picture from google
By Andrew
Cohen
It is now only a matter of weeks, or days perhaps, before Herman
Wallace dies of the liver cancer that is ravaging his body. He will
likely die in prison, at age 72, without proper medical treatment,
after spending nearly four decades in a 6' by 9' cell. He was placed in
solitary confinement after being convicted in January 1974 of killing a
prison guard at Louisiana's notorious Angola prison. Wallace is black.
The guard was white, and so was each member of the southern jury that
convicted him.
The case against Wallace was pitifully weak when it was presented to
that jury; some of the constitutional infirmities at trial were almost
farcical. But over the years the courts of that state, along with
Congress and the federal courts, have constructed a mighty wall
protecting that jury's verdict. Layer upon layer of procedural
protections has been built around it so that today, as Wallace nears
death, it is easy to see the vast gulf that exists here between law and
justice.
And that, ironically, may be the most important legacy Wallace
leaves from his miserable time on this earth. A member of the famed "Angola
3," Wallace in life has been a symbol of many different things to
many different people. He has generated more than his share both of
pity and scorn. In death, however, he will become a symbol of a justice
system that too often prizes finality over accuracy, but without the
candor or courage to actually say so. The law says that Herman Wallace
got a fair trial. But we all can judge for ourselves what that really
meant to a black inmate in Louisiana in 1974.
The Trial
Wallace and three other black prisoners at Angola were charged in
May 1972 with the murder of a white guard named Brent Miller. The
investigation into the crime was aggressive, naturally, and all of the
witnesses, of course, were already incarcerated. There was trouble from
the start. The prison warden and the associate warden feuded over how
to proceed. At least one inmate later testified that he was beaten
during the interrogations that followed. One coerced witness fingered
another, who in turned fingered Wallace, who was already well-known to
prison officials because of his work on the nascent Angola chapter of
the Black Panther Party. Apart from the lack of evidence against him,
Wallace was a perfect defendant.
Bloody fingerprints and a knife were found at the crime scene, but
none of the prints belonged to Wallace or any of his co-defendants. The
state police testified later that although they had on file the
fingerprints of every Angola prisoner the bloody prints from the crime
scene were checked only against the suspects that prison officials
already had identified and just a few more people. Seven witnesses
testified that Wallace could not have been at the scene at the time of
the crime. Two other witnesses directly implicated Wallace; two others
testified against him less directly. Not only was the testimony of
these four inmates internally inconsistent, it also was inconsistent
with the testimony each of the others had given.
At first, all four co-defendants were represented by the same
attorney -- a clear and actionable conflict of interest. Then, midway
through the trial, one of Wallace's co-defendants switched sides, made
a deal with prosecutors, and became a government witness. During one
recess, Chester Jackson left the courtroom as a defendant and returned
minutes later, taking a seat with prosecutors at their table. The judge
gave Jackson's stunned (now) former attorney all of 30 minutes to
"regroup" before requiring him to cross-examine the man who just
minutes earlier had been his client. Later, state attorneys would argue
that this gave Wallace an advantage because the lawyer had inside
information on his former client.
The trial lawyer later said that prosecutors never approached him to
ask permission to talk with Jackson. Nor did the judge permit the
defense to see two prior written statements Jackson had signed that
might have impeached his credibility. In the version of the story
Jackson offered at trial, he was able to offer details about the murder
-- to implicate Wallace -- even though he said he was hiding behind a
wall at the time of the crime. In one of the versions he had signed
before trial, he had testified that he had seen, through a window,
Wallace stabbing the guard.
In a case with no physical evidence and no confession, the
testimonies of the other witnesses against Wallace were both crucial
and tainted. One such witness suffered from schizophrenia, a fact
hidden from Wallace's attorney. Another witness evidently was at one
time during the investigation a suspect in the murder (another fact
that was not disclosed at the time of the trial). Yet another inmate,
who was not called as a prosecution witness at trial, had given prison
officials a statement that might have helped exonerate Wallace. But
that statement was never disclosed to the defense.
In the end, after quick deliberations, Wallace was convicted of
murder and given a life sentence in Angola -- which meant decades of
isolation in a 6' by 9' cell. To make matters worse, his lawyer then
failed to appeal his conviction. It would take 16 years, until 1990,
before an appellate court took a look at Wallace's case. And by that
time, those procedural barriers had begun to pile up. More than 25
years after trial, a hearing commissioner reviewing the record of the
case called it "the most disgusting thing I have ever seen." But it
didn't matter. That commissioner's recommendation of relief was
immediately, and virtually without comment, reversed.
The Next 40 Years: Louisiana
What happened next, what happens so often when the flaws of old
tainted trials are exposed to the light of day, is that the gatekeepers
of the criminal justice system, the prosecutors and state judges,
became more interested in defending the verdict than in testing its
accuracy. From 1992 to 2009, confronted with more and more compelling
evidence of the constitutional failings of the trial, the Louisiana
Supreme Court nonetheless refused on four separate occasions
to consider Wallace's claims for relief. To this day, the highest court
in that state has never issued a substantive ruling on any of the
material issues arising from one of the state's most infamous cases.
Worse, the few dissenting voices that emerged from decades of
judicial review were promptly squashed. In 1999, one state appellate
judge declared that witness Jackson's mid-trial switch from defendant
to prosecution witness suggested the presence of an undisclosed deal
with the state. In 2006, another state judge recommended that Wallace's
conviction be overturned because the defense was never told at trial
about "material impeachment evidence" regarding Hezekiah Brown, the
second primary witness against Wallace. When Louisiana's appellate
judges reversed these rulings, they did so with virtually no
substantive legal analysis.
Wallace's last chance for relief is now pending in federal court.
The state's brief is a classic example of the types of procedural
arguments states now use to block meaningful appellate review.
Twenty-six pages of Louisiana's 64-page brief, for example, are devoted
to reminding Chief U.S. District Judge Brian A Jackson that he is
duty-bound to reject Wallace's claims unless he finds that the
Louisiana courts were both "incorrect" and "unreasonable" in their
application of the law. No matter how egregious those state court
rulings may be, Louisiana argues, they are presumed to be correct and
Wallace must prove otherwise by "clear and convincing" evidence.
Trial prosecutors failed to tell Wallace about a deal with witness
Hezekiah Brown? No matter, state lawyers now argue; even if such a deal
occurred, it was between the prison warden and the witness, and not
between prosecutors and the witness. Brown received special privileges
in prison after he incriminated Wallace? Received weekly deliveries of
cigarettes and other favors? No matter, state lawyers now argue,
because there is scant proof that any agreement existed between the
warden and the prisoner before trial. There is scant proof
because all of the witnesses now are dead and because Wallace's
attorney never appealed the verdict.
So inmate Brown, who was once a suspect in the murder of the guard,
later testified against Wallace and received extensive benefits from
the warden. Brown was removed from the general prison population. The
warden wrote letters on his behalf for parole. And decades later, the
warden testified that he had promised Brown aid before trial because
"he had cracked the case for us." Yet none of this was enough to
convince the state courts of Louisiana that Brown's testimony might
have been tainted and that, even if it weren't, that Wallace was
entitled to know about these arrangements at the time of trial.
The state court review of the Wallace verdict, in other words, was
deliberately indifferent. But the law accounts for this. It's why there
is a federal habeas review -- a procedural mechanism that permits
federal judges to give men like Wallace a fairer and more neutral
evaluation of their claims. But here, especially, lawmakers and judges
have built walls separating law and justice. The Wallace case is a
prime example of the ways in which the Antiterrorism and
Effective Death Penalty Act and other statutes have undercut the strength
of the Great Writ of Habeas Corpus, a building block of Western law.
The Next 40 Years: The Feds
Wallace filed his last appeal in 2009. It took 18 months for
Louisiana to respond. And then it took more than two years -- until
September 13th of this year, two weeks ago -- for U.S. Magistrate Judge
Stephen C. Riedlinger to issue a ruling on the merits denying all of
Wallace's claims for relief. That ruling, styled as a "Report," is a
65-page paean to form over substance, an example of how diligent the
law can be in avoiding a search for the truth. First, there was the
obligatory recitation of the statutory and case law that has whittled down to a
nub the scope of the writ of habeas corpus. Then there was the
logic. Here is just one example:
Petitioner asserted that in
1998, 14 years after he was convicted, he obtained documents discovered
by co-defendant Woodfox which indicated that the State suppressed
evidence that Warden Henderson provided Brown favors and promised to
help him obtain a pardon in return for Brown's testimony at the
petitioner's trial..
The foundation of the
petitioner's Brady claim is centered on testimony of Warden
Henderson and corrections officer Bobby Oliveaux at Woodfox's 1998
retrial. Oliveaux testified that Brown was housed at the dog pen and
received cigarettes, birthday cakes and incentive wages. Warden
Henderson testified essentially that at some unspecified time prior to
Brown's trial testimony he promised to help Brown obtain a pardon...
Wallace's Brady claim
that the State failed to divulge the fact that Brown had received
"favors," such as desirable housing in exchange for his testimony, is
without merit. Suppression exists only where a defendant did not - and
could not - know about the essential facts that would enable him to
take advantage of the evidence... Garretson, the petitioner's attorney,
testified... that prior to the petitioner's trial he was aware of the
favorable treatment Brown was receiving (Citations omitted by me)
There is a lot going on here so let me be brief. First, the
magistrate cites unfavorably the length of time it took for Wallace to
make his claim -- 14 years -- without acknowledging that Wallace's
attorney was to blame for that delay by failing to appeal the original
verdict. Then, the magistrate denies Wallace relief on the ground that
this lawyer was aware of Brown's special treatment at the time of
trial. This is the same lawyer, mind you, who in addition to not
appealing his client's murder conviction also failed to recuse himself
from representing all four co-defendants at the start of the trial. In
the magistrate's revisionist history, under applicable legal standards,
this lawyer, of all lawyers, is presumed to be both diligent and
competent.
Here from the magistrate's "Report" is another example of this sort of
warped reasoning countenanced by current federal review standards:
Petitioner has not carried his
burden to establish that evidence [of witness Brown's deal] was
suppressed.... Warden Henderson emphatically denied that an agreement
had been struck with Brown. Then... he testified that nothing was
promised to Brown initially, other than protection. Warden Henderson
testified that sometime after that... he told Brown he would support a
pardon application. Later, Warden Henderson agreed with defense counsel
that promises were made before Brown testified. Obviously, this
testimony was inconsistent.
Even assuming, without
deciding, that the petitioner has established that the prosecution
suppressed evidence that Warden Henderson promised Brown help with a
pardon in exchange for his testimony against the petitioner, there is
no likelihood of a different result. Brown's testimony was consistent
with Jackson's testimony, the co-defendant who testified on behalf of
the State against the petitioner. Moreover, Brown was a neutral witness.
See what's happening here? Even though the warden ultimately
conceded under oath that there was a prior deal with Brown, and
even though logic and common sense tell us that such a deal existed,
the magistrate instead concludes that this evidence is "inconsistent."
Then he labels Brown, the inmate who first was a suspect in the murder
and who later had cigarettes delivered to him by prison guards, to be a
"neutral witness." This is not a searing search for truth and justice.
This is not a meaningful review of a trial record. It is instead a post-hoc
rationalization of a dubious status quo.
Postscript
Terminally ill, Wallace finally has been removed from solitary
confinement. There have been calls from public officials and others for
his "compassionate release" from prison but state officials are adamant
in rejecting such requests. They say that Wallace's life sentence has
always meant that he would die in prison, that elderly prisoners die
regularly in confinement as part of their sentences, and that the
inmate is entitled to no special medical treatment. So there he sits, a
sick old man who spent four decades in solitary confinement for a crime
he contends he did not commit, a prisoner running out of time to get
any vindication from our courts of law.
When Herman Wallace dies, his case will die with him. And that will
be a shame not just for him but for anyone who still believes that our
criminal trials should from time to time be more than mere tests of
evidence -- that they should strive, especially when a man's life or
liberty are on the line, to find the truth of the matter. After
Wallace's death, none of us will ever know what happened inside that
prison in May 1972 -- what promises were made, what truths were hidden
-- because no one other than Wallace has ever had any incentive to care
about what happened that day. That's a failure of our justice system; a
failure both in concept and execution.
Today, Judge Jackson, the federal trial judge, is likely the last
judge who will ever have the job of reviewing Wallace's case. He can
reject Magistrate Riedlinger's "Report," he can embrace it, or he can
come down somewhere in between. Judge Jackson, an appointee of
President Barack Obama, is a relatively new judge and this high-profile
case presents the first big test of his young career on the bench. Win
or lose, Wallace's legacy is secure -- he's always going to be the guy
who spent 40 years in solitary after a sham trial. But how this judge
handles this case now surely will say a great deal about what his
legacy is likely to be -- and whether our justice systems will be
capable than they have been of acknowledging and then fixing even their
most grievous mistakes.
This article available online at:
Copyright © 2013 by The Atlantic Monthly Group. All
Rights Reserved.
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Replies
to whom it may concern,
first of all, he hasn't lived a miserable life on this humble earth. as a matter of fact, this humble earth has enjoyed his stay, and so have those of us who are active in the struggle. as far as those who rebuke him scorn, that's okay because it let's us know that their true purpose is to wreak havoc on afrikan people, not only in the united snakkkes of amerikkka but all over the planet. that is why herman hooks wallace's legacy will be continued, because as fred hampton, deputy chairman of the illinois state black panther party, stated so correctly, you can murder a freedom fighter, but ain't gonna murder freedom fighting, which is exactly the purpose of the state. all the while, its operators claim to be the inheritors of what's hilariously called the most important document ever written: the CONstitution of the united snakkkes, which isn't worth the paper it was scribbled on. no wonder, it's called CONgress, because the state has been conning the masses of the people eversince its inception. that's why its inevitable that a clash with the state is imminent, because those who have made peace impossible make violent revolution inevitable. and that's coming from a former state senator of georgia. so, herman hooks wallace, if anything along the lines of a symbol, is the anti-thesis of all that this country hasn't been or claims to represent. he has taught those us who have stood on his shoulders, as the now group of freedom fighters what dedication, diligence, durability, and strength aught to be when it comes to struggling against the state. and when they finish salivating in their murder of herman hooks wallace, they'll still fall short, because they'll never be able to count him among the broken, which means they've failed anyway. and they would even be doing us a favor by giving us an extra shot in the arm in murdering him by disguising themselves as the law and justice.
UHURU!