We Stand Together
January 1, 2000. Another century. In order to leave Camp J a prisoner needed to go 90 consecutive days at Level 3 without a write-up. King and Herman were 30 days ahead of me in the program, but when they were eligible to leave they refused to leave me behind. The reclass board put them back in their cells at Camp J. This was not only an act of defiance on their part but also unity. King and Herman were so insistent they weren’t leaving without me that when I was eligible to leave the program a month later, prison officials moved me back first. Then they moved King and Herman back a week apart. They put us all on different tiers in CCR.
Support for us from outside the prison had grown while we were at Camp J. At first, people wrote to me because of my trial. When they found out about Herman, they extended their support to him and started writing to him. They wrote to us asking to be put on our visiting lists. We were each allowed 10 people on our list. When my list was full I directed people to get on King’s list. If they coordinated visits with people on Herman’s and King’s lists we could all visit together. When white people started visiting us many of the security officers were shocked. It didn’t compute with their belief system. Our supporters were both black and white. Shana Griffin; Brice White; Anita Yesho; Opal Joyner; former Panthers Althea Francois, Marion Brown, and Malik Rahim; and others were in New Orleans. Marina Drummer, Gail Shaw, Millie Barnett, and Scott Fleming were in California; and Leslie George and Anne Pruden were in New York. While we were locked up at Camp J, with limited access to phone and mail, they formed a support committee and started calling me and Herman the Angola 2. While I was grateful, it didn’t feel right to me. We were three, not two. King was a Panther who was wrongfully accused and unjustly convicted. He made all the same sacrifices that Herman and I made. He lived by the same moral principles we did. We stood together in all the same battles and were beaten, gassed, and locked up the same. He was kept in solitary confinement because of his political beliefs too, for 28 years. The three of us had been through so much together. Now was not the time to separate. I wrote to Herman and asked: Now that we have a support committee, shouldn’t King benefit from it? Shouldn’t we become the Angola 3? Herman agreed.
I practically had to jump King to get him to do it. We were on the yard. He said no. He thought Herman and I should take advantage of the momentum that was growing around the Angola 2; he didn’t want to take any attention away from us. I looked at him. King is one of the most selfless people I know. If he had 1,000 drops of water he’d give them to 1,000 thirsty people and go without. “King,” I said, “we are stronger together. We can’t start letting something come between us now.” “Ask the members on the committee.” he finally said. “If they agree, then OK.” Herman and I wrote to our core supporters asking them to request a contact visit on a certain date. Miraculously those visits were all approved. The guard on duty allowed us to put two tables together in the visiting room so we could sit together. Herman and I told everyone our decision. Nobody objected. The A3 was born. The Angola 2 Support Committee became the National Coalition to Free the Angola 3, and it grew in numbers.
In the meantime, King, Herman, and I had been working on another civil lawsuit claiming that our decades of being locked down 23 hours a day in solitary confinement violated our 8th Amendment protection against cruel and unusual punishment. The Supreme Court had ruled that the Constitution “does not mandate comfortable prisons . . . but neither does it permit inhumane ones.” The suit also claimed that our right to due process was being denied because the 90-day review board at Angola was a sham, a violation of the 14th Amendment. We also stated that our 1st Amendment right to freedom of speech was being violated because the reason we were being held in CCR for decades was our political beliefs. Herman wrote to the ACLU of Louisiana in New Orleans and asked for help. One of the organization’s attorneys, Al Shapiro, got back to us and the ACLU filed the suit on our behalf on March 30, 2000, in state court in Baton Rouge against Louisiana Department of Public Safety and Corrections secretary Richard Stalder and Angola warden Burl Cain, among others. (Later state Corrections defendants removed it to federal court to obtain a whiter jury pool.) Our suit requested an injunction from the court to stop the state from keeping us in CCR, to force the prison to move us back into the general prison population. We also asked for punitive damages as well as attorney fees and court costs.
Our supporters in New Orleans met weekly, sometimes at Malik’s house, other times in an empty church. They held yard sales, and second line concerts to raise money for attorneys and investigators for us. They created posters to make people aware of us. Scott Fleming, who had graduated from law school in 1999; and Leslie George, a producer and reporter for Pacifica Radio in New York, met in New Orleans and worked on tracking down new leads on our case, interviewing former prisoners and looking up old court records. Marina Drummer, in Oakland, secured 501(c)(3) status for our support committee under the name Community Futures Collective, which allowed us to actively raise funds and recruit lawyers and investigators. (Marina would serve as the fiscal and administrative center for our support committee from that time forward.) Others wrote about us on blogs and reached out to mainstream newspapers and TV news programs asking for coverage of us; none responded. The only national newspaper that wrote about us in the early days was Workers World, the newspaper of the Workers World Party. Even without the mainstream press, though, awareness about us grew as former Panthers across the country got involved, as well as prisoners’ rights groups. Anne Pruden, of Brooklyn, became a loyal and dedicated friend, attempting to help us find a lawyer in those early days, even before knowing the details that proved our innocence. Marina wrote to Amnesty International on our behalf in May 2000, and we were placed on Amnesty’s “watch list” of “individuals at risk.”
As our supporters grew in number, and under the pressure of the lawsuit, the Department of Corrections and prison administration started harassing me, King, and Herman. Censorship increased; they wouldn’t let us see a lot of our mail. They started taking more interest in our books and magazines. They said any article or book that mentioned the Black Panther Party was contraband because it was “gang related.” A lot of our incoming mail was “returned to sender” for various made-up reasons. Shakedowns became more aggressive. Herman, King, and I all had the same reaction to the increased pressure: Bring it on. Our personal safety was never an issue in our lives. We were willing to risk anything and everything to uphold our political beliefs. We felt the same way about backing the actions of our support committee. People asked us if they should try to protect us. “No,” we said. “Don’t worry what will happen to us,” I told them. “That is a nonissue.”
For the first time in decades there were people outside prison besides our families who cared about us. People were fighting for us. They didn’t believe the district attorney’s office. They didn’t believe the courts. They didn’t believe the prison officials. They believed us and they believed in us. They trusted us and offered us their friendship. We gave these people our friendship. At first, it was hard for me to answer their letters. I wasn’t used to letting people into my thoughts and life. But one characteristic Herman, King, and I all shared was the willingness—and even need—to change. True change can be very painful because you have to let go of part of yourself. We knew from experience that by changing, we gained more than we lost. We got more awareness. We got more compassion. We used to call it “raising our consciousness.” We talked about how the entire human race needed to raise its consciousness, not as individual races or groups, but as humans, as a species. If we didn’t, human beings would become nonexistent, because we’d destroy one another. Change meant growth.
Now I was being asked to change again, to let my guard down. It always surprised me when I was asked for advice. “Instead of showing you how to build courage,” I wrote in response to someone asking me how to be brave, “I write to you to pay tribute to and salute your courage. I embrace your coura
ge. I lie down every night loving your courage. When I am in need of purpose or focus I thank your courage. Courage is not an ongoing thing that you walk around feeling every day. Like anything in life, it comes and goes with the challenges we meet every day of our lives!”
Chapter 41
Hidden Evidence
In 2000, Scott Fleming came on board and worked for us pro bono. First, he wrote an appeal for Herman, citing the new evidence—the Brady material—that had been kept from Herman but had come up at my second trial: that Hezekiah Brown was paid for his testimony. After Scott wrote Herman’s postconviction relief application (PCRA)—as my direct appeal was wending its way through the state court system—he turned his attention to my case and oversaw the effort that uncovered new evidence supporting our innocence that I could use in my postconviction application. Working with attorneys Nick Trenticosta, Mike Rocks, Susana Herrero and investigator Gary Eldredge, Scott reinvestigated Brent Miller’s murder as thoroughly as possible, 30 years after the fact. One of our first breaks was a statement Howard Baker gave to Mike Rocks, recanting his testimony against Herman. Baker was the prisoner who testified that he saw Herman run from Pine 1 the morning of Miller’s death with blood on his shirt and pants and that he watched Herman dispose of his bloody clothes by burning them in a furnace in the tag plant. No longer in prison, he told an investigator he lied at Herman’s trial to protect himself.
In a new affidavit Baker said that in 1972,
Angola was life and death, buying and selling people, and the officers knew it was happening. . . . Weapons were everywhere. You could shake down for weapons one night and have just as many the next. I saw as many as four stabbings a week, week after week. I was attacked and got 22 stitches in my head and only had an inmate to sew me up. . . . When Miller was killed I wasn’t called in for questioning right away. The word went around from administration that it would be in an inmate’s best interest to say what he knew about Miller’s killing. So I looked at the situation like this, I got 60 something years, and I got a chance to help myself—so I was going to do something to help me get out of this cesspool. So, I gave a statement on 10/16/72, to Warden Dees, which was a lie. And my testimony based on that statement was a lie. I really thought this would help me because Dees told me my statement would get my sentence commuted. . . . Dees just wanted a statement. If they could have hung and burned the guys involved they would have. But there was too much light on the situation. I had heard that Hooks and Woodfox were suspects it seemed like five minutes after Miller was killed. It was all over the penitentiary that they were the ones that administration thought was involved. So I gave a statement. I was surprised that anyone didn’t pick my statement apart. It was foolish to think that anyone could get to the tag plant with blood all over them, especially that day. And there was no furnace in the tag plant to burn clothes. There was only a heater to dry paint on the tags. You could not burn clothes in it and Dees knew that. And Dees knows that you have to go through two manned security checkpoints to get to the tag plant. You could not get there with blood on you. I never saw anyone come out of Pine 1. I was not near Pine 1 at the time Miller was killed. I lied to try to help myself.
Through the Louisiana Public Records Act, Scott Fleming obtained material that was deliberately withheld from me and my defense attorneys at both of my trials, including the original notes that sheriff’s deputies Bill Daniel and Thomas Guerin took interviewing prisoners after Miller’s murder in 1972. He also obtained Julie Cullen’s trial notes, records from the crime lab that did the forensics testing, housing records from Angola, and FBI files on the case. He interviewed several former inmates. He met with lawyers and investigators in New Orleans and Baton Rouge. He examined the process used to impanel my jury and had Mike Rocks study voir dire (preliminary jury examination) notes. Mike researched how grand juries and grand jury forepersons were impaneled in West Feliciana Parish, which was where I was indicted, and looked at the race and gender of nearly every grand juror who served in West Feliciana Parish for 30 years—between 1964 and 1993—in order to prove that, while African Americans served as randomly selected grand jurors in rough proportion to their percentage of the general population, they served in far lower numbers as grand jury forepersons, who were selected, discriminatorily, by white judges. Scott studied forensics testing, researching methods available to test blood, clothing, and fingerprints in 1973 and 1998. He got an expert to look at Paul Fobb’s medical files to assess Fobb’s vision based on the multiple surgeries he had before 1972. He turned over every stone to preserve every issue of ineffective counsel and prosecutorial misconduct he could think of. It’s only because he did such a thorough job that, over the next 15 years, I was able to keep my case before the court.
In the 348 inmate interviews Guerin and Daniel conducted the day after Miller’s death—interviews that the state had refused to hand over before my 1973 and 1998 trials—Scott found significant evidence that the prosecutor was obliged to turn over to my attorneys but didn’t, the so-called Brady material.
To try to get around it during my 1998 trial, Julie Cullen made the deputies’ notes available “in camera,” meaning only the judge could see the notes. Judge Bruce Bennett stated that he would “give it a shot” and read the notes but warned, “I’m not sure that I would recognize what you would perceive to be exculpatory information . . . and I hate to be placed in the position of being the—the gate keeper of exculpatory information. . . . It’s a very uncomfortable position to be placed in.” The judge reminded Cullen, “. . . if I miss something that is exculpatory, then you all are going to have to live with that.” Cullen responded by stating, “I fully accept that responsibility, your Honor.” After the in camera review, the prosecution agreed to turn over only the notes of the sheriff’s interviews with me, Chester Jackson, and Gilbert Montegut. The notes took up half a page.
We learned a great deal of information from the other 345 interviews that would have been favorable to my defense, important leads that the state’s investigators ignored, leads that didn’t point to us. It was as if prison officials and the sheriff’s deputies were so determined to pin the blame on me and Herman that they knowingly and willingly ignored evidence and other leads, which could have proved who really killed Brent Miller. Two of the inmates interviewed by the deputies actually had blood on their clothes when questioned, according to the deputies’ notes, and yet clothing from these inmates was not sent to the crime lab.
Based on their notes, Deputies Daniel and Guerin never questioned Hezekiah Brown, the principal witness who claimed to have seen Brent Miller’s murder. Also, the deputies only questioned 14 prisoners who lived in Pine 1, where Miller’s body was found. They interrogated three times as many prisoners—47—who lived in Hickory 4, where I lived. (Out of all the white prisoners who lived in the Oak dormitories, directly next to the Pine dorms, only seven were interviewed.)
The deputies’ notes also revealed one prisoner had scratches on his “left back, near his shoulder blade”—a finding that deputies and prison officials apparently never followed up. (Forensics reports showed Brent Miller had skin and blood scrapings beneath his fingernails that were never tested.) There was a notation next to one prisoner’s name that said he “heard talking the day before about something. G.K. [the initials of a prisoner] was one in the group talking.” Next to this deputy Guerin wrote a single word—“plott [sic]”—which was never followed up by investigators.
When the deputies interviewed Joseph Richey after Miller’s killing he first told them both that he went to Hickory 4 the morning of the murder and gave an inmate named “Crutches” cigarettes. Daniel wrote: “P-4 [Pine -4] 72037 [Joseph Richey] went to chow then went to hic-4 and gave Crutches some cigs came back to dorm.” Guerin wrote: “Joseph Richey—Pine 4—72037—Gave Crutches cigarettes.” At my trial both Richey and Daniel testified that Richey gave only one statement. By examining prison housing records Scott learned Richey was put in a cellblock after making his initial
statement about giving Crutches cigarettes. After a month in the cellblock he gave a second statement, saying he saw me run from the Pine 1 dorm, after which he was moved out of the cellblock and back into a dormitory. From the housing records Scott also discovered that every prisoner who testified against me got better housing afterward. Every inmate who testified on my behalf was put in more restrictive housing.
In Julie Cullen’s pretrial notes Scott found even more proof that Cullen knew Joseph Richey was lying when he testified he saw me run out of Pine 1 after Miller was killed: he told her he hadn’t “heard” my name associated with the murder until he overheard Chester Jackson’s family talking. The file contained her personal typed note summarizing a conversation she had with Richey, who also went by the name Joseph Bowden. The note read: “When CJ [Chester Jackson] getting ready to testify and JB [James Bowden aka Richey] heard CJ’s family talking was first time really realized that AW [Albert Woodfox] was involved in the murder.” Years later two of Jackson’s sisters would say Chester told them Herman and I had nothing to do with the murder.
In another unbelievable display of deliberate incompetence, Scott found a memo from Warden C. Murray Henderson to the FBI stating investigators found “a pair of bloody tennis shoes” in the area of the dormitory where Brent Miller was killed. Prison officials never sent the shoes to the crime lab; the blood on the shoes was never tested; the shoes were never entered as evidence at my trial or Herman’s. And yet, at one time, the warden must have believed the shoes were key evidence in Miller’s murder because the deputies asked prisoners their shoe size.
The day of Miller’s murder I was wearing a gray sweatshirt, a pair of jeans, and rubber boots. The state always maintained I was wearing a green army jacket, jeans, and a pair of brown shoes that Bill Daniel claimed he seized from me the day of Miller’s murder. Scott discovered from crime lab records that the clothes Daniel claimed he took from me were not submitted to the crime lab until a week after the murder and a week after all of the other evidence in the case had already been submitted and analyzed.
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