Saturday, March 20, 2010

Meet the Exonerated: Georgia's Death Row Part 2

Jerry Banks (left) was tried and convicted twice for the murder of two people in Henry County, Georgia. In both cases, inadequate legal representation and the suppression of exculpatory evidence contributed to Bank’s wrongful convictions.

The prosecution withheld evidence from the defense, which included the testimony of several witnesses which contradicted the story put forth by prosecutors at trial. Prosecutors dropped all charges against him when the chief detective in the case was implicated in evidence tampering.

Jerry Banks spent six years on death row before new volunteer lawyers got his conviction overturned on the basis of newly discovered evidence. Soon after, the court decision, it was also discovered that the shotgun shells found at the crime scene, which allegedly came from Banks’ gun, were actually planted.

On 7 November 1974, Jerry Banks, then 23 years old, was rabbit hunting when he discovered the bodies of Marvin King and Melanie Hartsfield. Both victims had been shot to death with a shotgun and police found two red shotgun shells at the scene of the crime; Banks was hunting with a shotgun. Banks rushed back to the main road and alerted a passing motorist who in turn alerted the police.

Banks was asked to hand over his weapon to the police. The police also learned of Banks 1970 conviction for manslaughter and he started to become a suspect in the case. A month later police again obtained Banks shotgun and ran tests on it. Although the tests could not prove that his shotgun was the murder weapon, it was determined that the red shells found near the bodies definitely came from Banks gun. When questioned by the police, Banks insisted that he had not fired the shotgun on the day of the murders and he had not thrown out any shells in the area. Hence their presence at the murder scene was a mystery unless Banks was lying. After a third shell from Banks gun was found at the murder scene at a later date, and a friend failed to confirm that he had the shotgun on the day in question, Banks admitted lying to the police to get the officers off his back. He was arrested for the murders on 10 December 1974. Six and a half weeks later Banks was convicted and sentenced to death for the murders. No motive for the murder was ever established.

At the trial the jury refused to believe Banks brothers testimony that he had been using the shotgun in the area the previous week, or the testimony of Banks employer that he was at work at the time the murders occurred. The motorist flagged down by Banks was not called to testify at the trial and the police testified that they did not know this mans name. The prosecution suggested that Banks had reported the murders himself and made up the story of the passing motorist. Shortly after the trial the motorist, Andrew Eberhardt, contacted the trial judge and insisted he had identified himself to the police. If this was true, the information should have been made available to the defence attorney. Therefore a motion demanding a new trial was filed but denied by the trial judge. However, in September 1975 the Georgia Supreme Court unanimously ordered a new trial.

The District Attorney offered Banks a life sentence in exchange for a guilty plea but Banks refused, insisting on his innocence. At the second trial the defence attorney failed to offer even the minimal defence offered at the first. Banks brother and employer were not called as witnesses; the only defence witness was Andrew Eberhardt, the passing motorist. The trial lasted two days and Banks was convicted and sentenced to death. The jury found that the murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture to [one of] the victim[s]. This opinion was based on the fact that Banks shotgun was a single-barrel weapon that would have required reloading after each shot. Therefore the second murder victim was essentially tortured with the knowledge that his or her death was imminent. The conviction and sentence were affirmed by the Georgia Supreme Court.

Through a chance meeting Banks was lucky enough to acquire a new legal team who agreed to represent him for free. His original lawyer was disbarred because of his handling of another case. Despite the fact that they had now ruled that his original lawyer was unfit to appear in front of them, the Georgia courts ruled that Banks had received effective assistance of legal counsel.

Banks new defence team started to learn of other witnesses who were not called at either trial. A local chief of police and his son (also a police officer) had been near the murder scene and heard the shots at 2.30pm, when Banks had a witness saying he was at work. The police chief also visited the murder site with the local mayor and found two green shotgun cases that could not have been fired by Banks gun as they were the wrong type.

The attorneys also found a former detective who had interviewed four workmen who were near the scene on the day of the murders. The four had heard the shots and corroborated the statement by the police chief and his son: that the four shots came in quick succession over no more than five seconds. Banks gun was single-barrelled and would have needed reloading after each shot taking at least five seconds per round of ammunition. A memo summarizing this information had been circulated among detectives working on the case, but had disappeared from the file.

The attorneys located another person who had heard the shots. This man, a farmer, had seen a white man holding an automatic shotgun leaning on a van. The man claimed he had reported this to the sheriff but had heard nothing more. Another witness was located who claimed he saw a car similar to the one owned by King pulled over to the side of a road on the day of the murders. A woman was sitting in the car and two white men were outside arguing loudly. Newspaper articles published just after the murders reported that the police were looking for two white men who were suspected as the killers.

Armed with the new evidence, Banks attorneys appealed to the original trial judge for a new trial but this was rejected. However the Georgia Supreme Court did order a third trial for Banks.

At this point the District Attorney could have dropped the charges but instead chose to prepare for the trial; Banks remained on death row. During preparations for the trial, defence attorneys discovered that the former sheriffs detective, who had been the lead investigator in the case, had mishandled evidence in other cases. The attorneys found discrepancies in the detectives accounts of the tests on Banks shotgun and the version offered by a former county commissioner.

On 16 December 1980, just after the District Attorney had announced that he would seek a death sentence for the third time, the defence attorneys revealed what they now knew about the sheriffs detective. Three days later the District Attorney announced that he would not re-prosecute the case, and admitted that evidence from the shotgun shells - the only real evidence against Banks - lacks sufficient legal credibility to be believed. On 22 December 1980 Banks was freed.

In May 1981, the three defence attorneys were awarded an Indigent Defence Award from the Georgia Association of Criminal Defence Lawyers. They received no payment for their work on Banks case.

Jerry Banks was unable to return to his previous life. Shortly after his release his wife filed for divorce. On 29 March 1981, three days before the divorce was to become official, Banks, having failed to persuade his wife to change her mind, killed both his wife and himself. His suicide note simply said everything I have in this world has been taken away. Guardians of the couples three children, the oldest of whom was 11, filed a $12 million suit against the former sheriff of Henry County and five of his deputy sheriffs, citing their mishandling of the case motivated by racial prejudice. In March 1983 the guardians agreed an out-of-court settlement of $150,000.

James Creamer, convicted in 1973, and released in 1975, the case against Creamer was based upon the testimony of an alleged accomplice and eyewitness, granted immunity for her statement. The Georgia Supreme Court unanimously overturned the conviction after revelations that the prosecution withheld and destroyed exculpatory evidence. In particular, the defense concealed evidence that the witness had provided the police with demonstrably false testimony and that prosecutors fed the witness information to make her story coincide with their theory of the case. After the case was overturned, the witness admitted to lying at the trial. Soon after, another man, who was in prison for other crimes, admitted that he and two others committed the murders for which Mr. Creamer had been sent to death row.

Earl Charles spent over three years on death row for the for the double murder of two Savannah merchants that occurred while Charles was in Tampa, Florida. It was later revealed that a police detective falsified eyewitness identifications and coached a witness to lie in court. The informant later admitted that he had made up his story at the detective’s persuading.

In addition, incontrovertible alibi evidence, showed that Charles was in Florida at the exact time of the crime. The district attorney announced that he would not retry the case and Charles won a settlement from city officials for misconduct in the original investigation. His release was owing largely to his mother's unflagging efforts.

Henry Drake was sentenced to death, even though there was no physical evidence tying
him to the murder scene and witnesses confirmed his alibi. The state’s case rested on
the eyewitness testimony of an accomplice who portrayed Drake as the main culprit. Years
later, that eyewitness signed an affidavit stating that he had lied to falsely implicate Drake and that Drake, in fact, had nothing to do with it.

Further, reexamination by a medical examiner showed that bloodstains at the murder scene did not support the prosecution’s theory that there were two assailants. While Drake’s conviction was not overturned, the state Board of Pardons and Paroles freed him based on the new evidence.

Robert Wallace was convicted and sentenced to death for the slaying of a police officer, despite his
claim that the shooting was accidental and that he was acting in self-defense because he was beaten by the officers. The 11th Circuit ordered a retrial because Wallace had not been competent to stand trial. He was acquitted at the retrial because it was found that the shooting was accidental.

Gary Nelson spent 11 years on death row. Volunteer attorneys discovered that the prosecution lied in court about the origins of a hair sample found on the victim’s body and hid lab reports from the defense that proved the hair could not be linked to Nelson. In addition, a police officer lied about the murder weapon. Each material aspect of the state’s case was discredited and the case was thrown out.

Gary Nelson lived on Georgia's death row for eleven years. During that time, fifteen of his fellow condemned prisoners--fifteen people with whom he lived 24 hours a day--were taken from their cells to the state's very active electric chair and killed. "The burnt flesh is something I will never forget," he recently said. "It was horrible the way they let us smell him cooking."[15]

Today, Gary Nelson is a "free" man. Free, that is, of his prison cell and death sentence. He can never be free of his experience, of his memories.

Freedom came on November 6, 1991, after the state supreme court unanimously agreed that both his original conviction and death sentence were illegally obtained because the government withheld and lied about critical evidence. Chatham County D.A. Spencer Lawton, who did not prosecute the original case, acknowledged, "There is no material element of the state's case in the original trial which has not subsequently been determined to be impeached or contradicted."

The state's case was a classic example of creating facts to fit a theory, of hiding facts that undermine it, and of perjury to obtain a courtroom victory. It is an example of a governmental conspiracy that almost resulted in the execution of an innocent person.

Nelson's odyssey began on a quiet Sunday evening 14 years ago, the last time six-year-old Valerie Armstrong was seen alive. On that Sunday evening, February 19, 1978, Valerie and her neighborhood friend, eight-year-old Sabrina Williams were playing together when they decided to walk to the store. When they got there, Valerie didn't have any money, so she told Sabrina she was going to ask "Uncle Al" for the money to buy some candy. Alphonso Swinton, known to the neighborhood children as Uncle Al because he gave them change for bringing him pecans, lived nearby. He shared a house with Gary Nelson.

When the two girls arrived at Mr. Swinton's house, according to Sabrina, they parted. The last time she saw Valerie, she was walking toward the door. A man was working on a Volkswagon in the driveway.

Valerie's body was discovered the next day in the woods behind her house. She had been raped and stabbed to death. A broken knife was found nearby. A number of body hairs were also found, one of which became crucial evidence in the state's case against Gary Nelson.

Nelson had had minor brushes with the law. Because he lived nearby and was known to the police, he was an immediate suspect. A week after Valerie's body was found, Nelson met with the detectives voluntarily. Although he protested that he did not know the little girl, his house was searched. The police found nothing.

Nelson was arrested in May, 1978. It was not until a year and half later, in October, 1979, that he was indicted by the grand jury.

As in many death penalty trials, the state had no evidence directly linking him to the crime--no eyewitnesses, no fingerprints, no confession. What they did have were suspicions. Upon their suspicions, they built a circumstantial case which rested on three pieces of crucial testimony.

First, there was Sabrina Williams. Although the child testified in court that Nelson was not the man she saw working on the Volkswagon that day, she was contradicted by Detective D. L. Burkhalter, an officer of the Chatham County Police Department. Burkhalter, who had led the young girl through a photographic lineup during the investigation, testified that she had "readily identified" Nelson in the lineup. If his version of events was true, he created the impression that Nelson was the last to be seen together with Valerie.

Second, there was the hair found on the body. Roger Parian, director of the Savannah Branch of the State Crime Laboratory, testified that he had mounted the hair on a slide, examined it, and determined that it came from the arm of a black person. He further narrowed the field to any of about 120 black people, including Nelson, out of Chatham County's 60,000 black residents. District Attorney Andrew J. Ryan III had told the jury in his opening statement that "the hair that was found on the body and the known hair from the arm of Gary Nelson have, in (Mr. Parian's) opinion, the same origin." [16]

Third, there was the knife. The state alleged the knife had been brought into Nelson's house by his girlfriend whose brother, Bobby Butler, owned it. When Butler was called by the defense, however, he testified that the police had shown him photos of the knife which he could not identify. He also testified that, despite numerous visits to Nelson's house, he had never seen the knife there. The state offered Detective Robert Wedlock in rebuttal. Wedlock testified that Butler had told him over the phone that if it contained a toothpick hidden in the handle, he could identify the knife as belonging to his father. Wedlock said that as a result of this conversation, he opened the knife and found, for the first time, a toothpick in the handle. [17]

The jury convicted Nelson and sentenced him to death. His mother, Viola, suffered a stroke in the courtroom and collapsed.

Very shortly after Nelson was convicted, the Atlanta law firm of Bondurant, Mixson & Elmore saw the trial transcript, and decided to get involved in Nelson's appeals on a pro bono basis. After ten years of investigation--at an estimated cost to the firm in excess of a quarter million dollars in billable time [18]--they uncovered crucial evidence in the files of the prosecutor that neither Mr. Nelson's attorney, nor the jury that convicted him, ever saw.

The prosecution is required to reveal any exculpatory evidence it possesses--evidence that benefits the defendant.[19]Despite proper motions filed on Nelson's behalf by his trial lawyer for all exculpatory evidence, and a direct order from the judge to comply, none was turned over by the prosecutor. When the file was finally opened, it revealed that the prosecution's case not only rested on a framework of official, governmental perjury, but that the District Attorney had in his files considerable evidence that supported Nelson's claim of innocence. Indeed, the D.A. had substantial evidence pointing to the guilt of another individual--evidence he concealed for a decade.

The entire circumstantial case against Nelson collapsed. First, contrary to the perjured testimony of Roger Parian of the state crime lab, he had not examined the arm hair found on Valerie Armstrong's body, nor did it implicate Nelson in any way. Instead, responding to Parian's request, the hair had been examined by the FBI's crime lab in Washington which sent its report directly to Parian. "This hair is not suitable for significant comparison purposes," the report concluded. In a sworn affidavit, Myron Scholberg, the former Unit Chief of the Microscopic Analysis Unit of the FBI's crime lab, testified that "the limb hair obtained from the victim could have come from any black person, including, but not limited to, other suspects in this case or the victim."[20]

Next was the testimony of Detective Burkhalter that Sabrina Williams had "readily identified" Nelson from a photo lineup. It was a lie. A verbatim transcript of the taped police interview in the State's files but never turned over to the defense reveals that the child was anything but positive. "I don't know how he looked," she responded at one point to the detective's prodding. Each time she gave a tentative reply, the officer encouraged her to disregard her doubts and make a positive I.D. from the photos. Finally, she pointed to the photo of Nelson and said, "...I saw a man something like that but I don't know if he is... he looked something like the man..."[21] She described the man she saw as bald and thin, neither of which fit Nelson. Indeed, her answers were consistent with her courtroom testimony that Nelson was not the man she saw in the yard.

Finally, there was the knife. Despite the courtroom testimony of Bobby Butler, the brother of Nelson's girlfriend, that he could not identify the knife, Detective Robert Wedlock had testified that Butler had told him he could identify the knife if it contained a toothpick in the handle. Wedlock opened the knife at that point, he testified, and found the toothpick.

But Detective Wedlock had tape recorded the interview. Had the D.A. revealed the existence of such a recording to the defense, it would have impeached Officer Wedlock's sworn--but perjured--testimony.

The transcript reveals that Butler consistently denied that he could identify the knife. Moreover, the transcript shows that the "hidden toothpick" in the knife's handle was not something Butler had told them about, but was known by the police since the day the knife was found. "The only logical conclusion which can be drawn is that the prosecutor knowingly used the perjured testimony of Detective Wedlock to obtain a conviction of Mr. Nelson," the habeas corpus petition to the state supreme court asserts. [22]

Beyond the official lies and misrepresentations, the files also contained a wealth of other, unrevealed exculpatory evidence:

* statements of multiple witnesses corroborating Mr. Nelson's assertion that he was on the other side of town when Valerie disappeared;
* substantial and specific, concrete evidence that the crime was done by someone other than Nelson, including a confession;
* information that Sabrina Williams was not the last person to have seen Valerie Armstrong alive--she was seen by multiple witnesses after leaving the house where Gary Nelson had allegedly been working on his Volkswagon.[23]

In May of 1990, Butts County Superior Court Judge E. Byron Smith heard the new evidence, concluded that material information was indeed withheld from Nelson's trial lawyer, but nevertheless upheld the death sentence, ruling that it would not have made a difference in the trial's outcome. It was on an appeal from this decision to the state supreme court that finally brought some measure of justice, ultimately leading to Gary Nelson's release.

"I want to spend some time with my family," he said just before being released. "I feel like they are all strangers."[24]

Emmet Bondurant, who still supports capital punishment and whose firm won Nelson's release, had never before been involved in a death penalty case. His experience has left him shaken and distrustful. "The case is an unfortunate illus-tration of what can happen," he says. "It's pure system abuse."[25]

Marcus A. Wellons v. Hilton Hall, Warden - U.S. Supreme Court Orders Review of Judge-Jury Misconduct in Georgia Death Penalty Case


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