Innocence On Trial

by Rick Bowers

  A bit like the chambers, Superior Court Judge Peter J. Striker had transformed himself over his years on the bench. The rugged, handsome, white-maned jurist had been a private litigator, defense lawyer, and prosecutor before ascending to the judiciary. Over the years, he had gone from a stickler for the letter of the law to a more open-minded arbiter of the legal process. At this point of his career, Striker had one goal: To oversee fair trials that were not vulnerable on appeal. He was respected for giving ample leeway to both sides, while weighing legal disputes and rendering fair opinions. It was also rumored—whispered in the corridors of the courthouse, and the local lawyer hangouts—that the good judge had a temper. If cornered, the pissed-off Striker could skewer wayward barristers.

  Facing counsel and co-counsel for the defense and prosecution at the glass conference table, he looked over his wire-framed glasses to chief prosecutor Bart Ward.

  “Mr. Ward.”

  “Yes, Your Honor?”

  “Are you aware that I’ve been practicing law in courtrooms for more than a half-century? Attorney-for-hire. Defender. Prosecutor. Judge.”

  “Yes, sir.”

  “Mr. Ward.”

  “Yes, Your Honor?”

  “Do you to know that I’ve spent the past fourteen years presiding over cases in this courtroom? I’ve handled cases ranging from parking tickets to murder.”

  “You record is well-known, sir,” Ward groveled, “and respected by all.”

  “I’ve ruled on cases ranging from dog bites and domestic disputes to hit-and-runs and homicides.”

  “Yes, Your Honor. You have an outstanding record. A fine—”

  “Now, Mr. Ward.”

  “Yes, sir.”

  Laura nudged Martha’s elbow as Striker crooked his neck.

  “Over all those years, I thought I’d seen it all.” The judge narrowed his eyes and curled his upper lip.

  “Sir?” Bart Ward squirmed a bit. “What do you—?”

  “Until now,” Striker snapped. “Until this case.”

  “Sir?”

  “Mr. Ward, explain something to me. How is it that I hear of new evidence at this late stage—as the case goes to the jury? Why am I sitting in chamber with lawyers from both sides, examining evidence, while the jury prepares to deliberate? How is it that I’m being asked to rule on the admittance of a potentially explosive piece of exculpatory evidence at the eleventh hour?”

  “Your Honor, I can’t—”

  “It’s not a complicated question. Certainly not for a learned attorney such as yourself. Why the hell am I learning of a significant source of DNA evidence at end of the trial? How was this central sample of DNA kept out of the trial up until now? Why wasn’t it brought forward in the first trial? How did this happen?”

  Stammering, Ward tried to explain. He told the judge that the towel had been placed in the wrong police department’s evidence bin by accident. It had been left there for more than a decade without anyone realizing its importance. Hell, no one even knew of its existence. Stumbling over his words, the chief prosecutor moved his gaze from the irate judge to his co-counsel, who was wiping sweat from his bald head one chair over.

  Striker moved his blue lasers from Ward to Mel Radowitz. “Ahhh. Mr. Radowitz. The Honorable County Prosecutor. The brilliant legal mind behind State of New York v. Edward Thomas Nash I. The architect of a first-degree murder conviction that was based on no evidence or valid testimony. How do you explain this last-minute piece of discovery, sir? What’s your story?”

  Radowitz was crimson from his sweat-covered dome to his wrinkled neckline. “It was a mistake, Your Honor. An honest mistake.”

  “A mistake?” Striker roared as all four lawyers stiffened their posture. “An honest mistake? Like paying the witness? Like fudging the tire evidence? Like botching the psychiatric analysis? Like coercing the confession? Honest mistake after honest mistake. Gentleman, I have lost patience with all these mistakes. I view these mistakes as grounds for dismissing the indictment and handing this entire mess over to the Board of Legal Ethics and Responsibility. The Board can spend the next year determining who was at fault. Gentleman, I may be a simple country lawyer, but I ain’t stupid. How dare you bring this foul-smelling pile of legal dung into my courtroom?”

  Ward started to rise but stopped halfway as Striker snapped, “Sit down.”

  The judge closed his eyes and took a series of slow breaths. He turned to Laura and Martha. “Counsel for the defense.” Striker seemed to have forced a degree of calm back into his roiling temper. “Tell me about this towel.”

  “Your Honor, the exhibit tagged ‘Lambert Homicide #1’ was supplied to the defense three days ago, pursuant to an order of this court issued to the Genesee Police Department. The exhibit—a white towel with visible blood splatter—was tested at the I-Gene Diagnostic DNA Testing Laboratory in Buffalo. I-Gene is certified by the American Association of Crime Laboratories and the College of American Pathologists.”

  “The findings?” Striker asked. “What did we learn?”

  “The DNA extracted from the blood on the towel did not match the DNA sample taken from Edward Thomas Nash. This non-match was presented by the lab with a degree of certainty of 99.96%. Your Honor, Mr. Nash did not leave that bloodstained towel at the murder scene.”

  “Who did?” Striker boomed. “Who the hell did?”

  “No one knows. Working with our law enforcement counterparts, the Center Against Wrongful Convictions ran the DNA profile through national, state, and local databases for the storage and exchange of DNA profiles. The Combined DNA Index System—CODIS—did not contain a sample from a criminal offender who matched this DNA profile.”

  Martha said, “Your Honor, it appears the man who killed Erin Lambert does not have an arrest or criminal conviction, so there’s no DNA on file that matches the DNA on the towel. The actual perpetrator is still at large and poses an immediate risk to the community. The sooner this case is disposed of, the sooner the police can begin looking for the real killer.”

  Judge Striker stared into space. He let the room go silent. He repositioned his glasses, shifted in his chair, and glanced at the DNA report. He removed his glasses and turned to the chief prosecutor.

  “Mr. Ward?”

  “The state acknowledges the validity of the test results.”

  Striker rose to his feet, towering. His mere presence emitted a palpable force. He left his place at the table and walked up to Bart Ward. The good judge placed a hand on the shoulder of the good prosecutor. “I expect you to do the right thing.”

  84

  THE EXONERATION ALLIANCE

  INNOCENCE BLOG

  BREAKING NEWS:

  Convicted Murderer Proved Innocent

  New York Convict Exonerated

  Ten-Year Prison Ordeal Ends

  The Council Against Wrongful Convictions has exonerated an innocent man more than ten years after his first-degree murder conviction.

  Edward Thomas Nash is expected to leave the courtroom a free man tomorrow, after Superior Court Judge Peter J. Striker rules in a vacating hearing at the Erie County Courthouse. In his original trial, Nash was convicted of first-degree murder in the hanging death of a young woman in rural New York State.

  Sentenced to life without parole, Nash served ten years and seven months at the Attica Correctional Facility. His jailers testified that he was both a psychopath and a sociopath—a charged refuted by expert defense witnesses and common sense.

  Nash was not available for comment.

  His attorney, Laura Tobias, spoke to reporters on the courthouse steps with this comment: “This is a banner day for the innocence movement. An innocent man has achieved justice. He is going home. At the same time, we know there are thousands more men and women unjustly imprisoned across this country. We will celebrate this, then get back to work.”

  85


  Superior Court Judge Peter J. Striker looked down from the bench at Edward Thomas Nash.

  Striker pounded the gavel and proclaimed, “You are free to go.”

  Eddie Nash dropped his head, tears of joy flowing.

  Cassie Nash raised two hands to praise God.

  Laura exhaled. Another prisoner was freed from the tomb of the innocent.

  86

  Welcome to the Exoneration Celebration.

  Sponsored By:

  The Council Against Wrongful Convictions

  The sign welcomed guests to the spacious Adirondack Room at the Empire Gardens Hotel in Buffalo. The crowd was in the mood to party. Luminaries from the national innocence movement mingled with public defenders, private attorneys, and even a few prosecutors. The guests chatted about the case around a chiseled ice sculpture of a blindfolded woman, holding the scales of justice. A half-dozen state representatives and local politicians mingled with guests and fielded questions from reporters, armed with audio recorders and notebooks. Three former prison inmates—exonerated of felony charges after serving long sentences—captivated the curious with their trials, tribulations, and transformations.

  “I spent twenty-seven years in Folsom State Prison—the worst pen in California—for a murder I did not commit,” one told a circle of onlookers. “The Innocence Project lawyer had to prove my innocence and point police to the actual killer. Sound familiar?”

  Eddie Nash beamed into the lens of the photographer’s Nikon 8310 Single Lens Reflex and—in sync with the beaming woman next to him— pronounced the word of the moment: “Freedom!” The flash assured a perfect exposure and signaled the next in line to step up for a picture with the guest of honor.

  A recording of “The Redemption Song” by Bob Marley and the Wailers clashed with the clink of crystal stemware, and the voices of seventy-five guests.

  A voice boomed over the speakers. “May I have your attention, please?”

  All eyes turned to the center of the room.

  In the center of the crowded space, the charismatic CEO of the Council Against Wrongful Convictions stood with a microphone in hand. Josh Linder raised a sparkling glass in the direction of the guest of honor.

  “A toast to an innocent man. Best wishes, my friend. Your future starts now, Eddie.”

  The crowd cheered.

  Josh looked toward Laura and hoisted his glass again.

  “To his amazing attorney—the unstoppable Laura Tobias. A shout-out to the entire legal team. Great work!”

  More cheers.

  Josh turned to his left. A cameraman from a local TV station was focusing on him. “You know,” Josh said to the camera, “our perception of wrongful conviction has changed over the years. We used to believe that sending an innocent man or woman to prison was a rare exception. We accepted this once-in-a-generation anomaly as the price we pay for living in a society of laws and courts. Now, we see that innocent people are imprisoned—even executed—in far greater numbers than anyone ever imagined. Ladies and gentleman, Eddie Nash is a living reminder of that grim reality. He sacrificed more than ten years of his life to teach us an invaluable lesson: We can never stop fighting for the incarcerated innocent.”

  Cheers rolled and glasses met.

  A voice called from the crowd. “How does it feel to be out, Eddie?”

  Someone thrust a microphone in Eddie’s face.

  “I haven’t breathed clean air, eaten good food, or been hugged like this for so long,” he said. “I’m just happy that this horrible nightmare is over.”

  87

  THREE MONTHS LATER

  Laura cruised down the country road. The top of the Mustang was down. The radio was up. Bruce Springsteen’s “Born to Run” flow from the Bose speakers, the drumbeat pounding to the passing of the white lines under the tires. Laura felt the cool air flowed into her face. Her hair—longer now—whipped in the wind. The passing scenery made her smile. Lush pastures. Green hills. Trickling streams. Springtime—rebirth. Longer days, and evening thundershowers. Warmer temperatures, and new leaves. She saw the sign:

  Eden

  21 Miles

  Left Lane

  Laura did not plan to stop to see Eddie and Cassie on this visit. She took heart, though, in Eddie’s good fortune. She knew that after the trial, Eddie flew home on the wings of press reports of his total exoneration: “Innocent Man Home Free. Eden Man Found Innocent. Ten-Year Prison Ordeal Over.” She also knew that the cards and balloons at his welcome home party made him feel great. Knowing his taste for fried chicken, a local businessman presented him with a thousand-dollar gift certificate to Bojangles.

  Laura continued down the highway. Eyes focused on the lane dividers, she thought about Eddie’s good fortune. Two weeks after his return, Eddie accepted a six-thousand-dollar check from the state’s modest inmate compensation fund. Eddie had the good form to wait a few days to lodge his $10 million lawsuit against the State of New York. Wrongful imprisonment. Malicious prosecution. A million for each full year spent at Attica.

  He let the additional seven months slide.

  With one hand on the steering wheel, Laura smiled at Eddie’s courage. She’d accompanied him to two legal conferences for The Prison Project—a group fighting mass incarceration. At the end of Eddie’s speech, he raised a fist and yelled, “Attica! Attica! Remember Attica!”

  Otherwise, Laura advised him to keep a low profile, and he complied. He lived in a modest apartment at Eden Arms and worked as a mechanic at Jo Jo’s Truck Repair. He took his mom out to dinner at the Riverside Diner every Wednesday and escorted her church every Sunday. They’d told Laura that the world looked big and beautiful from that new, gleaming, glass chapel on Heaven Hill. Reverend Garrett always delivered a good sermon, and the choir was heaven-sent. The sermon about the return of the Prodigal Son was their favorite. Eddie had stopped making fun of God. Just in case.

  Laura returned her focus to the highway. Five miles from the turnoff for Eden, Laura glanced down at the newspaper on the passenger seat. The New York Times was open on the blue vinyl, like a friend riding shotgun. The headline above the fold called out like a gunshot blast. “Police Corruption Scheme Triggers Multiple Arrests.” There was a smaller headline under it. “Ten Indicted on Corruption Charges.”

  Laura thought, The New York Times is one hell of a newspaper. Laura had read the whole article before setting out that morning. The Times reported that Eden County Chief of Detectives Peter Demario was a central figure in a shadowy network of corrupt cops and crooked prosecutors. Demario was indicted on counts ranging from corruption and conspiracy to using excessive force and filing false reports. He remained free on bail, while awaiting trial on charges that could land him in prison for twenty-five years.

  I hope they stick him in Attica. I hear there’s an open cell in D-Block.

  Erie County Prosecutor Mel Radowitz was indicted on one count of corruption for his misdeeds in the original trial. Plus, a legal ethics board was on track to disbar him for malpractice. He never should have flirted with the Big Lie. In the end, the Big Lie always takes you down.

  Attica Superintendent Leon Wilkes—Laura’s biggest fan—was not indicted. At least, not in the first wave. However, Wilkes was under investigation by the state’s Prison Review Board for mismanaging funds. How the powerful fall. Like a wall. One brick at a time.

  Laura saw the sign for Eden. She leaned the Mustang into the exit and turned onto Burnt Mansion Road. She passed the old Angel’s Gate Mental Asylum, recalling how Lou masqueraded as a stoner to get inside those crumbling walls. How he stole those secrets and triggered the search for the bloodstained towel. The exonerating evidence. Laura gazed out at the ruins. There were no dopers wandering through the overgrown gardens or burnouts sprawled on the crumbling porch. Their neighborhood dealer was gone.

  Jimmy Dean Bernadi was no longer in a position to
supply heroin and opioids to the addicted. He was ensconced in the county jail, awaiting trial on felony drug distribution charges. The strip-club-bouncer-turned-opioid-king was busted just three weeks after the end of the Nash trial. Laura smiled at the memory of his pathetic testimony. His bumbling web of lies and contradictions. How she revealed him for the liar that he was. How she raised the possibility that he was the bad guy. The essence of third-party guilt. In the wake of Nash’s exoneration, Bernadi was—for a short time—a key suspect in the reopened Erin Lambert murder investigation. It turned out, though, that he really had attended that rock concert. Jimmy’s alibi was for real. He was nowhere near the crime scene. He just had a bad memory. Who forgets Pink Floyd? Be that as it may, Laura’s bluff had served its purpose. After the trial, a number of jurors told reporters that they believed Bernadi was the Hangman of Eden.

  Alas, no. The search went on.

  Laura considered how her life had been transformed since the trial. Over the Christmas break, she and her dad drove up to the Adirondacks. Surrounded by snowcapped mountains and icy streams, they shared memories of Janet Tobias. His wife. Her mom. They hiked up the mountain trail and looked out over the grand vistas. They felt closer to her than they had in years. They also promised to return to that spot every year. Laura had finally forgiven herself, and the eight-year-old girl who couldn’t stand to see her mother go.

  “I get it now,” Laura told her father. “Mom didn’t leave me. She lives inside me.”

  Her deathbed temper tantrum was nothing more than the normal expression of a terrified little girl. She’d always known that. Mom must have known it, too. Laura just had to embrace it.