Over the next two years, George’s team deposed more than 60 witnesses for our civil case. We were bound by the limits of what we could legally ask for in terms of damages or injunctive relief, but these lawyers never had an underlying attitude of “Let’s just get them out of CCR.” It was always “Let’s get them out of prison.” I think that made a huge difference in how George and his team represented us. When George and his legal team were recruited to another firm, Squire Patton Boggs, in 2009, they didn’t abandon us. One of the conditions George made was that he wouldn’t move unless his new firm would continue to represent us.
Meanwhile, Herman and I were dealing with numerous delays in our criminal cases. Scott Fleming filed my postconviction writ in the Louisiana Court of Appeal, First Circuit, in 2002. It took nearly three years for the state court to deny it, on August 8, 2005. It took another year for the Louisiana Supreme Court to deny our appeal of that denial, on September 29, 2006. All together it took seven years from when I filed my original direct appeal in 1999 to “exhaust all state remedies” before I would be allowed to file in federal court.
Herman’s case was also being drawn out. On September 9, 2000, he filed his application for postconviction relief, which went to a state court commissioner. A year later, on September 10, 2001, the commissioner ruled he should get an evidentiary hearing. Two years and nine months later, in June 2004, the 19th Judicial District Court ruled Herman’s claim with respect to Hezekiah Brown was unwarranted and dismissed all the other claims in Herman’s petition. Herman and Nick Trenticosta appealed that ruling to the First Circuit Court of Appeal, in 2005. The First Circuit reversed part of the lower court’s ruling, adopting the dismissal of every issue except for the allegations concerning Hezekiah Brown, ordering a new hearing on that issue.
I didn’t expect anything more. I knew from experience the judicial system is not concerned with innocence or justice. (The state had already recognized I had a meritorious grand jury discrimination claim filed in 1973 but chose to ignore it.) An innocent man could be hanged and the court system would only rule on what kind of rope was used for the hanging. In legal terms this is called “due process.” But the pain of each of our denials in court was magnified for me now because of the men and women who worked on our cases and all of our supporters. I didn’t want them to lose heart. I felt responsible, each time a ruling didn’t go our way, to stay positive, to reach out, to encourage them. I wrote messages that were distributed to our supporters through newsletters and on websites. After my 2006 denial, I wrote,
I say onward with the fight! . . . One must never hope to escape the battle without setbacks or injury. The art of a great soldier is not in his ability to fight but in his ability to maintain his dignity, pride, and self-respect, and most of all, his humanity in his darkest hour! To the friends, family, comrades, and supporters of the National Coalition to Free the Angola 3, I salute you for a job well done. I embrace all of you in my heart, soul, and spirit and I take great comfort in knowing that in the battle ahead for myself and Herman Wallace we will not be alone! Dare to Struggle. Dare to Win!
Herman’s evidentiary hearing took place on September 20, 2006. It was held at Angola. Because so many people had attended his 2004 hearing in Baton Rouge, authorities wanted to try to thin out the crowd in attendance. Still, Herman’s family and many supporters made it there. Nick Trenticosta, Scott Fleming, and Susana Herrero represented Herman, once again before Commissioner Rachel Morgan of the 19th Judicial District Court. They laid out the merits of his Brady claim that he had raised in his postconviction relief application. They showed the commissioner five letters Warden C. Murray Henderson wrote between February 1974 and November 1975 attempting to get a pardon for Hezekiah Brown. They showed her how, even after Henderson left Angola, officials kept his original deal with Brown. In 1978, the warden at that time, Frank Blackburn, wrote to the secretary of corrections, C. Paul Phelps, asking that Brown be paid one carton of cigarettes a week. “This, I feel, would partially fulfill commitments made to [Brown] in the past with respect to his testimony in the state’s behalf in the Brent Miller murder case,” Blackburn wrote. In a handwritten note Secretary Phelps responded, “I concur. Warden Henderson made the original agreement with Brown . . . I think we should honor the agreement.”
Bobby Oliveaux, a retired Angola guard, testified at the hearing that he was told by authorities to make sure Hezekiah Brown did not run out of cigarettes while he was in custody, and that if none were available from the prison, Oliveaux should pay for them himself. Oliveaux also testified that before Brown was released from Angola, he was moved from the dorm at the dog pen into an “outbuilding” with a TV by himself. He was also paid as an orderly but, Oliveaux said, didn’t do any work. Oliveaux said he knew Brown well, that the prisoners he oversaw “were like children” to him. (Oliveaux was the “handler” who was rumored to have been called to the courthouse the day of my 1993 indictment to talk Hezekiah Brown into testifying against me before the grand jury.)
The commissioner was also shown a letter dated December 10, 1984, written by Howard Marsellus, chairman of the pardon board, to Governor Edwin Edwards, recommending clemency for Hezekiah Brown. Marsellus wrote that even though Brown’s request for clemency was opposed by the New Orleans Police Department and the Orleans district attorney, “We . . . recommend that Your Excellency grant applicant a commutation of sentence to time served.”
Less than two months later, Commissioner Morgan ruled in Herman’s favor, recommending the court reverse his conviction. In a 27-page recommendation she found Herman’s conviction was fundamentally unfair because the state suppressed material impeachment evidence. She cited Warden Henderson’s promise to help Hezekiah Brown obtain a pardon for his testimony, expressed by Henderson at my trial, quoting from my 1998 trial transcript, in which my attorney Bert Garraway questioned Henderson:
Garraway: Didn’t you also tell him [Brown] that if he gave you the information and proceeded to testify for the State, that you would also promise to support a pardon application for him?
Henderson: Yeah . . .
Garraway: And did you do that?
Henderson: I wrote letters for him.
Had Herman’s jury known about that deal, Morgan wrote, “it could have seriously affected the jury’s determination of Brown’s credibility.” She continued, “Such a promise, it is fair to say, could have even influenced him to lie if he was so inclined. We should not overlook the fact that Mr. Brown was not just any bystander but had served and was serving time for attempted aggravated rape and aggravated rape, respectively. He was not a newcomer to the prison system or a young naïve man. Warden Henderson’s promise was made to him before he testified at trial.” Herman was elated. We all were. But the commissioner’s report was merely a recommendation, not a final ruling. Judge Michael Erwin of the 19th Judicial District still had to rule.
Now that I had exhausted all avenues in state court I could appeal my conviction in federal court. Attorney Chris Aberle, who won a new trial for King in 2000, wrote my petition for habeas corpus and we filed it on October 11, 2006. The Latin term habeas corpus means “produce the body.” Prior to President Bill Clinton’s signing of the 1996 Anti-Terrorism and Effective Death Penalty Act, which weakened habeas corpus for everybody, it had been referred to as the “Great Writ”—the legal procedure that prevented the government from holding a person indefinitely without showing cause. In my habeas petition we claimed that (i) prosecutors knowingly presented perjured testimony and false evidence at my 1998 trial; (ii) they suppressed exculpatory evidence, including proof that witnesses were lying and evidence of my innocence; (iii) they violated the Confrontation Clause of the Constitution by using and emphasizing out-of-court statements of Chester Jackson; and (iv) racial discrimination tainted the selection of the foreperson of the grand jury that indicted me. This federal habeas petition was assigned to Judge James Brady in U.S. District Court for the Middle District of Louisiana.
The n
ext year, the efforts of George Kendall’s team in our civil case against cruel and unusual punishment began to pay off. In August 2007, U.S. Magistrate Judge Docia Dalby ruled that being locked down at the Louisiana State Penitentiary for three decades could constitute cruel and unusual punishment. In her 50-page decision Dalby wrote: “These men, now in their 60s, do not and have not for some time, presented a threat to the ‘safety, security and good order of the facility.’” She noted that officials cited only the “original reason for lockdown” as the reason we were being held in CCR, even though, as she pointed out, the prison changed its policy in 1996 and eliminated that as a justification for prolonged confinement. “By 1999,” Judge Dalby wrote, “these plaintiffs had been in extended lockdown more than anyone in Angola’s history, and more than any other living prisoner in the entire United States.” Judge Dalby stated that prison officials should have known that “being housed in isolation in a tiny cell for 23 hours a day for over three decades results in serious deprivations of basic human needs.” She noted that lockdown may pass constitutional scrutiny if imposed for short periods of time, but any reasonable officer would know that solitary confinement may violate the Constitution when imposed for going on three decades. Not only had the courts “consistently noted the severity and terrible deprivation associated with such confinement,” wrote Judge Dalby, “it has long been the subject of research, and even of televisions and movies. . . . It is also a matter of common sense that three decades of extreme isolation and enforced inactivity in a space smaller than a typical walk-in closet present the antithesis of what is necessary to meet basic human needs. With each passing day,” she wrote, “its effects are exponentially increased, just as surely as a single drop of water repeated endlessly will eventually bore through the hardest of stones.”
This decision was a huge victory. It didn’t mean that we had won, but now we would be allowed to litigate the question of whether long-term solitary confinement violated the Constitution under the circumstances of our case.
Then, we got devastating news. On September 10, 2007, Anita Roddick died suddenly of a brain aneurysm. I felt hollowed out. Anita, full of life. Anita wanted to transform the world. Her death was so unexpected. I couldn’t get my bearings. She was my friend. King flew to London and spoke at Anita’s memorial service. Herman and I sent statements that were read aloud, expressing our sadness and love. Anita’s husband, Gordon, came to visit us. He was on Herman’s visitors list and coordinated to arrive with someone on my list so Herman and I would both be called out to the visiting room at the same time. He wanted to talk to both of us. He told us he would fulfill Anita’s dream for our freedom and pledged his continued support to the A3. We were touched that in his grief he remembered us and took the time to see us. Gordon and Anita’s daughter, Samantha, wrote to me, asking to be put on my visitors list so she could visit me in place of her mom.
Before she passed away, Anita had told me that great progress was going to be made in our case. After she died, many of her friends and associates, who became aware of Anita’s work for the A3 at her memorial service, stepped forward to help make that happen. Gordon put them in touch with our existing committee through Marina Drummer and they became a de facto advisory board. Organizer Chuck Blitz, a friend of Gordon’s, set up a weekly call on Fridays, bringing everyone together to talk about A3 support strategies. That call would take place every week for the next eight years. Chuck and members of the advisory board worked with Marina to find a part-time coordinator. They hired Tory Pegram, the former director of development and public education for the ACLU of Louisiana, to fill that role.
We now had an enhanced support committee. We had our core “on-the-ground” grassroots supporters, some of whom had been with us for almost 10 years—since my trial—activists who voluntarily managed communications, raised funds, spoke at conferences, staged protests, wrote articles, painted murals, did mailings about us; who visited us, wrote to us, put money in our accounts, accepted our collect calls, called prison officials to ask about our welfare, and sent us puzzles, magazines, and books. And we had this new advisory board that became part of our committee, composed of Anita’s and Gordon’s friends, who were prominent social justice lawyers and experts; social entrepreneurs and business leaders; architects of national political campaigns; national NGO leaders; retired judges; communications professionals; filmmakers and actors, all of whom were no less passionate but who operated in a different stratosphere, through connections in politics and media. The goals of our committee were unchanged: to use our stories to spread the word about the horrors of solitary confinement in America, to get us out of solitary confinement and into the general prison population, and to free us.
I put Tory on my visitors list and she visited twice a month for a year, updating me and Herman on A3 meetings, King’s schedule of events, press reports about us, and the ins and outs of her work for what had now become the International Coalition to Support the Angola 3. It would be impossible to capture it all.
To truly represent all the hours that each person on our support committee and advisory board spent toward freeing us, all the ideas they had, actions they took, sacrifices made, the time and money spent, the frustrations endured, the details of each victory large or small, the pain of each loss—to name all that was done on our behalf would take another book.
Herman and I made a conscious decision to give our supporters a great deal of autonomy. We could not micromanage our committee, the board, or the individual activists who worked on our behalf because of the limitations of being in prison. All our mail was read, our phone calls were recorded, the visiting rooms were bugged. We couldn’t have meetings. Our stance to our supporters was: if you act with integrity, we have your back.
We had a huge legal team, which was completely separate from the support committee, and sometimes at odds with the committee, because often the legal team wanted less exposure, less activism. Sometimes our supporters disagreed with legal strategies. We never asked our legal team to change strategies based on pressures from our supporters. We never asked our support committee to tone down actions that drew attention to our case. We trusted that each group, separately, knew what it was doing, and we wanted to make sure that nobody was ever prevented from contributing what he or she did best.
On October 9, 2007, almost a full year after Commissioner Rachel Morgan issued her recommendation to overturn Herman’s conviction, Judge Michael Erwin of the 19th Judicial District Court denied Herman’s claim that the state had withheld exculpatory evidence that Hezekiah Brown was paid for his testimony before Herman’s 1974 trial. It was the first time in the history of the state, to my knowledge, that a judge did not accept a commissioner’s recommendation. Judge Erwin gave his response to the commissioner’s 27-page recommendation on one page, in one sentence, with no analysis: “This court does not agree with the Commissioner’s recommendation that a valid Brady claim exists,” he wrote. Herman appealed to the Louisiana Supreme Court.
Chapter 45
“Are You Still Sane?”
Social workers used to come around the tier and ask prisoners if we wanted to talk to them. King, Herman, and I made polite conversation with these people but never asked for help. We knew if we did that somewhere down the line it would be used against us. A guard could threaten you with being moved to the Treatment Unit (TU), the “mental ward.” Once you’re taken off the tier to TU you could come back a zombie. The drug of choice for prisoners in those days was Prolixin. I don’t know if they overmedicated people, or if it was the nature of the drug, but Prolixin almost made men immobile. It broke my heart to see men on this drug. It would take them damn near an hour to walk from one end of the hall to another. They stopped taking showers. Their cells became filthy.
Drugs like this were referred to as “chemical restraints.” They killed the spirit. Every once in a while, when there was a security guard on duty who brought his humanity to the job, I asked the guard to open my door and allow me ou
t of my cell to help one of these patients who was out of his cell for his hour. I swept out and mopped the prisoner’s cell and gave him a shower. The prisoner couldn’t do anything but stand there the whole time I washed him. Mentally ill prisoners got no help at Angola. For many years, over the late 1990s and 2000s, CCR was housed within TU. We shared a dungeon and I would see guards gas the mentally ill prisoners being held there because they wouldn’t stop screaming or beating on bars. These men never should have been in the dungeon to begin with. Sometimes security guards would go into the cell and beat on them. I couldn’t see it but I heard the blows.
In preparation for our civil trial Herman, King, and I had to meet with psychologists. The state wanted to show we had “adjusted” to the cells and hoped to document that we were not really harmed by being locked down 23 hours a day for decades. For our side, George Kendall wanted to know the true impact of solitary confinement on us.
Talking about our mental state and emotions was not easy for any of us. In 2003, Nick Trenticosta had asked us to meet with Stuart Grassian, a board-certified psychiatrist and former faculty member at Harvard Medical School who was an expert studying the impact of solitary confinement. Through his extensive research Grassian has documented what he believes is a specific psychiatric syndrome caused by solitary confinement, characterized by panic attacks, paranoia, hallucinations, hypersensitivity, and difficulty remembering, concentrating, and thinking. According to Grassian, even after a brief stay in solitary confinement, “a person can descend into a mental torpor—a ‘fog’—in which alertness, attention and concentration all become impaired.” The inability “to achieve and maintain attention is experienced as a kind of dissociative stupor. . . . The inability to shift attention results in a kind of ‘tunnel vision’ in which the individual’s attention becomes stuck. . . . [Prisoners in solitary can] find it difficult to maintain a normal pattern of daytime alertness and nighttime sleep. Some find themselves incapable of resisting their bed during the day—incapable of resisting the paralyzing effect of their stupor—and yet incapable at night of any restful sleep. Difficulties with thinking and concentration, obsessional thinking, depression, anxiety, agitation, irritability and difficulty tolerating external stimuli [are common.]”
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