I began my reporting of this chapter with an assumption of my own. All the people that Stanford psychologist Jennifer Eberhardt studied were convicted of serious crimes; her study focused only on sentencing disparities between convicts based on their skin tone and features. I assumed, going in, that Ernest Porter and Arthur Hawthorne were guilty.
As I studied the murder of Raymond Fiss and the arrest and conviction of Ernest Porter, however, I discovered a series of troubling issues. The behavior of lawyers, witnesses, and police officers made me wonder whether Porter may have been a victim of unconscious racial bias not only during the sentencing phase of his case, but from the very moment he was arrested.
It turned out, first of all, that the police had interviewed two people who provided an alibi for Porter at the time of the Fiss murder. The police appear to have shared that information with Porter’s defense lawyer, because he mentioned these witnesses in his opening statement to the jury. Inexplicably, they failed to appear as witnesses. Both said later that they would have testified if asked. The witnesses were the parents of a young woman named Meredith Barbour, whom Porter was dating. He was often over at her place. Meredith’s mother, Harriet Barbour, and her stepfather, Jesse Dawson, Jr., were interrogated by police right after Porter was arrested. Both independently said that Porter had come over to their house the night before the Fiss murder and watched a Philadelphia 76ers basketball game. Both said Porter was still in the house the next morning—past the time when Fiss was murdered.
The judge who presided over Porter’s murder trial was Albert Sabo, who would come to be called “the king of death row.” In a quarter century on the bench, Sabo sentenced more people to die than any other judge in the country, according to Robert Dunham at the Philadelphia Federal Defender Office. By the time Sabo retired, his rulings single-handedly accounted for 40 percent of all of Pennsylvania’s death row inmates from Philadelphia—and Philly accounted for half the death row inmates in the state. A disproportionate number of Sabo’s convictions involved defendants who were people of color. The fact that Sabo sentenced so many people to die does not automatically mean those sentences were flawed. What does raise serious questions, however, is that three-quarters of Sabo’s death row convictions have run into trouble during the appeals process—higher courts have found problems ranging from prosecutorial misconduct to improper jury instructions. A federal district court has ruled that Sabo’s instructions to the jury in the sentencing phase of the Ernest Porter trial made it difficult for the jury to take mitigating factors into consideration.
Prosecutors in the Porter trial struck off eight potential jurors who were black. These potential jurors included longtime residents of Philadelphia. One was a former army veteran. Another man had seen a close friend killed and a cousin’s wife raped—the kind of juror who is usually willing to impose harsh penalties. The black potential jurors expressed no reservations about the death penalty. By contrast, white jurors dismissed by the prosecution during jury selection were clearly conflicted about the death penalty.
“People like to say death penalty cases are the worst of the worst,” said Michael Wiseman at the Philadelphia Federal Defender Office, which has represented Porter and other death row inmates who have seen verdicts brought into question by higher courts. “They are usually the product of a prosecutorial judge, an incompetent lawyer, and an impaired defendant.”
Errors in the case surfaced the very moment police arrested Porter. He tried to tell them that his name was not Ernest Porter at all but Theodore Wilson. When the issue came up during trial, the court stuck to the wrong name—in the interest of convenience. (I have retained the name of Ernest Porter in this account because that is the name under which Wilson currently sits on death row. It is not his name, but it’s the name under which the state of Pennsylvania plans to have him executed.)
Porter’s lawyer did virtually nothing to challenge the circuitous nature of the prosecution’s case, and the defense called no witnesses of its own. The gun that police discovered was not in Porter’s possession at the time of his arrest, and was found several days after the Fiss murder. There were no fingerprints found on the weapon, even though police said it had been discarded by Porter as he’d fled the botched jewelry store robbery. More than one robber at Vincent Gentile’s store had had a gun, but the defense did not explore the possibility that the Fiss murder weapon may have belonged to one of the other robbers. The officer who arrested Porter, moreover, did not see Porter throw a gun away; he saw him make a throwing gesture as he ran, and police later found a gun under a car in the area.
Officer Kenneth Rossiter testified that he was certain the man he arrested was the man he had pursued in a lengthy chase, but the officer did not actually see Porter’s face until he found him sitting on a step in an alley. Until that point, Rossiter saw only the back of a running man—and the running man was a block or more away. The police officer acknowledged that he had lost sight of his target several times during the chase, and that he was about half a block away when he saw the running man make a throwing gesture.
“Were you able to see positively what it was that this person discarded?” the prosecutor asked Rossiter during Porter’s trial.
“No. Not positively, no,” Rossiter replied.
Rossiter did not see Porter leave Vincent Gentile’s jewelry store; the police did not get access to the store for several minutes after the robbers fled because they had to be buzzed in. And it was only after Catherine Valente identified Porter on television—after telling police on the day of the murder that she would not be able to identify the killer—that the police linked the jewelry store robbery with the Fiss murder. Porter had been in trouble with the law before, and his fingerprints were on file, so it is not clear why police—who said they’d picked up a fingerprint from the beauty salon and were under intense pressure to crack the case—did not link Porter to the crime before Valente did. Neither Valente nor Angelina Spera, the witness who watched the beauty salon from the building across the street, saw Fiss’s killer touch the exterior of the beauty salon’s front glass door as he entered or exited—but this was where police said they found Porter’s thumbprint.
Vincent Gentile’s testimony identifying Porter as one of the jewelry store robbers and Valente’s identification of him as the man leaving the beauty salon were central to establishing the chain of links in the prosecution’s argument. But right after Porter was arrested, the police showed Valente a photo array that included Porter and several other men, and asked her to try and identify the beautician’s killer. She declined to look at the photos. In court, Valente said she was positive Porter was the man she’d seen leaving the Fiss beauty salon, but at no time did she ever pick Porter from a lineup or photo spread.
The prosecution could have linked Porter to the murder even if Catherine Valente’s testimony and the fingerprint were called into question. Vincent Gentile identified Porter, officer Rossiter saw Porter throw something away that was later found to be a gun, and the weapon was linked by ballistics experts to the Fiss murder. But without a direct way to link Porter to the beauty salon, each of these links was essential to the prosecution’s case.
Much rested on the testimony of Vincent Gentile, who was a respected member of the community. But in 2006, with Porter still on death row—and still maintaining his innocence—Gentile made an extraordinary admission: “On April 30, 1985, my Philadelphia jewelry store was robbed. Ernest Porter was subsequently arrested and charged with the robbery. When I later saw Mr. Porter at the preliminary hearing for the robbery, I did not recognize him. I told a woman who worked in the court that Mr. Porter was not the person who robbed my jewelry store. She said that defendants always look different once they are in court and that the evidence showed that he was the one who robbed my store. Once I was told he was guilty of the robbery of my store, I did whatever the prosecution wanted, which included testifying about the gun at Mr. Porter’s homicide trial as well as at the robbery trial. However,
in my heart, I knew that Mr. Porter was not one of the men who robbed my store.”
Eberhardt’s study pointed a finger at juries who sentenced men such as Ernest Porter to death, but it seems clear that jurors were not exclusively to blame. I cannot help but wonder whether darker skin tone and features not only unconsciously predispose juries to view some convicts harshly, but also unconsciously bias police, prosecutors, and even defense attorneys to weigh some lives more lightly than others.
Ernest Porter has been on death row for nearly a quarter century. I interviewed him several times at the close-security prison near Pittsburgh that houses most of Pennsylvania’s death row inmates. Access to the area where prisoners talk to visitors was controlled by a series of five remote-controlled doors. Fences that seemed at least thirty feet high crisscrossed the prison; they were topped with loops of shiny barbed wire. Guards kept watch from turrets. Visitors were patted down, made to walk through metal detectors, and sniffed by dogs. I was separated from Porter by a solid glass window; we communicated using telephones. He was always in an orange jumpsuit and always had his wrists handcuffed in front of him. Porter had short curly hair, and a mustache. Deep furrows lined his forehead.
He did not seem particularly interested in Eberhardt’s thesis that racism plays a role in death penalty sentencing. “There’s nothing new about this,” he told me on one occasion, as I tried to explain what the psychologist had found. “Wake up. You live in America.”
Porter said the prosecution had initially offered his lawyer a deal—a guilty plea in exchange for life imprisonment.
“I said, ‘You have to be crazy,’” Porter told me, as he explained how he’d expected the trial to show he was innocent.
A number of medical and psychiatric experts over the years have documented that Porter suffered from a range of mental problems, including delusions and mental retardation. (Porter’s defense lawyer presented no medical experts to testify about his mental health, even though the lawyer had access to extensive files detailing Porter’s impairments and his horrific history of sexual and physical abuse as a child. Even if Porter were found guilty, the mitigating information may have headed off a death sentence.) Porter seemed severely impaired to me. His moods were variable; a broad smile could be replaced by a hostile glare in the briefest flash. He was suspicious of everyone. He told me that he expected police to kill Vincent Gentile for retracting his testimony. He worried that his lawyers at the Federal Defender Office in Philadelphia did not have his best interests at heart. He believed prosecutors engaged in a conspiracy with police to have him framed.
He spoke in jerks and stops. He left many sentences—and many thoughts—unfinished. He constantly repeated the phrase “here it is” as conversation filler. He told me it took him hours to understand what his legal papers said; composing a simple note in response was an arduous challenge.
Porter’s account of events on the day of his arrest is light-years from what prosecutors alleged. He told me that he had stepped out to catch a bus and had been caught up in an indiscriminate sweep of African American men by police hunting down the jewelry store robbers. He said he knew nothing about any guns, jewelry store robberies—or dead beauticians. Porter believed the Philadelphia police framed him because an angry public had wanted someone in its crosshairs, and he was a perfect fit for every preconception of a dangerous criminal.
“You need only a few of these cases to run for public office if you are like Ed Rendell,” Porter told me, referring to the city’s then district attorney, who is now the Democratic governor of Pennsylvania. It is ironic, but the man who helped put Porter on death row might be the only person to stand at the eleventh hour between Porter and a lethal injection.
Porter’s legal case is in a strange limbo. A federal district court upheld a plea filed by the Federal Defender Office that said Judge Sabo’s jury instructions during the sentencing phase were flawed, and the federal district court ruled that Porter should not be executed. But the court simultaneously upheld Porter’s guilty conviction after prosecutors argued that the case stood regardless of Sabo’s poor instructions and Gentile’s retraction. Porter’s lawyers went to the federal appeals court for the third circuit to argue that Porter ought to be exonerated; the state of Pennsylvania, meanwhile, appealed to the same court to argue that Porter was guilty and that he deserved to be executed.
Porter remains on death row as of this writing, pending the outcomes of these cross appeals. Each day, he told me, he wakes early, exercises, and has a “birdbath” in his sink. After breakfast, he spends a couple of hours outdoors, locked in a cage with another death row inmate. The cage is about eight feet high, seven feet long, and five feet wide. He gets a basketball, but is told that it is a security violation if the ball slams against the cage. He spends the rest of the day and night in his cell. On weekends, Porter spends twenty-four hours a day in his cell. He gets to shower on Mondays, Wednesdays, and Fridays.
Porter told me his cell is eight feet long and six feet high. It has a solid door and two small windows. (The prison declined my request to visit Porter’s unit.) When Porter places his ear at a vent, he indistinctly hears the voice of the inmate in the next cell. He told me he talks at length to the walls and the floor.
Porter reiterated his innocence repeatedly, but conceded his account was unlikely to be believed. If his version is true, it would imply a conspiracy involving several members of the Philadelphia police department, all the way from fingerprint experts to homicide detectives, with possible collusion from prosecutors. I have asked myself many times whether I believe Porter, and I must say I am not convinced. But perhaps that is the wrong question. The real point is not whether I believe Porter’s claims but whether I believe the prosecution’s claims. Is the case against Porter as airtight as we would like a case to be before we execute someone? I have a difficult time saying the answer to that question is yes.
Porter painted a picture of city and police misconduct that seems unbelievable—except that ten days after he was arrested in 1985, the same city and police department bombed their own town. With permission from the mayor, police dropped a bomb on the rooftop of a small radical group known as MOVE. The fire that resulted burned down sixty-one houses and killed eleven members of the group, including five children. Over the span of two decades, the city of Philadelphia has spent upward of forty million dollars investigating the events that led to the bombing, paying settlements to victims, and rebuilding. The city block the police so recklessly razed was in predominantly black west Philadelphia.
“My whole life is wasted for crimes I never even done,” the man the state of Pennsylvania calls Ernest Porter told me. “You go to sleep with death on your mind and you go through your day with death on your mind. It’s enough to drive you crazy.”
CHAPTER 9
Disarming the Bomb
Politics, Race, and the Hidden Brain
In 1994, the psychologist Anthony Greenwald at the University of Washington was exploring links between unconscious mental associations and attitudes. I’ve talked about such associations before. Our hidden brain notices discrete things that regularly appear together and associates them—every time we see one thing, it prompts us to expect the other, too. We associate insects with stings and annoyance, rattlesnakes with bites and danger, and a garbage dump with disgust. There is nothing mysterious about this. Over the course of our lives, we have seen innumerable links between insects and stings, snakes and danger, and garbage and rot.
Greenwald guessed that if he gave people a word, they would be faster matching concepts that were associated with that word than concepts that were not associated. It should be easier to bring “America” to mind when someone said “baseball” than when someone said “badminton.” Greenwald designed a word association game. He put the names of a number of flowers in a list with the names of various insects, and then threw in a number of positive and negative words such as “beauty,” “love,” “nasty,” and “ugly.” Unsurprisingly,
he found it very easy to group “roses” and “tulips” with “beauty” and “love,” and “cockroach” and “beetle” with “nasty” and “ugly.” When he put all the words in a single list and timed himself as he put a check mark next to all the flowers and the positive words, he completed the task a little faster than when he tried to check off all the flowers and the negative words. Every time his hidden brain heard “rose” or “tulip,” it automatically provided him with the positive associations that people usually have with flowers. When he encountered “beauty” and “love,” he checked them off quickly. When he encountered “nasty” and “ugly,” his conscious mind had to connect the unrelated concepts—and resist the hidden brain’s answers. Predictably, this took longer. So far, the test had not told Greenwald anything he didn’t know. Who needs a test to find out he or she associates flowers with beauty?
The Hidden Brain: How Our Unconscious Minds Elect Presidents, Control Markets, Wage Wars, and Save Our Lives Page 21