by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
In the days ahead, Greg and his best friend in prison, Bo White, took to calling her Butcher Knife Shorty. “She may be little, but she cuts some tall lumber,” they’d say.
The first thing Bolton did was a take a little ride, a quarter mile down the road from the courthouse to the scene of the crime. This was something Greg’s attorney Robert Zibilich should have done twenty-five years ago, days after he accepted the case; had he done so, the case may well have fallen apart. Bolton discovered that there was no way the state’s primary witness could have seen what she described taking place on the sidewalk, no way she could have seen the hole in the fence, no way she could have seen Elliot Porter where she said she did. Beneath Sheila Robertson’s third-story bedroom window was a porch roof that completely obstructed her view of the sidewalk.
Then Bolton studied the woman’s testimony and noticed how her sequence of events shape-shifted over time. First she said the two men broke into her apartment and threatened her. Later, she would say they choked her. By the time she got to the trial, she said they had a gun—and they threatened to kill her baby. Robertson also testified that she could see “pretty good” and therefore had no trouble identifying the men who broke into her house because she had the bathroom, kitchen, and hall lights on. In fact, the kitchen and the bathroom were on the floor below the bedroom. Other inconsistencies began to pile up. She said that she reported the break-in to the Housing Authority; the Housing Authority, which kept very detailed tenant records, especially of crimes, had no record of such a complaint.
And finally, when Bolton acquired a copy of the original autopsy report, she discovered that the coroner’s report noted that rigor mortis had not yet set in when the body was autopsied at 9 A.M. that day. She spoke to the original forensic pathologist who conducted the autopsy. He confirmed that the time of death had to be between 5 and 8 A.M. There was no way the boy could have been killed at 1:30 A.M. as Sheila had testified.
Bolton was puzzled that Greg was convicted without a shred of physical evidence tying him to the crime. No gun was ever found. No blood, fingerprints, footprints, hair, or anything else was collected. None of the victim’s clothes or possessions were found in Greg’s possession, despite the fact that some things had been stolen from Elliot Porter. The police were clearly on the trail of two different suspects, when Sheila Robertson surfaced with her eyewitness statement.
But why would Sheila, who didn’t even know these guys, lie? It didn’t make sense. Bolton knew she had to have a conversation with Sheila Robertson. She was steadily gathering such public records as were available on the woman, from the courts, the Department of Motor Vehicles, and the police. Strangely, on one state document printout she noticed an “aka” next to the name. She investigated further and made a startling discovery. The witness’s name wasn’t Sheila Robertson at all. She was Shelia Caston—and Shelia Caston was a “career criminal” who, with her multiple aliases, had been arrested for shoplifting, theft, forgery, prostitution, drug possession, and distribution.44
There were so many unanswered questions about Caston’s testimony, Bolton knew she had to talk to her. But where was she? All of the addresses Bolton and her team could find for Caston were old; she was transient, impossible to track down. “We were always looking for her,” says Bolton, explaining that they took to entering her name and her various aliases into the jail computer whenever they had a quiet moment, thinking a career criminal was likely to resurface in jail. One day, they got a break. She had been arrested.
Bolton paid her a visit at the Louisiana Correctional Institute for Women. She spent two hours talking to Caston, who “cried quite a lot” and said she couldn’t really remember events from back then. Caston shared snatches of her past—abused as a child, sent off to the State Industrial School for Colored Youth, addicted to heroin as an adult, ill and hospitalized for long stretches of time on the third floor of Charity Hospital—but Bolton left no more enlightened than when she arrived. “Her life story was rough, traumatic, and tragic,” Bolton said. “It still didn’t make sense, though. Why would you lie about something that would send someone to prison for life?” She wanted a “Miss Marple moment of motive,” she says, but it eluded her.
Still, she kept thinking about her interview with Caston. There was something odd about her phrasing: third floor of Charity, she’d said. Strange. Who says, “I was ill and hospitalized on the seventh floor of Union Memorial”? She turned the phrase over in her mind as she left the prison, figuring it a local euphemism, but for what? She set the thought aside. A few days later it came back to her, third floor of Charity Hospital. Third floor? Suddenly, it clicked. She looked it up. Sure enough, it was a euphemism. The third floor of Charity Hospital was the psych ward.
Gregory Bright’s twenty-six-year stretch of bad luck was about to change.
Bolton got a court order for Caston’s hospital records, and those under her alias Robertson. To her surprise, she learned that the state’s only witness was a paranoid schizophrenic. In fact, she was experiencing hallucinations at the time of the murder and alleged break-in of her home. Hospital records revealed that she had been admitted in January 1975 for psychotic depression. According to documents filed in the case, “[s]he had a previous diagnosis of paranoid schizophrenia and sociopathic personality disorder on admission, from her treatment at Center City Mental Health Clinic.” She was brought to the hospital when her two-year-old son was hospitalized after she allegedly abused him.45 A doctor had noted in her file: “She was depressed, crying and experienced auditory and visual hallucinations (voices telling her she was going to be killed or to kill her second child).” Because of the accusations of child abuse and the intervention of Child Protective Services, it wasn’t even clear that any of her children were actually living with her when she testified that Greg and Earl held a gun to her baby’s head. There are multiple mentions of hallucinating in her hospital files, which also note that she threatened to burn down a cousin’s house and her mother’s house. She also suffered from something called pica. In her case, it manifested itself by her compulsion to consume cloth towels almost every day, beginning in her childhood. “This condition is more usually seen in third world countries,” Bolton would later explain to a judge, “and is a primitive human response to malnutrition; in Ms. ‘Robertson’ it persisted into adulthood perhaps because she remained malnourished as a heroin addict.”46 From the pieces of documentation that Bolton and her team began accumulating—gathered from hospitals, probation, child welfare, police—it emerged that Caston, at the time she was testifying in Greg’s trial, was a drug addict (heroin, marijuana, and amphetamines), had a long history of psychiatric problems that had her in and out of treatment since she was sixteen years old, and was intermittently on an antipsychotic medication called Mellaril (thioridazine).
“This was seven months before she was approached by the police and told them she had seen Elliot Porter’s murder,” Bolton wrote in a new, amended application for post-conviction relief that she was drafting on Greg’s behalf over the summer of 2001. “The fact that the only witness against Mr. Bright was medicated in an attempt to reduce incidents of psychosis was information that would have been critical to his defense,” she adds in her understated, British way. “But it was kept from Mr. Bright by the State.”
Finally, it turns out that Caston was a sort of “professional witness” and had helped put away at least two other men, one for heroin distribution and one for murder. There was a confused—though never substantiated—reference by Caston herself that she may have been paid some “Crime stopper” money in exchange for her statement to police.
On the day that Greg and Earl’s trial had been scheduled to begin in June 1976, it had to be delayed for a month because Caston was at that very moment hospitalized at Sara Mayo Hospital for mental health services, and therefore unable to testify. This would seem to indicate that the state was well aware of the star witness’s questionable credibility, yet prosecutors declined to share th
is information (or even Robertson’s real name, which would allow Greg’s attorney Zibilich access to a completely different person’s rap sheet) with the defense.
On August 20, 2001, Bolton, along with local attorney Jason Rogers Williams, filed a 148-page amendment to the application for post-conviction relief that Greg had written on his own behalf in 1995. The amendment cited twenty-three reasons why Greg’s conviction should be overturned. Then, on February 8, 2002, and again on February 22, 2002, Greg finally had his day in court. In these two evidentiary hearings, Bolton and her team presented 150 documents and testimony by twenty witnesses—all the new facts they had collected in Greg and Earl’s case.
The judge chided the DA for the shoddy prosecution of this case, particularly the withholding of crucial evidence. “The court finds that the district attorney’s office was aware of these facts about its eye witness, including the false identity of the eye witness and her problems with the law and with the courts, and that this evidence is Brady material which, if presented to the jury, was reasonably likely to have produced a different result in the trial,” Judge Charles Elloie wrote on March 11, 2002. “For these reasons, the conviction herein is vacated and set aside and a new trial is ordered.”
The district attorney’s office appealed this, but after many months, the Louisiana Supreme Court turned down the state’s appeal. The judge set the date for a new trial. Meanwhile, a new assistant district attorney, Robert White, was assigned to the case. Bolton describes him as “an ex-navy man with a keen eye for injustice, and probably the first person in the district attorney’s office to actually read the entirety of the material filed on Greg’s behalf.” Bob White decided that the charges should be dropped in the interests of justice, and his boss agreed to do just that. The charges were dismissed, and on June 23, 2003, Greg and Earl walked out of Angola as free men with nothing but $10 and a garbage bag full of legal paperwork. Earl did not even have shoes.
Poor defendants in New Orleans today continue to fight for basic rights in the criminal justice system. The case of Clarence Jones, the New Orleans man accused of burglary, is complicated but instructive. At his May 17, 2011, arraignment—almost a month after he’d been arrested—the judge agreed with Clarence’s assertion that he was indigent and qualified for a public defender. (Clarence is a day laborer in construction, mostly with hazardous material—including, in the aftermath of Katrina, such things as mold remediation, lead paint, and asbestos removal. At the time of his arrest, he was out of work and qualified for food stamps.) Because his co-defendant in the case had already secured a lawyer from the public defender’s office, Clarence was appointed someone from the conflicts division, LaShanda Webb.
Then on June 27, 2011, Clarence was sent over from the jail to the courthouse for a preliminary hearing. But his attorney, likely busy in another courtroom, never showed up. The hearing was rescheduled for July 11. Clarence’s lawyer and a police officer showed up for that and probable cause was found for the burglary charge. (The judge found no probable cause for Clarence’s cousin, Keitha Hyde, and reduced her charge to trespassing.) The judge set a trial date of July 25.
On July 25, the state asked for a postponement. The court granted the request and set a new trial date, September 22. On September 22, the court docket says simply, “Defendant, Clarence Jones Jr did not appear for trial. Defendant in custody and not brought into court.” This would become a refrain in the records; Clarence has lost track of the number of times the jail neglected to bring him to court or, having transported him to the building, left him sitting in the “docks,” a holding pen for inmates waiting to be brought by sheriff’s deputies into their respective courtrooms. Sometimes, the attorneys are simply filing routine papers and don’t need their clients to be present in the courtroom, but sometimes clerks or understaffed sheriff’s deputies simply fail to get it together. One public defender insider said mildly that such snafus were “not completely uncommon.” In Clarence’s case, the docket notes that deputies failed to deliver him to the courtroom twelve times in a sixteen-month period. Because a trial cannot go forward without the defendant in the courtroom, the delays piled up.
Meanwhile, Clarence’s attorney also failed to show up on September 22. The judge postponed the trial, and a hearing was set for September 29—at which point the judge set a new trial date of December 7. On December 7, she set a new date for a pretrial conference of December 12. On that day, Clarence had a newly appointed attorney, Leigh Ann Rood, show up in court on his behalf; unbeknownst to him, his original lawyer, Webb, had left her job at the public defender’s office. Clarence says Rood never met with him. Not that they had much chance to build rapport. Clarence’s trial was rescheduled for March 1—but by then, Rood had become a casualty of the mass layoffs at the public defender’s office. She lost her job, and Clarence became one of the 543 indigent defendants in the city of New Orleans, people charged with everything from possession of marijuana to murder, who were suddenly without a lawyer.
A year passed, slowly.
Clarence spent it in the Orleans Parish Prison tents. “I never been appointed another lawyer,” he told me in June 2012. “They call me to court, I sit back in the dock, and they never let me in.” He tried to educate himself on the law: reading some books from the prison library, talking to other inmates, and doing some seat-of-the-pants legal work on his own behalf. “I’m not the only one back here don’t have a lawyer,” he says. “We get law books, so I read a few pages to see what fits my case.” He tells me that he filed a motion for “discovery and inspection” to see what kind of evidence might be introduced during the trial and a motion to “squash” (meaning quash) based on a violation of Louisiana’s Code of Criminal Procedure, which says he has a right to a speedy trial. And while Clarence may be a bit off on the lingo, he’s correct on the essence: “The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody.” Clarence is doing the best he can, but after spending so many months in jail, he is growing discouraged and starting to wonder if he will ever get out. “I think it sucks,” he says. “I think if I had an attorney, I would have been home.”
Not that Clarence Jones has spent his life treading the straight and narrow. Indeed, he’s been arrested five times in his life and convicted twice: once in March 2004 for a misdemeanor (possession of marijuana) and a second time in May 2004 for a felony (distribution of marijuana). It’s not inconceivable that he did attempt a burglary and is lying about what he was doing in that alley. The point is, who knows? Without a trial, and without an attorney to help him navigate our complicated legal labyrinth, he is languishing in jail, his constitutional rights clearly violated. (Case in point: I personally had to consult three local attorneys to “translate” the docket master and comprehend the loopy history of his case.)
Almost fifty years ago, an indigent man who shared the same first name—Clarence—and the same charge (he was accused of burglarizing a pool hall in Panama City, Florida) helped establish the right to counsel in Gideon v. Wainwright. Like Clarence Jones, Clarence Gideon did not have a lawyer and wrote to the court himself. “Petitioner cannot make any pretense of being able to answer the learned attorney General of the State of Florida because the petitioner is not a attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the petitioner knows there is many of them,” Gideon wrote to the U.S. Supreme Court in April 1962 from his jail cell. “All countrys try to give there citizens a fair trial and see to it they have counsel.”
In March 1963, the U.S. Supreme Court agreed. Writing for the majority, Justice Hugo Black stated the obvious: “[R]eason and reflection require us to recognize that in our adversarial system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Echoing Clarence Earl Gideon—in corrected syntax and spelling—Black further insisted, “The right of one charged with crime to
counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”
Is it? When I speak to retired Judge Calvin Johnson in April 2012 at his Common Street office in New Orleans, it is clear that he has a profound understanding of how the legal system fails poor people in Louisiana. He is the judge who decided, in State v. Peart, that the state legislature must properly fund indigent defense, and the one who, as chief judge, spearheaded public defender reform in the aftermath of Hurricane Katrina. He sees the interconnectedness of the personal, political, and legal—and the value of working all three angles at once. At sixty-five, with cropped gray hair, a mustache, and a colorful pink-and-white striped shirt, he has left the law for a new job heading up New Orleans’s Metropolitan Human Services department. But his heart—and hand—are still in the criminal justice arena.
Over the years, he has been a public defender in the city. (“Those who know me well say I left because I wasn’t very good at it,” he says. “I say I left because I was overwhelmed by it.”) Then he ran the criminal law clinic at Loyola University Law School for a decade. In the ’90s, he became a judge. “Full disclosure,” he says. “It was apparent to me in 1979 that the way the system operated here was not in the best interest of those who needed representation. That’s what generated Peart.” Johnson thinks back to the 1993 case State v. Peart and says he’d like to correct the record on that. “One of the misnomers about Peart is that it is always associated with capital cases or serious matters,” he says, explaining that the defendant, Peart, was charged with rape and murder and, due to the seriousness of these charges, was actually quite likely to get some attention as the public defender involved triaged cases and the most serious rose to the top of his to-do list. “But what about all the other people Rick [Teissier] could not represent properly because he had to focus all or most of his attention on cases like Peart?” Those charged with low-end, petty crimes, “these are the guys getting screwed,” he says. “Getting convicted of a misdemeanor or low-level felony could be a life sentence in Louisiana. Here, it’s a life sentence [to have that conviction on your record] because you are banned from some schools, some houses, some jobs. You can’t, can’t, can’t.” The conviction can be for a minor case. Maybe a person was convicted and got probation, but it still stays on his or her record. “The conviction is a life sentence. That conviction will go with you till the day you die.”