DeYoungs’ home. The footlocker contained, among other things, personal notebooks written in DeYoung’s handwriting, articles or books with DeYoung’s name on them, and the hand-drawn map. The box contained materials for making pipe bombs. 
DeYoung and Hagerty were arrested and charged with the three murders. Hagerty pled guilty and received three concurrent life sentences. DeYoung pled not guilty.
DeYoung's defense seemed to be based on diminished capacity rather than actual innocence. I find no evidence that Andrew Grant DeYoung did not commit the crimes for which he is scheduled to die. I find no interest group arguing that DeYoung may be factually innocent. I find no report that even Andrew Grant DeYoung himself claims not to have killed his family.

I oppose the execution of people who might be factually guilty of the crime for which they are to die. If it is absolutely clear the person is factually guilty, I neither support nor oppose the death sentence. In those cases, I stand mute.

In the case of Andrew Grant DeYoung of Georgia, I stand mute.

ADDENDUM: The court has postponed DeYoung's execution by one day, until 21 July.

ERRATUM: As per the comment to this post, I have corrected DeYoung's name from Grant DeYoung in my last three paragraphs to Andrew Grant DeYoung.

Thursday, July 14, 2011

A Million Bees Stinging My Face

Mark Stroman sits on death row awaiting execution by the people of Texas. There is no doubt he is guilty of cold blooded, wanton murder. He admits to his crimes. I will therefore not oppose his execution. Nor will I support it. I will stand mute.

Frequently when I describe the details of the crime, I rely on an opinion from an appellate court. Here, in this case, I rely entirely on the words of Raisuddin Bhuiuian, a great American.
My name is Rais. I was born in Bangladesh. I came to the United States to fulfill my lifelong dream to pursue higher education and to experience the American Dream. But within a short time my life was completely changed due to one single incident. The lesson I learned from that incident transformed my life and motivated me to educate people against hate crime.
It was Friday 12:30pm, September 21, 2001. A man with a gun entered the gas station where I was working. He asked me -
“Where are you from?"
The question seemed strange to ask during a robbery, which certainly this was -- the man wore a bandana, sunglasses and a baseball cap, and aimed the gun directly at my face as I stood over the gas station register. “Excuse me?” I asked. As soon as I spoke I felt the sensation of a million bees stinging my face, and then heard an explosion. Images of my mother, my father, my siblings and my fiancé appeared before my eyes, and then, a graveyard. I didn’t know if I were still alive. I looked down at the floor and saw blood pouring like an open faucet from the side of my head. Frantically, I placed both hands on my face, thinking I had to keep my brains from spilling out. I heard myself screaming, “Mom!” The gunman was still standing there. I thought, “If I don’t pretend I’m dead, he’ll shoot me again.”
This was not a robbery but it was a hate crime. It was just after the tragedy of the World Trade Center on September 11th. The man with the gun was Mark Stroman, a white supremacist, and he was in the middle of a shooting rampage to express his anger towards those of Middle Eastern descent. He shot and killed Waqar Hasan, a man from Pakistan, on September 15; he shot me, a man from Bangladesh, on September 21, 2001, and shot and killed Vasudev Patel, a man from India, on October 4. All the victims were shot while working at gas stations and convenience stores in Dallas.
This incident changed my life, and has helped me to realize that hate doesn’t bring a peaceful solution to any situation. Hate only brings fear, misery, resentment and disaster into human lives. It creates obstacles to healthy human growth, which, in turn, diminishes society as a whole. Mark Stroman’s hate only brought more pain and suffering to an already mourning nation.
For his actions, he was found guilty on April 4, 2002 in the death of Mr. Patel, with a scheduled execution date of July 20th, 2011.
I am requesting that Mark Stroman’s death penalty be commuted to life in prison with no parole. There are three reasons I feel this way. The first is because of what I learned from my parents. They raised me with the religious principle that he is best who can forgive easily. The second reason is because of what I believe as a Muslim, which is that human lives are precious and that no one has the right to take another human’s life. In my faith, forgiveness is the best policy and Islam doesn’t allow for hate and killing. And, finally, I seek solace for the wives and children of Mr. Hasan and Mr. Patel, who are also victims in this tragedy. Executing Stroman is not what they want, either. They have already suffered so much; it will only cause more suffering if he is executed.
The other victims in this tragedy are Mark Stroman’s children. Not only have the Hasan and Patel children lost their fathers, but, if executed, Stroman’s children will lose their father also. I forgave Mark Stroman many years ago. In fact, I have never hated him. I never hated America for what happened to me. I believe he was ignorant, and not capable of distinguishing between right and wrong, otherwise he wouldn’t have done what he did. I think about him waiting in a cell to be executed, and can feel the pain of how ignorance can be driven by such hate, and cause somebody like him to murder two completely innocent people.
I believe that by sparing his life, we will give Mr. Stroman a chance to realize, through time and maturity, that hate doesn’t bring a peaceful solution to any situation. Perhaps, if given the opportunity, it might generate such a positive influence on him that he may want to become a spokesperson against hate crime.
I strongly believe that there are important reasons why God spared my life. I feel driven to bring an awareness of hate crimes to others. Hate crimes of ALL types. To educate those who may be as ignorant as Mark Stroman, and raise a consciousness among people that hating others can never bring lasting peace and satisfaction.

Tuesday, July 12, 2011

The Impending Execution of Thomas West

Thomas Paul West sits on death row awaiting execution by the people of Arizona on Tuesday, 19 July 2011.

Thomas West admits he killed Donald Bortle while burglarizing Bortle's home. The appellate court summaries are unnecessarily long, and I'll quote instead from the AP story I found at The story discusses West's appeal to the clemency board.
In West's petition to the board, defense attorney Dale Baich wrote that West does not deny killing Bortle and is extremely remorseful. He said West's father was verbally and physically abusive and that West was sexually abused by a teacher, a neighbor and a priest at various times in his childhood.
He said West also was recently diagnosed with post-traumatic stress disorder because of his past.
"These sexual predators forever scarred and changed him as a human being," Baich wrote. "Tom offers these facts not to excuse his crime, but to provide an explanation that puts his actions into context."
Prosecutors have said in court filings that West's past abuse "was irrelevant to the circumstances of the murder."
"West murdered Bortle in order to complete his burglary of Bortle's home," prosecutor Jonathan Bass wrote. "He severely beat Bortle's face with a blunt instrument, bound his hands and feet with a vacuum cleaner cord and lamp wire, and threw him in a closet, where he bled to death."
West reported having a vague memory of the crime, and said he "freaked out" when he saw Bortle appear in a hallway as he was robbing his home.
"I can't believe I did this, but I know I did," West said in March. "He did nothing to deserve this."
I don't doubt that West is guilty of the crime for which he is to die. I will therefore stand mute regarding the propriety of the death penalty in his case.

I will admit, however, that this one bothers me a bit more than usual. I'm not sure why. Perhaps it's because he seems sincerely remorseful. Perhaps it's because his crime, vile as it was, was not the worst of the worst. I can't quite put my finger on it.

It's not the first time I've had this feeling. A year ago I wrote extensively of An Unexpected Touch of Sympathy for Ronnie Lee Gardner.

I need to keep reminding myself to conserve my time and energy for those who are factually innocent.

Still ...

Sunday, July 10, 2011

The Impending Exection of Kenneth Smith

Kenneth Smith sits on death row awaiting execution by the people of Ohio on 19 July 2011. He and his brother Randy Ray were convicted of killing Lewis and Ruth Ray. Both confessed to the murders. Items taken from the murder scene were found in their possession. Miscellaneous witnesses testified about the Smiths' plan to rob the Rays, and their later boasts that they had killed the Rays. There is no possibility that Kenneth Smith is factually innocent of the crime for which he is scheduled to die.

I provide the following summary of the case from Kenneth Smith's automatic pre-execution clemency hearing held on June 23, 2011. I quote from the section entitled Applicant's Statement.  I'll annotate as I see fit.
On June 7, 2011 an interview was conducted by six (6) Board Members with the applicant via videoconference from the Corrections Medical Center.
This isn't about the case, actually, but it's silly to write six (6). If the word "six" is clear, then there is no need to add the parenthetical (6). If the word six is not clear, then just use 6.
The applicant told the Board that he was truly sorry for his crimes and that he takes full responsibility for his actions that led to the deaths of Lewis and Ruth Ray. The applicant stated he is asking for clemency for his family, his kids and his church because his life has meaning to them. He is requesting clemency in the form of a commutation to life without parole. The applicant explained that he has two children, a son and a daughter, and one grandchild. He related that he has become a better person in the last 16 years, has stayed out of trouble, and has joined the Catholic Church where he is an active member.

The applicant explained that this offense occurred after a day of drinking and ingesting over 100 different pills. He was with friends and had tried to purchase marijuana but he was unable to do so. While he was at a local bar with his brother Randy Smith, the two began discussing their money problems. As they continued to drink whiskey, his brother suggested that they rob Lewis Ray in order to get money. The applicant stated he knew Lewis Ray had just acquired several saws that were being kept in his backyard under a tarp, and that instead of robbing them, they should go steal the saws so they could sell them to pay their bills.
There is evidence that Kenneth Smith carried a hammer as he approached and entered the premises of Lewis and Ruth Ray. There is also evidence that Kenneth Smith struck Lewis Ray at least 27 times with a hammer.The possession and use of this hammer indicates that Kenneth Smith is lying when he testifies that he intended only to steal some saws.
The two drove to Mr. Ray's home, but parked down the street. When they got to the house and opened the gate, a motion detector went off and alerted Mr. Ray. When Mr. Ray came to the door, applicant and Randy Smith went into the house. While the applicant and Mr. Ray were seated at the kitchen table they began to argue about a friend of the applicant who owed Mr. Ray money. The applicant stated Mr. Ray hit him with a coffee pot and the two began to struggle. The applicant then grabbed a hammer from nearby and hit Mr. Ray. The two were wrestling and the applicant stated he doesn't remember much after that.
Kenneth Smith remembers that the victim hit him with a coffee pot, but does not remember that he [Kenneth] sliced Lewis Ray's neck from ear to ear with a large knife.
Then next thing the applicant remembers is looking for Randy and finding him in the bedroom filling up a pillow case with property from the Rays.
At this point, Kenneth left the part out him instructing his brother to kill Ruth Ray, about his brother strangling her, and about him [Kenneth] kicking Ruth Ray's head in to make sure she was dead.
The two left the house and took the property to James Baker's house. James later took the property to his grandmother's house. The applicant admits he and his bother cleaned up, put the weapons, bloody clothing and victim's wallet into a bag and threw it all over a bridge.
The applicant stated that during his time in prison he has become a better person. He has maintained contact with his children through letters, but they have had limited in-person contact. He has also maintained contact with his younger siblings through letters and did write and recently received a letter from his brother Randy.

The applicant pointed out that he has blocked out a lot of the details of his offense. He admitted this is his coping mechanism as it was such a terrible crime. He also admitted that it is possible that the statements made at the time of the offense may be closer to the truth than what he remembers now. He believes he "had to block out the crime to live with myself' and he "created the story" to cope with what he had done.
I oppose the execution of any person who might be factually innocent of the crime for which they are scheduled to die. In cases where there is no chance of actual innocence, such as that of Kenneth Smith, I neither oppose not support the death penalty. Regarding the propriety of Kenneth Smith's execution, I stand mute.

Thursday, July 7, 2011

Today I'm Ten Years Gone

The title of this post comes from a blog post by Byron Case. You may recognize Byron's name from the title of my first book.

I had never met or spoken with Byron when I began writing of his case. I choose to write about his trial because the case documents were available online from sites maintained by both his supporters and his detractors. I started writing with no opinion as to his guilt or innocence. I wanted the case to unfold before me as if I were a juror at his trial.

It was a naive thought.

While working on the book, I realized that a recorded phone call, instrumental to his conviction, had been seriously  mis-transcribed. The errors were always to the disadvantage of Byron. Always. I approached The Skeptical Spouse and explained my concern. She agreed that I had a moral obligation to contact his appellate attorney and reveal what I had discovered.

My impartiality had come to an abrupt end.

Byron's relationship with his attorney soon thereafter came to an end as his appeal was completed and submitted. I was too late, and I knew too little then to have any impact on that appeal. It was soon denied.

My relationship with Byron, on the other hand, was just beginning. We speak every other Sunday for 90 minutes, at prison long-distance rates. Each time, we talk about the next step in trying to free him from his wrongful conviction. We both know the odds are long, that years will pass before there is any chance at all.

Bryon has his own blog. He types his posts on his SX typewriter, which he says stands for "Sucks." He mails them to someone outside the walls, and that person sees they appear in his blog, The Pariah's Syntax.

In his bio, there on his blog, Byron describes himself as a writer, wrongfully imprisoned. The description is apt. He is indeed wrongfully imprisoned. He certainly can write. In fact, it's no longer a polite secret that The Skeptical Spouse prefers his writing to mine.

Last month, on the 11th day of June in 2011, Byron wrote of his ten year anniversary behind bars. It wasn't one of his cheerier posts. Allow me to quote just a bit of it.
Today I'm ten years gone. ... Three thousand six hundred and fifty-two days spent in the shadow of oppression, denied rudimentary comforts, and tortured by the threat that it will go on and on and on, to the end of me.

Not one of these days has passed without my thinking, This has to end. Something must make it right. I am obsessed with the idea that truth and justice will eventually be done, never mind the universe full of evidence to the contrary. ...

Everyone has a limit on what they can bear. The trick is rebounding from collapse with a sense of purpose. I like to think I keep purpose foremost on my mind. Every day I wake up dreaming of the end. Every day I wonder how I might bring it about. Every day I focus on freedom. Every day I imagine a future in which every damned day doesn't begin and end locked inside a concrete box. I'm not even angry anymore at my ex, Kelly, the pathetic character whose lies put me here -- Æsop taught us we can't begrudge the scorpion for stinging -- I just want back what was stolen. I just want the bad dream to be over. I just want to live.
I will speak with Byron again in 10 days. We will talk about our next step to reverse this wrong.

Wednesday, July 6, 2011

Cory Maye, In Light of New Evidence

Radley Balko has another nice article at The Huffington Post about Cory Maye's impending walk to freedom. In this one, Radley takes us inside the courtroom as the judge is finalizing the agreement between the prosecution and defense. This passage really caught my attention.
[Judge] Harrell then lays out the plea, and asks several times in several different ways if Maye understands and accepts the terms of the agreement. "Yes, sir," Maye says.
Harrell then turns to the prosecution to ask if they're still amenable to the plea. [District Attorney Hal] Kittrell then reads a statement that for Maye, his attorneys and his supporters is one of the more satisfying moments of the last 10 years. Kittrell says that the state's decision to agree to a lesser charge came not only in response to the decision from the Mississippi Supreme Court, but in light of "new evidence" that had come out in recent years.
DA Kittrell could have performed his task without adding the part about the new evidence that had come out in recent years. By adding it, he conceded that the State of Mississippi had, at a minimum, overcharged Cory Maye with capital murder. I give him credit for being an upright guy. As a society, we must be willing to admit when we have wrongfully convicted someone, and we must fight to free them. We should not fight blindly to keep the wrongfully convicted imprisoned, nor to see them executed.

DA Kittrell did not elaborate on exactly what new evidence had convinced them to free Cory Maye. His silence on the matter is both frustrating and tantalizing. It allows me to imagine that some of the original observations and insights I presented in my book played at least a small role in Cory's release. In no means do I want to detract from the real heroes in this saga. Radley Balko, Bob Evans, Abe Fortas, Ben Vernia, and numerous others working long pro bono hours deserve the real credit.

Though I sent unsolicited copies of my book to some of them, I have never spoken with any of them, or any of the family for that matter. I wrote my Cory Maye book as an outsider to the case, as I did my Willingham book. I relied extensively on information that others had uncovered, collected, and made public. Nonetheless, I believe I may have uncovered new, additional evidence of Cory Maye's innocence, as I did in Willingham's case.

From The Skeptical Juror and the Trial of Cory Maye, I offer the lead-in comment to the Notes section of my book.
Originality of This Work
Despite a heavy reliance on those who have worked on this case before me, this book is an original work completed independently of those just acknowledged. No one has yet presented the trial testimony in a format palatable to general readership. No one has deliberated the testimony by means of a fictional jury. No one has provided a comprehensive, alternate scenario for the events as portrayed by the State of Mississippi. Specifically, I am unaware that anyone else has publicly put forth the following possibilities:
That the raid may have been orchestrated primarily by Darryl Graves.
That Ron Jones met with Darryl Graves earlier in the day to discuss and plan the raid.
That Ron Jones and Darryl Graves may have together surveilled the duplex on Mary Street, and that the surveillance may have consisted of nothing more than a simple drive by.
That Darryl Graves may have remained behind at the Prentiss police department while Ron Jones led the raid, and that this behavior caused him to be unable to hear the three gunshots from within the Cory Maye apartment.
That Darrell Cooley may have never kicked or shouldered the front door to Cory Maye’s apartment.
That Ron Jones and Darryl Graves may have planned to enter through the rear door due to difficulties associated entering through the front door.
That Ron Jones may not have been wearing his bulletproof vest.
That Darrell Cooley’s testimony about removing Ron Jones’ vest may be contradicted by Ron Jones’ autopsy report.
That the clothing proffered by the State of Mississippi may improperly represent that worn by Ron Jones on the night of the shooting. More specifically that Ron Jones may not have been wearing a vest, and that had he been wearing a groin pad as shown in the proffer, he may not have suffered serious injury.
That Ron Jones may have entered the rear door of Cory Maye’s unit due to his unfamiliarity with the duplex and issues of left/right confusion.
That the confusion between Terrence Cooley and Phillip Allday at the back of the duplex may have stemmed from the realization that Ron Jones was about the enter the wrong apartment.
That Ron Jones may have used a battering ram to breach the rear door, and this use explains his failure to have his weapon drawn.
That the abrasions on Ron Jones’ fingers may have resulted from his use of the battering ram.
That the 35 degree left-to-right, front-to-rear track of the bullet within Ron Jones body may have resulted from the stance he assumed while using the battering ram.
That the fatal bullet may have traveled nearly parallel to the floor, or only slightly upward, and that it may have struck Ron Jones in the abdomen because he had not completely climbed the steps.
That Buddy McDowell may have had Dr. Hayne mark the entry wound on the finger-abrasion diagram to keep the entry-wound diagram from the jurors, and that he may have done so to keep the jurors from learning that the bullet could have changed its direction prior to entering Ron Jones’ body.
In the end, however, wrongful conviction work is not about those who fight to free the wrongfully convicted. It is about those people who we (as a society) have wrongfully put behind bars. As advocates, we frequently work from easy chairs, while sipping a cool beverage and yelling at the cat. If frustrated, we can go out and walk. When tired, we can sleep in a comfortable bed with someone we love. When nature calls we can relieve ourselves in private.

The quarter million Americans who are today wrongfully behind bars have no such simple freedoms.

A couple years ago, I worked successfully to keep our society (us) from adding one more to the quarter million. Now, every day, I work to free two whom we have already put inside. Every day I work to free Byron Case and Michael Ledford.

Maybe someday I will write something that will free one of them.

Saturday, July 2, 2011

The Impending Walk To Freedom of Cory Maye

Sometimes I'm right, sometimes not so much. Regarding Cory Maye, my prediction was spot on.

I wrote of Cory Maye last year in The Skeptical Juror and The Trial of Cory Maye. I offer first the Prelude to that book, in its entirety:
I got stopped one night. They said I had crack. I didn’t have anything. They hit me. Said they were taking me to jail. Mister Ron Jones showed up later. Asked me if I was okay, and told them not to take me in. He was a good guy. He was a good cop.” -- Resident of Prentiss, Mississippi
As are many rural areas in the country, the small town of Prentiss is suffering a surge in drug-related crime. According to Henry McCullum, Sheriff of Jefferson Davis County, drugs are now the major industry in an otherwise depressed economy. The steady supply of crack, marijuana, and meth enriches the few at the top, sustains those in the middle, and consumes those at the bottom. The illegal drug trade is our nation’s deadliest pyramid scheme.
Perhaps fifty percent of the male population in Jefferson Davis County will spend time in prison before reaching their twenty-first birthday, mostly for drug-related crimes. The homicide rate will exceed that of Detroit.
Unfortunately, the drug economy is but one constituent of the pall that hangs over the small town of Prentiss, and over the county named for the president of the Confederate States of America. The population of Prentiss is primarily white, as is the town’s five-man Police Department. The population of Jefferson Davis County is primarily black, as is the county’s five-man sheriff’s department. The issue of race is omnipresent.
Ron Jones has, for the last four years, worked to solve both the drug and race problems. He has earned the respect of those he serves and protects, regardless of skin color. Among the black community he is known as one of the good ones, perhaps the only good one. Among the drug community, he is known as the K-9 officer, the one with the drug-sniffing dog.
Now, in the waning hours of this first day after Christmas, Ron Jones is prepared to lead his motley team of officers into a darkened duplex to serve yet another search warrant for drugs. He is there based on the word of the town bigot that a large quantity of drugs is stashed inside.
As the rear door is breached, Ron is the first to enter. His announcement that he is a police officer, there to execute a search warrant, is interrupted by gunfire. Ron is struck in the abdomen, just below his vest.
“I’m hit,” he says, making his way back down the steps. The bullet has punctured his aorta. He will bleed to death within minutes.  He falls to his knees.
“Get me to the hospital, I’ve been hit.” He collapses to the ground.
“Good Lord, help.”
From the Postlude, I offered the following summary.
The night was cold and clear and calm. Conditions were ideal for sound transmission over a long distance. Had you been standing on the court house steps that night, when Cory Maye shot and killed Ron Jones, you might have been able to hear the gunshots from a mile distant. If you were inside the police station, you would have instead learned of the shooting over the police radio.

If you had rushed to the duplex, you could have arrived within minutes. Perhaps there, as you stood facing the yellow duplex on Mary Street, you would have seen Darrell Cooley and Stephen Jones struggling to lift the limp and seemingly lifeless body of Ron Jones into the back seat of a patrol car. Perhaps you would have seen Darryl Graves appear from somewhere to help them finish their desperate task. You might have then watched to patrol car race away, lights flashing, siren wailing, as if Ron's life depended on getting to the hospital quickly.

If you had walked to the back of the duplex and stood on the steps as Ron Jones had just minutes earlier, you might have heard an infant girl crying and screaming. At the instruction of the local law enforcement, she would remain unattended and uncomforted until her mother returned home from her night's work at the chicken processing plant.

Standing there, you might have also heard a scared and confused voice apologizing repeatedly, claiming he didn't know it was the police breaking through his door.

And had you laid there on the floor, in place of that scared and confused young man, you might have felt the boots of police officers who would vent their anger and their shame against a handcuffed citizen in their care.
The jury convicted Cory Maye of capital murder. The Court sentenced him to death. Now he will soon walk free. You could almost write today's headlines by quoting from the end of the book's Postlude.
Perhaps next year, a new trial for Cory Maye will take place in the Jefferson Davis County Courthouse on Columbia Avenue, right in the heart of Prentiss. If so, the local populace will divide again along racial lines, as they always have. The prosecution will attempt to exclude blacks from the jury and the defense will try to stop them from doing so. Everyone will behave outwardly, at least, as if race isn't an issue. In some regards, things will be as they have always been in Prentiss.

In the new trial, however, Cory Maye will be represented by a well-funded, well-prepared team of talented attorneys. The State of Mississippi, on the other hand, will attempt to hold together a bruised and battered prosecution theory that has been unraveling ever since Judge Eubanks passed sentence.
This time, Cory Maye's defense team will take the offense. The State of Mississippi will mount a vigorous fighting retreat. It's not clear either side will be able to secure a unanimous vote from the divided citizenry of Jefferson Davis County, Mississippi.

The two factions may instead elect to call a truce under terms that allow each side to claim victory. I predict the State of Mississippi will offer Cory Maye a sentence of time served in exchange for a guilty pleas to the crime of manslaughter. I predict Cory Maye will accept, and will walk free.

And I predict, sadly, that not much else will change in Prentiss, or Jefferson Davis County, or Mississippi.
I believe I may have, in my book, added some insight previously missed. I did provide unrequested copies to the legal firm representing Cory Maye. I am definitely not, however, responsible for Cory Maye's freedom. That credit falls to many other people, some of whom I mentioned in the Acknowledgements section of my book. I'll quote that here as well.
I learned of the case of Cory Maye from the writing of Radley Balko. Balko is an award-winning investigative journalist who writes of criminal justice and civil liberties issues. He is, as of this writing, a senior editor for Reason magazine. [He now writes for Huffington Post.] He writes routinely for Reason and his own blog, The Agitator. His work has been cited by the U.S. Supreme Court and excerpted by the Mississippi State Supreme Court. ... No one deserves more credit than Radley Balko for bringing the case of Cory Maye to public attention.

I acknowledge as well the law firm of Covington and Burling for their pro bono effort to secure an acquittal for Cory Maye. Within that firm, I note specifically  the work of Abe Pafford and Ben Vernia. Pafford learned of the Cory Maye case via the writing of Radley Balko and convinced his firm to assist in the case, despite his junior status. Ben Vernia argued the venue issue before the Mississippi Court of Appeals. The Court granted a new trial based on that issue and that issue alone. Vernia continues to represent Cory Maye even after forming the Vernia Law Firm, also of Washington D.C.

I acknowledge the work of the folks at for their support of Radley Balko as he investigated the case of Cory Maye. I acknowlege them as well for their role in the development of the online documentary Mississippi Drug War Blues that so clearly presents the case of Cory Maye.
Also worthy of substantial credit is Bob Evans, Cory Maye's original appellate attorney. I mentioned him briefly but with unvarnished respect in the Postlude.
After the trial, Cory Maye's family fired Rhonda Cooper. Bob Evans, the original public defender in the case, took over as Maye's appellate counsel. The Prentiss Board of Alderman fired Evans for doing do. Bob Evans nonetheless continued to represent Cory Maye without hesitation or regret.
For a more conventional, after the fact discussion of Cory Maye's impending walk to freedom, see here, here, or here.