by Kyle Swenson
Part III
NOT YOUR TOWN ANYMORE
10
SUPER FLOP
Lucasville, Ohio, 1995
The ruling caught him like a sucker punch—total surprise. The parole board decided Rickey Jackson, Grafton Correctional prisoner #143953, aggravated murder, would have his sentence extended for another ten years. Ten years. He was thirty-eight. Wouldn’t see a parole board again until he was just shy of fifty. Might not even be alive in ten years.
Really, he should have seen it coming, he realized later. Been happening to enough guys. When Rickey was first locked up, parole was easy to make. If you had served the minimum of your sentence, the board signed off on your release with the stipulation that if you landed back in prison, you’d have to serve out the remainder on top of whatever new sentence you were saddled with. But ever since the early 1990s, new sentencing guidelines—tougher, stronger—had come into play, cutting down the board’s discretion. Now, for heavy felony offenders or former death row inmates like Rickey, they were handing out ten years or more of additional time. Ten years. The prisoners called them “super flops.”
The change at the board fit with the shift Rickey could read across the whole system. Prison once sent a message: if you wanted to, and weren’t too much of a knucklehead, you could straighten out, do the programs and classes, and go home better than you came in. Rehabilitated. Now that philosophy no longer existed. The classes were bullshit. Parole was impossible to get. And the guys who did get out seemed to boomerang right back. Rickey saw clearly: it was a revolving door in here.
His sense of the shift was correct. The War on Crime and the War on Drugs had acted as they were designed, funneling generations of the urban poor into the prison system. Mandatory minimum sentences and three-strike laws kept those prisoners inside for longer and increased their likelihood of reoffending. Between 1980 and 2000, the country’s prison and jail population exploded from 300,000 to 2 million.1
Rickey knew his own situation was a dead end under the new hard-edged penal approach. No matter if it was 1995 or 2005 or even 2015, every time he sat across a table from three members of the parole board, they’d want to hear the same words from him: tell us about what happened, about Mr. Franks and Mrs. Robinson. And Rickey wouldn’t, couldn’t, deliver: I can’t tell you what happened ’cause I wasn’t there, he’d always tell them.
Within a few days of the 1995 decision, Rickey thawed out, thoughts and feelings rolling through him again. Ten years. That’s like a whole ’nother prison sentence, he thought. I’ll go crazy in here. To hell with working out, going to the job, or mentally checking out with science fiction novels. To hell with trying just to get along.
He needed to bend all he had toward being released, Rickey decided. Got to do something.
* * *
The American criminal justice system isn’t wired for claims of innocence. The mechanisms just aren’t there, and the reasons why run deep. Much of it lies in the basic decentralized setup: each of the fifty states has its own criminal justice system; the federal courts run parallel to the local judiciary. Together, this creates a mess of overlapping jurisdictions and crisscrossing legal avenues, counter-case law and precedent and political leanings—a lot of white noise often drowning out real pleas for help.
The post-trial plumbing is further marked by one fact: from the moment a case reaches their docket, the higher appellate courts assume the trial judge or jury made the right call on guilt or innocence. The upper courts aren’t interested in rehashing the facts unless something new enters the frame, and then do so only with the utmost suspicion.
The first shot at an appeal is a new trial motion. These are submitted back to the court where the original trial occurred. The thrust of the filing must be new evidence. This is material that has not previously come to light, and it must be forceful enough to convince the judge a retrial would end in acquittal. Time limits, however, are a significant roadblock to new trial motions; they range from one month to three years after the original sentencing, depending on the state. These calendar restrictions were passed in response to the flood of appeals filed following the advances of the Warren court. They are kept in place due to the high case volume in American law. If everyone could file for a new trial, the thinking runs, the courts would be overwhelmed. But even if you file within the window and can produce evidence meeting the criteria, a new trial motion is still a long shot. The filing lands back on the desk of the judge who just finished trying the case. He or she might not be open to more of the same, tired of the whole thing. And a judge can reject the motion without holding an evidentiary hearing or even issuing a written explanation.
The next open lane for postconviction relief is a direct appeal to a higher court. But again this panel is uninterested in claims of innocence. The appellate level is tasked only with looking at procedural errors. These issues include government evidence that should not have been allowed at trial or misleading instructions to the jury or prosecutorial misconduct. None of these issues can be flagged in an appeal unless the defense counsel objected during the original trial. Otherwise, in the eyes of the law, the issues are not preserved. Often, even if a defendant is able to spotlight procedural mistakes, the court still won’t upset the trial verdict; sure, the courts may admit in these instances that there were procedural missteps in the trial—but they reason the verdict would still have been the same. The U.S. Supreme Court has dubbed this the “harmless error test.” It is “notoriously flexible,” in the words of one expert.
The final state opportunity for review is called postconviction relief. This motion, filed again with the original trial court, represents a completely new challenge to the conviction. You could, for example, argue for ineffectiveness of counsel. The bar for proof, however, is usually incredibly high—yes, the court may say, you might have had a bad lawyer, but can you prove conclusively the bad lawyer was the reason you were convicted? This level of the appellate layer cake is further complicated by the fact that most state law doesn’t provide an inmate with an attorney for postconviction review. State statutes also often do not provide attorneys for a prisoner’s final shot at the federal level. This final Hail Mary, a habeas petition, must argue on the grounds of a constitutional rights violation.
Although it seems there are a number of options, in truth, there is little reason to think the courts regularly correct their own mistakes through the postconviction channels. Studies have borne out the terrible odds of the system. In 2011, a law professor named Brandon L. Garrett published a detailed excavation of the first 250 exonerations achieved through DNA testing. Part of the examination looked at the success rate of postconviction appeals on behalf of the exonerees before DNA testing incontrovertibly proved their innocence. Ninety percent of the high court appeals failed to help these innocent men and women. Without science, they would likely still be guilty in the eyes of the law.
Worse, the access these innocent men and women had to the appeals process dwindled the further they drilled into the process. Of the first 250 DNA exonerations, Garrett was only able to obtain written appellate decisions for 165 prisoners. All 165 applied for direct appeal; by the postconviction level, only seventy-one filed; thirty-five filed federal habeas petitions; thirty-eight filed directly with the U.S. Supreme Court; the high bench only agreed to hear one case—which was then turned down.2
The existing decisions also show that invariably the courts lean toward the original trial verdict. Of the 165 records Garrett pored through, in seventy-eight cases the ruling judges affirmed the petitioners’ guilt based on the strength of the prosecution’s cases; in sixteen, the judges referred to the “overwhelming” guilt of the petitioner. Remember: these are men and women later proven innocent by science. Yet the human intellect on the judicial bench could not reach the same conclusion through the law.3
Even the most promising situations can roller-coaster through the courts to a tragic finish. The case of Troy Davis may be the most shameful exam
ple. Convicted of murdering an off-duty police officer in 1991, the Georgia man maintained his innocence from death row, where he awaited execution. He immediately filed for a new trial with the same judge within the state-mandated thirty days. It was denied. A direct appeal was also shot down—the presiding judges emphasized the jury’s verdict. Davis next filed a federal habeas claim, arguing that prosecutorial misconduct and ineffective counsel at his trial were constitutional violations. Both the federal district court and appeals circuit denied his motion while noting they wouldn’t touch his innocence claims.
Davis launched another motion for a new trial in the Georgia state courts. This time he had considerable evidence on his side: seven of the nine witnesses who originally identified Davis as the murderer had recanted their statements. Key to their reversals was not that they’d been mistaken, but rather were pressured by police to name Davis. But this motion was also denied; again, the decision noted the weight of the original verdict. No evidentiary hearing was even granted to hear from the recanting witnesses.
Davis again filed with the federal court on the basis of actual innocence. Here his prospects seemed to turn. The U.S. Supreme Court granted his petition in August 2009—the first time the country’s highest court had granted such a petition in fifty years. The court directed the lower district judges to reexamine the case to see “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.” Troy Davis was finally going to get his day.
But the district court was not sympathetic to Davis’s pleas. This court decided the “new evidence casts some additional, minimal doubt on his conviction” but was largely “smoke and mirrors.” The court—once again—deferred to the original jury: a “federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence.” To do so, the decision noted in an argument grounded more in housekeeping than justice, would set a precedent that could wreak “complete havoc on the criminal justice system.”4
His options were done. Davis was executed by lethal injection on September 21, 2011.
* * *
Rickey tried to tell the kid, but he wouldn’t listen. Walter was a younger guy on his range, serving out a minor sentence. He was constantly stealing stuff from other Lucasville inmates. Rickey told him to quit. Wasn’t worth the risk, especially if he was going home so soon. Then one day Rickey watched in the dayroom as one of the guys Walter had stolen from walked up to him and killed him right there. Rickey’s heart broke to see a guy so young killed, but he didn’t say a word. It was one of three killings he would personally witness at Lucasville.
Rickey’s game plan for surviving prison was to unplug. Prison wasn’t the place for a sensitive, perceptive man. Too much of what you saw stuck to you, and if you let your emotion spill out, you were only marked as weak. The next victim. So you parked your emotions as far away as possible. Some small part remained, nagging away. But you ignored it. As his years inside added up, Rickey learned to stack as much as he could between himself and his surroundings.5
In the early years, sports and athletics were a good buffer. He worked out, played basketball. Tired muscles and straining lungs were an easy distraction. At Lucasville he got a job handing out recreation equipment in the rec room, and work became another outlet. But even a heavy schedule didn’t completely fence off the brutal reality of prison life. One day when Rickey was cleaning up the gym, he walked around a corner. A group of big inmates had a smaller, screaming man in a headlock. They were taking turns raping him. Rickey was terrified if he said something, he’d be the next one on the ground. He carried the shame for years.
After he was transferred to Lebanon in 1987, he continued throwing himself into employment opportunities. Rickey ran a printing press, worked a shoe-stitching machine, and later landed in the kitchen.
He didn’t gamble, didn’t seek out drugs. He fought when he had to, but was able to steer clear of the gang beefs responsible for most of the bloodshed inside the penitentiary. Keeping to himself also meant zipping shut about his case. Kwame might have told anyone who wanted to chat about how he did not commit the crime he was inside for; Rickey barely shared the details of his charges, much less his innocence. By his way of thinking, every pair of ears belonged to a possible snitch, some fucker looking to spin information into an advantage. You might confide in someone, only to see the same face at your next parole hearing.
There wasn’t much peace behind the barricades Rickey erected. How could there be? He was left with blazing hate. As years passed, the floating anger narrowed down to a thin blade pointing at one person: Ed Vernon. Rickey stewed over the kid, endlessly working over how he could have done what he did. He kept it going like a furnace.
But it all changed in 1995, after the parole board gave him ten more years. Rickey was determined to do something about his case. He had no idea what, but he guessed where to start. After his shifts in the kitchen he would wash the food stink off, then head for the law library. Inside there were always guys bent over law books, trying to squeeze sense from the thick language as it pertained to their bit. Rickey learned he needed to obtain his trial transcript. He requested the documents, and after months of waiting a thick stack arrived from the Cuyahoga Court clerk. Now Rickey had to relive his courtroom ordeal, or live through it for the first time—so much had shot over his head during the trial. He ordered the Bridgemans’ 1975 trials as well, and soon he was spending hours flipping through the files. I’ve been mad at the wrong person, Rickey realized. It was all there in the record. His hot anger swung away from Ed Vernon, fixing now on the police, prosecutors, and judges who let this whole mess go down. Ed did his part, but he couldn’t have done it without the cooperation of the whole system, Rickey saw. They basically kidnapped this boy from his parents. Ed was powerless, too.
Rickey began taking detailed notes on the transcripts, jotting down when Ed’s testimony contradicted other statements in the record. He would later hop on a typewriter, carefully pecking out the errors and missteps from the legal proceeding.
Armed with this information, he returned to the law library, asking about nonprofits or organizations willing to work pro bono for prisoners. From there he wrote Centurion Ministries, the Innocence Project in New York City, every elected official he could think of in Ohio and Cuyahoga County, every newspaper and television station—anyone who might be able to help. He made a promise to himself: send out one letter a day, five days a week. He saved his state pay up for stamps, stuffed his typed-up pleas for help into envelopes, and mailed them off like SOSs in bottles.
Replies rarely came. When they did, the responses might be encouraging but promised no action. The case was too old. There wasn’t enough evidence. Everyone was overworked. Rickey also saw that he wasn’t bringing much to the situation. I can’t really give them anything, he told himself, other than Ed Vernon.
* * *
DNA evidence splashed into the American mainstream in 1995. For ten months, Americans binged on the daily legal maneuvers inside a California courtroom as former NFL superstar O.J. Simpson fought off charges that he had brutally murdered his ex-wife. The trial unfolded under a harsh tabloid glare; undercurrents of race and fame fed the drama. But probably the most consequential figure for Simpson’s defense was a lowkey New Yorker talking science.
Barry Scheck, assisted by Peter Neufeld, was arguably the key figure in Simpson’s “Dream Team” defense. Day after day, the attorneys meticulously picked apart the Los Angeles Police Department’s handling of forensic evidence. By the time of Simpson’s trial, the legal issues involving DNA were largely settled. But Scheck and Neufeld’s work in LA was central to the evolving narrative of wrongful conviction. The pair introduced the science to the world beyond the legal community. They also advanced the idea that sloppy police work can jeopardize a slam-dunk criminal case.
The general population has never absorbed the full implications of wrongful convic
tions, even though the issue has been pitched by reformers as a public policy crisis for most of the twentieth century.
Today, many experts and lawyers consider Edwin Borchard’s 1932 book, Convicting the Innocent, the Big Bang moment for exoneration studies. A three-hundred-page run-through of sixty-five instances of men and women convicted for crimes they didn’t commit, the book also contained one of the first diagnostics of wrongful conviction “causes.” Borchard, a progressive liberal and comparative law professor at Yale University, wrote the book in order to push ahead federal legislation providing financial compensation for exonerees—legislation that was signed into law by President Franklin Roosevelt in 1938. Borchard’s efforts to get similar laws on state statutes failed, however, and the cause never led to a brushfire of public outcry. Erle Stanley Gardner, the creator of iconic fictional attorney Perry Mason, was similarly stymied. Between 1948 and 1958, the lawyer turned author wrote a column called Court of Last Resort featuring wrongful conviction stories.6 Gardner was credited with exonerating at least eighteen individuals. But a true-crime television show based on the concept flopped after a single season. Gardner’s efforts to spark a wider awareness and conversation also failed to take.
In the 1980s, while the legal system increasingly evolved along a hard-line punitive trajectory, the main interest in wrongful conviction came from academics. As Robert J. Norris outlined in his book Exonerated: A History of the Innocence Movement, early in the decade philosopher Hugo Adam Bedau and sociologist Michael Radelet began examining capital cases as part of their opposition to the death penalty. The results, published in 1987 in the Stanford Law Review, presented three hundred and fifty cases which Bedau and Radelet believed were wrongful convictions. The authors also argued that in twenty-three of those cases, innocent men and women had been put to death.