“Well, I don’t want to get into that because we’re liable to get confused,” he redirected Holland when Holland mentioned the previous Wise burglary where the old woman had come home. They didn’t bother to ask him (or, it seems, the Wise brothers) anything more about the mystery attack that matched the Crapser case right down to what was stolen, and they were either too dim, too lazy, or too determined to pin the murder on me to have the fingerprint from Emma Crapser’s bathroom window immediately tested against the latent prints they had on file for Donald Wise. Hell, for that matter, if they had investigated Ms. Crapser’s murder right, they could have matched that print to Donald Wise and zeroed in on him from the beginning.
Then Mary King’s life wouldn’t have been taken.
And mine wouldn’t have been, either.
When Ross attempted to find Saul Holland to interview him for himself, he discovered that Holland had been left mentally incapacitated after being tased by police in a confrontation that resulted in a civil rights lawsuit over excessive force. The tape and transcript would have to do.
With the neighbors’ statements about the undamaged door, the empty street, and the banging trash can in the alley; the Dobler report; and the Holland tape, my lawyers had found not just one Brady violation, but several. The WilmerHale investigation had also led to a new witness, a woman named Terri Holman. Ms. Holman recalled several conversations with Madeline Dixon South and two other women about the murder of Emma Crapser. Ms. Holman, who had been dating Madeline’s brother, recalled Madeline telling her how Donald Wise had cased the Crapser apartment by posing as a plumber earlier in the day, and he killed Ms. Crapser because she recognized him when she interrupted his burglary later that night. During my first trial, Madeline Dixon South had testified that Donald and her then-boyfriend Anthony Wise had left her house the night of the Crapser murder, returned later with jewelry, then walked her past 15 North Hamilton the next morning and said it was where their “movie” had taken place. Madeline had passed away before my second trial, but Terri Holman now told my legal team that Madeline had picked through the stolen jewelry and dumped costume pieces into a nearby creek.
IN APRIL 2009, WILMERHALE FILED A MOTION IN DUTCHESS COUNTY COURT for my conviction to be overturned on grounds of new evidence, actual innocence, and the violation of my constitutional right to due process through the D.A.’s withholding of Brady material.
Between two murder trials, every possible appeal, and the crusades led first by the Innocence Project and now by WilmerHale, my entire adult life had hinged on legal motions. I had long since lost count of how many there had been. But this one, I knew, wasn’t just another motion.
This was my last chance to prove I did not kill Emma Crapser.
12
HOPE IS A CHEAP WORD, TOO FLIMSY TO HOLD ITS OWN WEIGHT. Tell me why we have so many words to capture every little variation of the color blue, but none for the hundred different shades of hope? There should be separate words for the hope of a college kid on graduation day and the hope of a cancer patient being wheeled into the operating room. There should be an easy way to explain the profound difference between having hope and dwelling inside it, between Christmas Eve and a murder trial. For twenty-six years, I had made hope my safe haven within hell. I knew that to stop believing was to stop being. I had seen what could happen to men who couldn’t sustain that illusion, to a human being who could no longer find even an inch of “maybe” to hold on to. I’ll never forget a single week during the holidays in 1995, when there were five suicides inside the walls of Sing Sing, one after the other. Four were hangings—one over a woman, another to escape homosexual violence—and one was a white guy who cut both wrists and bled out. Everyone just thought he was sleeping until someone finally noticed the blood pooled under his cot. That same depressing week, another white guy bugged out and cut off his penis and tried to pull out one of his eyes. He survived, though.
I wasn’t a total stranger to suicidal despair myself: I had once hit rock bottom when I was locked up in Poughkeepsie early on. It’s not something I ever talk about. Conditioning myself to be optimistic, to hold on to a positive attitude, took time and perseverance, but my mind had developed the muscle it needed to keep a firm grip. Still, I couldn’t help but wonder how much hope I would have left if WilmerHale lost this final push for my freedom. I told myself not to let my mind go there, to just wait and pray and see what God’s plan was, but that was tough. Ross had warned that we could be in for a wait. First of all, District Attorney William Grady would have to file his formal response to our allegations that his office had suppressed evidence. But aside from a canned quote in the local paper from Grady, who said he intended to conduct a thorough investigation into the alleged Brady violations, there was nothing but the sound of crickets chirping from Poughkeepsie. When Ross called to ask about the delay, no one would take his calls or return his messages. As we waited, the judge assigned to the case recused himself because it turned out he had been an attorney in the D.A.’s office at the time of the Crapser murder. Another county superior court justice took over, and this one finally lost patience when the D.A.’s office blew off filing deadlines and wouldn’t return calls from the judge’s clerk. After nearly six weeks of stonewalling, the D.A. eventually responded to a written reprimand and stern warning from the second judge and filed his papers in early July.
The second judge retired at the end of August.
The third judge, the Honorable James T. Rooney, was actually from neighboring Putnam County, which Ross considered a welcome bit of good news, since Dutchess County had proven to be what lawyers term a “hostile venue” for me for thirty years. Judge Rooney would review the documents from both sides and decide whether to hold a hearing on the merits of our case or to just issue his ruling. Ross was confident that the prosecution’s own records clearly proved that my constitutional rights had been violated, but he was always careful to hedge his bets whenever I asked what our chances were of getting a new trial, let alone an acquittal. When Ross and Shauna Friedman came up for a visit during our six-month wait, Ross’s boss, Peter Macdonald, tagged along. I tried to sound casual when I put the same question to him.
“So what do you think our odds are?” I asked.
“Ninety percent,” he quickly replied. Ross and Shauna exchanged a worried look. It’s not like I started jumping up and down and clapping my hands or anything, but virtually promising victory to a client—much less one who’s been waiting half his lifetime for justice—was a bold thing to do. The added pressure from their managing partner was probably the last thing they needed at that point, since I was their first criminal case, and neither Ross nor Shauna had made their courtroom debut as a lawyer yet. WilmerHale had already spent more than $1 million on my case, and the investment was as personal as it was professional—Ross drafted part of the brief working eight hours a day on a Caribbean vacation, and Shauna had sacrificed a lot of time with her family, too. I knew those were hours and days and weeks they’d never get back. They had to be anxious and exhausted, but they never complained. Winning this case would be a major victory for them as well as for me. I nodded and tried to let Peter’s prediction soak in. This could be it.
Spring turned to summer and summer to fall. Still no word from the judge. Trena came to visit one afternoon and asked me to do her a favor.
“Dewey, I want you to start giving away your clothes and things,” she said. “You’re coming out of here. I know you are.”
We’d been together for more than a decade and had been through some wrenching times, and I knew better than to question Trena’s intuition by then. I started doling out my belongings to my fellow inmates. Like Santa convicted Claus, I handed out socks, long johns, sneakers, all my extra sweats, pants, and shirts. If Trena was wrong, it was going to be one cold-ass winter.
ON OCTOBER 14, 2009, A FRIDAY AFTERNOON, ROSS GOT A CALL from a reporter at the Poughkeepsie Journal.
“I hear congrats are in order,” the journalis
t began.
“What are you talking about?” Ross asked.
“I just got off the phone with the D.A. I heard your motion was granted.”
Ross jumped off the line and dialed Judge Rooney’s chambers. The clerk confirmed that the judge had rendered his opinion.
“It’s in the mail,” she said.
“Can you please e-mail or fax it to me?” Ross cajoled.
“We don’t do that,” the clerk answered. Ross turned the charm up full blast, and she finally caved. He scanned the first page as soon as it arrived, but the decision wasn’t there, and not on the next page or in the next ten pages, either. He flipped ahead until he found what he was looking for, on page 49.
“It is hereby ORDERED that the motion is granted to the extent that the judgment of conviction of the defendant for Murder in the Second Degree is vacated and a new trial is ordered.”
A hearing was scheduled for October 28, 2009, for “further proceedings.”
Shauna was at a wedding in Newport, Rhode Island, and couldn’t be reached, and Peter wasn’t in his office. Ross picked up the phone, eager to share the good news with someone.
“Trena, are you sitting down?”
“Oh my God.”
“Yeah, we won!”
Trena let out a scream so loud and long that Ross later described it as the rawest human emotion he had ever witnessed. Finally, she caught her breath.
“Sorry!”
“I’m here. You do whatever you have to do.”
The next day, Trena came to visit. We hugged and kissed, then sat down.
“Dewey, I got something to tell you,” Trena began. I braced myself for some kind of bad news—my default setting.
“Dewey, your case has been overturned.”
I stared at her in disbelief, unable to even process the happy news.
“Stop kidding, stop playing!” I finally said.
“I’m not,” Trena replied. The smile on her face assured me this was real, and a thousand and more things shot through my mind at once. I hollered for everyone to hear.
“My case has been overturned!!”
All the inmates, visitors, and COs within hearing distance offered their congratulations. Really? Really? Good for you!
I knew too well that all I could do now was pray.
On Sunday, Ross, Shauna, and Trena arranged a conference call to phone me with more details. If there was going to be a third trial, Ross promised, he would at least try to get me out on bail for the duration.
I had a million questions—How much would bail be, and how could we ever afford it? How long would we have to wait for the third trial? What about all the evidence that had been destroyed? No one had any answers yet, though, and all I could do was hang tight. I felt strangely calm, as if showing how desperately I wanted my freedom would chase it away again. “I’m not going to blow this,” I promised the WilmerHale team by way of thanks. “If I get out, I’m going to make you proud.”
Things were still up in the air until the hearing in two weeks. While Judge Rooney had found the law and facts supporting our charges that prosecutors had suppressed evidence “compelling” and “indeed overwhelming,” he had refused to speculate about my actual guilt or innocence. He did find the similarities “striking” between the Crapser, Dobler, and King assaults. “In addition to the advanced age of the victims, the proximity of the crimes in time and location and information connecting Donald Wise to all three assaults, the perpetrators tried to or did stuff material down the victims’ throats,” he noted, adding that the killers had also talked their way inside both the King and Crapser homes earlier in the day to case the apartments. If the jury had been given the evidence that Donald Wise was involved in two other alarmingly similar attacks on elderly women, Judge Rooney said, there was a “reasonable possibility” that I would have been acquitted. Referring to Lamar Smith and Wayne Moseley’s finger-pointing, he also pointed out that the only evidence connecting me to the crime “was the testimony of two extremely interested witnesses with serious credibility problems, who were admittedly using mind altering substances.”
That said, Judge Rooney did not reprimand the prosecution for any misconduct and explained that he did not think they had acted in bad faith or had intentionally skirted the law. We now had to wait and see what the district attorney’s office planned to do next. My guilty verdict had been vacated once before in 1990, when the court had agreed my first trial was unfair because prosecutors had excluded African Americans from the jury, but my second trial wrongfully convicted me for a second time. There was no guarantee a third trial wouldn’t end the same way, even with all the new Brady evidence we had discovered. Juries are unpredictable. I will live my life by the law until the day I die, but I will never again trust the law.
WHEN OCTOBER 28 CAME AROUND, I FELT EXCITED AND TENSE, like I was waiting to go into the ring against a titleholder. My head throbbed. Shauna arrived at the county jail where I was being held to keep me company before the deputies came to transport me to the courthouse. Ross had already gone on ahead to settle in at the defense table. Shauna produced a dark suit, white shirt, and red tie some para-legal had picked out for me to wear for my big day, and I thanked her while cringing at the junior banker’s sense of style.
“I look like Ross,” I observed with some alarm. Joking did nothing to relieve the stress. Perspiration was beading on my face, and I felt sick with anxiety. “This is the worst headache I’ve ever had,” I told Shauna. She gave me a hug before leaving.
“There’s a good chance you’re going to get out today,” she said. “We’ll see you in the courtroom.”
Ross had tried to connect with the D.A.’s office to find out how they planned to move forward, but as usual, no one gave him the courtesy of a return call. None of us knew what to expect that morning, but the national media was waiting for us in Poughkeepsie. Both the New York Times and CBS News had sent reporters. I saw TV crews and heard the whir of cameras as I entered the courtroom in my new suit and shackles. I took my seat next to Ross and Shauna at the defense table, the chains around my waist and ankles clanking. Ross had never seen me cuffed and chained before, and the sight must have unnerved him. He patted my back. Trena and Diamond sat behind us, smiling nervously in their Sunday best. Judge Rooney called the court to order and summarized the reason for the hearing, then asked the assistant district attorney, Edward Whitesell, how the prosecution planned to proceed. Whitesell peered down through his glasses to read a long statement. I couldn’t interpret the legal mumbo jumbo over the thump of my heart and the rush of blood in my ears. I heard someone mention that many of the original witnesses were no longer available and that the indictment was dismissed. Before it could register, I heard Judge Rooney’s voice, strong and clear.
“Mr. Bozella is ordered to be released immediately.”
The guards stepped up and unlocked my shackles, and I sat for a moment, shaking my head in dazed silence before the tears began to roll down my cheeks and I stood up, a free man. Trena rushed into my arms and we held each other tight, kissing and crying. It’s over, I whispered to her, it’s over.
13
THE FIRST AFTERSHOCK HIT ON THE RIDE HOME. I settled into Ross’s front seat for a quick trip back to the county jail to pick up my few belongings before catching up with Trena back at the apartment for the homecoming party she was busy throwing together. I still couldn’t quite believe the whole miracle of what had just happened. I felt like an actor who needed to absorb the story before he could feel the character. I stared at Ross’s dashboard. The lights, the video displays, the buttons . . . cars hadn’t looked like that in the ’80s, the last time I rode in a front seat. As Ross pulled out, a clipped voice out of nowhere began giving directions. Thing didn’t know shit about the streets of Poughkeepsie. I started arguing with it.
“It’s a GPS,” Ross explained. Some satellite in the sky tracking us on the ground, with a computer telling us where we were and how to get where we were going. Str
aight out of sci-fi.
“Damn,” I said, then: “It’s all wrong, man, you need to take this next left, then—”
“I think,” Ross cut me off with a laugh, “that I’m better off following the directions not coming from a guy who’s spent the last twenty-six years locked up.”
He turned out to be right, though it would take me a while to admit it even to myself: I didn’t know my way around the real world anymore, and me learning how to navigate it was going to be a rough ride for everyone.
Sing Sing owed me forty dollars from my commissary account, but I had no intention of picking it up. I could have used the money, but the cost of going back there to ask for it was too high for me. After all the years I did, they had even taken my pants, boots, and shirt before sending me in prison greens to the county jail to await the hearing that resulted in my release. Poughkeepsie had swapped Sing Sing’s greens for their own orange jumpsuit, and at the end of the day, I was put out on the streets a free man with not a dime or stitch of clothing to my name. Just the suit WilmerHale had bought me.
Back at Trena’s place—now our place—a small welcoming party of friends, supporters, and lawyers celebrated my homecoming with pizza, grilled chicken, and soda. The first game of the World Series was on TV, with the Phillies defending their title against the Yankees at Yankee Stadium. At Sing Sing, a major sports event usually spelled trouble of some sort on the blocks—careless trash talking, an unpaid gambling debt, a shiv between the ribs—and you had to pay more attention to what was happening around you than to the game itself. The risk wasn’t worth the effort, and I tended to stay away from those rec periods. My first night of freedom was cool and misty, but our one-bedroom apartment was warm and full of good cheer, good food, good people. Trena couldn’t stop smiling. Diamond hung in the background, shy and uncertain. In pictures from that day, I look happy but a little dazed, the victorious boxer whose ears are still ringing from a powerful head shot. “So what’s next?” everybody wanted to know. There was a long, long list in my mind that I was meaning to write down and ponder through a wide-open lens of possibility. I knew that more than any degree I had earned, I had to count on the self-help curriculum I’d designed for myself in prison. All the advice I had carefully copied into the notebooks I’d kept in my cell for so many years was finally going to get put to the test. The most important lessons were committed to memory, and I recited them to myself like a mantra.
Stand Tall Page 17