Someone in Buddy Caldwell’s office must have decided it didn’t look good for me to be living peacefully in a dormitory at Angola while Caldwell was going around telling everyone how dangerous I was. (Later we would learn prison officials started colluding with the attorney general’s office to look for reasons to move me and Herman out of the dorm.) One day that fall a couple of guards showed up at the dorm and told me and Herman we’d violated disciplinary rule “30C.” A 30C was a catchall charge standing for anything that was not specifically spelled out in the disciplinary rule book. They put us in the dungeon. George Kendall and his team went into action, filing for discovery on the reason we were put in the dungeon and seeking our release.
I was still in the dungeon on Tuesday, November 25, 2008, when Nick called me with surprising news. Judge James Brady had ruled I had the right to bail while awaiting the state’s appeal, pending court approval of my housing plan. If I could find appropriate housing, I could go home. Judge Brady said he found no evidence that I was a danger to society, pointing to my age and my “exemplary record of conduct” in the last 20 years. He also pointed to my diminishing health, describing me as “frail and sickly.” I hated that, but I had to admit it was true. Judge Brady called for my immediate release while we waited the appeals of my habeas relief.
The state filed an emergency appeal before the Fifth Circuit, asking that Judge Brady’s ruling granting me appeal bail be put on hold until a hearing before a three-judge panel could be arranged. Assistant Attorney General Mary Hunley, citing my criminal convictions for “armed robbery, aggravated escape, aggravated battery, burglary and car theft,” told the court: “It is evident that if he is released, this career criminal would be considered both dangerous and a flight risk.” Notably, she said nothing about rape. A panel of judges on the Fifth Circuit blocked my release for another week and then denied appeal bail altogether.
I was in the dungeon for about a month when I was finally handed an investigatory report that told me why I had been moved there in the first place. I was removed from the dorm, placed in the dungeon, and then sent back to CCR based on charges that I had “abused phone privileges.” I’d been on 10 three-way calls, which generally are prohibited in prison but are very commonplace. Six of those calls were with our lawyers, and we were allowed to have those. The other four were with Noelle Hanrahan of Prison Radio—the calls I made to her when I was giving her my statement refuting the rape charges. I was also charged with “deliberate misrepresentation of information on my call list,” because I’d described Noelle as a “friend” and not as a journalist. Of course, this was no misrepresentation: I considered her a friend. Besides that, there was no place on the form that asked for or gave you space to write down the occupations of your friends. Finally, I was charged with releasing an “unauthorized press release” by speaking to her, and prison officials claimed I was making inflammatory statements that would provoke security issues in the prison. Herman was also charged with trumped-up disciplinary violations related to misuse of phone privileges.
Chris Aberle and Nick Trenticosta continued to defend me in the press. Nick told reporters that Attorney General Caldwell’s charges were “scurrilous allegations, a litany of offenses that don’t exist.” But the truth didn’t stop Buddy Caldwell, who continued to tell the Advocate that he would try me on rape if I was released. “Those charges are still viable,” Caldwell told the paper. “We’ve got living witnesses out there. If we’re going to err, let’s err on the side of keeping him in prison.” Recklessly, callously, he made these claims knowing that he could never support them.
In November 2008, I was deposed again for our civil trial. The state’s attorney Richard Curry questioned me.
Q. Mr. Woodfox, what facts are you aware of that would support your allegation that you’ve been confined in lockdown for 28 to 36 years, and other adverse actions being taken against you, because of your perceived political beliefs and affiliations?
A. Well, the fact within itself that I’ve been held in CCR for approximately 35 years, with the exception of the three years I was in Amite City, Tangipahoa Parish Jail. I had the opportunity to see all the inmates with disciplinary records that were just horrible, released from CCR. Basically, that’s all that we are evaluated on in CCR, conduct. I’ve seen guys come out of the dungeon or come from Camp J and a couple of months later they’re released from CCR.
Q. Part of what you’re contending, I believe, is that you’ve remained in CCR all this time because of your political beliefs?
A. Yes.
Q. What facts do you have to support that?
A. The fact that I’m still in CCR for approximately 35 years or more, the fact that I have an excellent conduct record, the fact that there’s absolutely nothing that I can do to be released from CCR, while I’ve had the opportunity to observe other prisoners in CCR who have horrible conduct records and who have been released from CCR.
Q. And you’re also contending that you’ve remained in CCR in part because of your perceived political viewpoints and opinions; is that correct?
A. Yes.
Q. And what facts do you have to back up that allegation?
A. Again, the fact that nothing that I can do will allow me to be released from CCR, as well as Warden Cain’s own statements.
Q. And you’re also claiming that you’ve remained in CCR because you’ve availed yourself of your fundamental right to court access. What fact do you have to back up that statement or that claim?
A. The fact that I’ve been held in CCR thirty-something years, the fact that I have an excellent conduct record, the fact that I’ve not been involved in any incidents that other prisoners have who have been released from CCR.
Q. You also allege that you’ve remained in CCR in part because of your race; is that correct?
A. Yes, the race part came in a statement Warden Cain made himself in the deposition he gave when he specifically singled out “Black Pantherism.” All the members of the Black Panther Party were African-Americans, the Black Panther Party’s philosophy was basically to help African-Americans.
Q. Are you contending Warden Cain is a racist?
A. I don’t know enough about Warden Cain to say he’s a racist.
Q. Are you contending that he’s keeping you in lockdown because you’re black?
A. Based upon his statements, yes.
In December, an art exhibit called The House That Herman Built opened at the Contemporary Arts Center in New Orleans. The artist Jackie Sumell had written to Herman years before, asking him what his dream house would look like. Over several letters, sketches, phone calls, and visits, he answered her. She created an art exhibit around his vision that included blueprints, architectural drawings, models, and a computerized virtual tour of the house Herman wanted to build. She incorporated his drawings, excerpts of his letters, and the paper flowers he used to make. She also built a walk-in wooden replica of a six-by-nine-foot prison cell. The installation would travel throughout the United States to cities including Philadelphia, San Francisco, and Augusta, Georgia, and around the world, to Poland, the United Kingdom, Germany, and France. It helped raise awareness about the horrors and abuses of solitary confinement among many who never would have been exposed to the issue. Visitors to art galleries and museums who walked into that wooden cell had a chance to imagine life in solitary confinement. A filmmaker, Angad Singh Bhalla, made a documentary about Herman’s collaboration with Jackie, called Herman’s House.
Herman had a garden filled with roses and delphiniums in the front yard of his dream house. He had a wraparound porch and a greenhouse on the grounds so that, as he explained to Jackie, he was “never far from growing things.” There were six microwave ovens in his huge kitchen to accommodate all his guests. Portraits of John Brown, Harriet Tubman, and other abolitionists hung in the living room. The picture window was bulletproof. The swimming pool had a huge black panther painted across the bottom. Herman’s bedroom had an escape hatch that led to a s
urvivalist bunker. The house, he told Jackie, would be made of wood so in case of attack it could be burned to the ground.
Chapter 47
Never Apart
Back in our CCR cells, we were still a problem for Buddy Caldwell. Exposure about our case was growing. George Kendall told me and Herman to prepare to be separated for good. Apparently, Caldwell had approached Burl Cain and asked him to move me and Herman to separate prisons. We heard that Cain agreed because, in part, the publicity about the A3 was hurting the Angola brand. They moved Herman first, in March 2009, to the Elayn Hunt Correctional Center in St. Gabriel, about 12 miles southeast of Baton Rouge, creating a brand-new CCR there to house Herman (and adding other prisoners to fill it).
Herman and I were used to being apart. Except for the nine months total we’d spent together at Angola, in the dorm and in CCR, we had not lived together. We stayed close by sharing books, photos, music, and constant correspondence, passed back and forth over the years in the hands of orderlies, trustees, and sometimes even prison guards. We gave each other birthday bags filled with zuzus (snacks) and items from the prison store. When one of us was on the yard the other would call down from the window if he was out on his hour.
But the extraordinary, mysterious, and inexplicable success of our friendship was based on something else. In different cells, on different tiers, sometimes in different buildings, and now in different prisons, our keepers could never come between us. Herman had my back. I had his. If I needed him he was there. Not physically, but instantly. I’m not religious. I don’t believe in God. But I believe in the human spirit and I believe human beings have a greater capacity than we understand. Behind the pain, the betrayals, the brutality, and the disappointments, Herman, King, and I existed somewhere, unhurt and together. After we were moved to different prisons, Hooks and I wrote to each other at least once a week, sometimes more. I adjusted. So did he. It’s what we did best.
Later that year, on October 9, 2009, the Louisiana Supreme Court summarily denied Herman’s application for review. He would have to seek relief in federal court. By now George Kendall and his team had taken over Herman’s criminal case, as well as mine. George, Corrine Irish, Carine Williams, and Sam Spital were already working on Herman’s first federal appeal, his petition for a writ of habeas corpus.
There were six claims in the writ, including that the state failed to correct false testimony it had presented against Herman, noting, for example, the statement from Howard Baker recanting his 1974 testimony, admitting that he lied when he said he saw blood on Herman and stating that it would have been impossible for Herman, or anyone, to burn clothes at the tag plant because there was no furnace there. The state also withheld impeachment evidence and exculpatory information from Herman’s defense, failing to disclose, for example, an April 20, 1972, statement given by an inmate named Charles Evans. George said in the writ:
According to the statement, Evans lived in the Pine 2 dormitory, next door to Pine 1. Evans stated that on April 17, 1972, he was awakened at 7:51 a.m. to see [a] “large group of people standing between Pine 1 and Pine 2. I heard somebody in [the] crowd say that it was a free man that was fighting. I saw an old man I know as ‘Hezekiah’ standing at the door of Pine 1.” Evans further stated that he saw “a free man running toward Pine from Walnut dormitory.” Unfortunately, prison officials failed to record any more details of Evans’ recollections. What is clear, however, is that Charles Evans’ recollection of events on the morning of April 17th, 1972 was inconsistent with the State’s theory of the case and undermined the credibility of the State’s witnesses. Certainly, Evans’ testimony would have been valuable impeachment evidence for Mr. Wallace, inasmuch as it would have called into question the testimony of all four inmate witnesses against him, each of whom—denying at times even the presence of each other—claimed that few people were present at the murder scene.
Moreover, if defense counsel had been provided Mr. Evans’ statement, he could have investigated further, to interview Mr. Evans and to seek the names of other prisoners who were part of this “crowd” present at the time of the murder. One among the crowd may have had information as to who actually killed Brent Miller.
Another claim in Herman’s writ was that he was “impermissibly convicted” because of the discriminatory selection of the grand jury that indicted him. His first grand jury indictment, in 1972, was quashed because the grand jury excluded blacks and women. When Herman was reindicted, in 1973, his second grand jury also excluded blacks and women. He filed a motion to quash that indictment as well. At a hearing on January 7, 1974, just before his trial, his judge denied Herman’s motion. George’s team went back and looked at the testimony at that 1974 hearing and at the law during that era and found that women were systematically excluded from grand juries at that time. According to Article 402 of the Louisiana Code of Criminal Procedure at the time, “A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.” Ruth P. Daniels, a member of the West Feliciana Parish Jury Commission at that time, testified that registered voter lists compiled and sent to the jury commission only included male registered voters because “no [woman] had ever asked to serve.”
“The trial court’s refusal to quash the second indictment requires reversal of Mr. Wallace’s conviction,” George wrote, “because the systematic exclusion of female citizens from grand jury service violated the equal protection clause of the Fourteenth Amendment.” On December 4, 2009, Herman’s habeas writ was filed in U.S. District Court for the Middle District of Louisiana before Judge Brian A. Jackson.
In 2010, King and one of our longtime A3 supporters in England, Nina Kowalska, met with Tessa Murphy, who headed the U.S. research team for Amnesty International, about our case. Nina, I later learned, pretty much told those gathered for the Amnesty meeting that she wasn’t leaving until they took us on. It didn’t have to come to that. Amnesty wanted to look at the issue of solitary confinement in the United States and issued a press release, stating that our incarceration in solitary confinement was a violation of human rights and calling for our release from solitary.
That June brought a crushing blow. I lost the habeas relief that had been granted by the district court. A sharply divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed Judge Brady’s ruling, reinstating my conviction. The Fifth Circuit ruled Brady “erred” in concluding I had ineffective counsel in my second trial and maintained that while my trial “was not perfect,” I couldn’t prove there would have been a different outcome with different counsel. The court used President Bill Clinton’s Anti-Terrorism and Death Penalty Act as the primary reason for reinstating my conviction. That statute requires that federal courts defer to rulings made by the state courts as long as those rulings are not “unreasonable” or “contrary to clearly established federal law.”
I was depressed. I tried to sound upbeat with my brother Michael, my attorneys, and my friends. This news was just as hard on them as it was on me. So many people worked and fought so hard for me—my lawyers Chris Aberle and Nick Trenticosta, who had drafted my habeas petition and worked on the appeal; George Kendall and his team, who had joined my habeas case in 2008 while working on our civil lawsuit; all my friends and our supporters, who were raising awareness on the street and in Washington; my brother, keeping my spirits up in the prison visiting room. I couldn’t believe the sacrifices they made for me, the commitment they made to me, I couldn’t let them know the pain I was in. I fell back on self-discipline to fight depression. I kept up with my routine. I went on the yard when I was allowed, even though the thrill of being there was gone for me. I got no pleasure from that yard anymore. I only went outside to force myself to exercise. Herman wrote to me, asking how I was. I wrote back, “This one hurts but I’ll be all right. It’s just taking a li’l’ longer to catch my breath on this one. It’s strange
rearranging my hopes, dreams, plans, and expectations but I’ll get it done.”
There was one saving grace in the Fifth Circuit’s ruling. The higher court sent my case back to Judge Brady for a determination concerning my final claim: that racial discrimination influenced the selection of my grand jury foreperson in 1993. This would be my last chance to get out of prison. The courts had already ruled on all of the other issues I was eligible for. A prisoner can only go to federal court on issues that were preserved in his original appeal. If the courts decided that this claim didn’t warrant relief, then I would die in prison. I would get an evidentiary hearing on this issue.
I forced myself not to be discouraged, I forced myself not to give up hope, I somehow found the determination to fight on. But I wasn’t unscarred by this back-and-forth, my hopes being raised and crushed over and over. Meanwhile, our civil suit claiming that our years in solitary confinement constituted cruel and unusual punishment progressed; we were told we might have a trial date soon. Psychologist Craig Haney came back to prison to interview me and Herman again. He noted “unmistakable, dramatic change in appearance and demeanor” in both of us. He wrote that I seemed “down, defeated and somber.” Herman, he wrote, was “hesitant . . . voice cracking.” Herman told Haney he was worried he’d reached “the end point” and was afraid he “can’t stand up to it.” “Herman began to tell me that he felt sad, but was trying to stay strong,” Haney wrote. “And then he began to cry. After he regained his composure, he talked about the pain he could see in the men in the cells around him. He told me they ‘act up terribly’ but also that he understood it was not their fault.”
On November 1, 2010, it was my turn to be moved out of Angola. I was taken to David Wade Correctional Center, a four-hour drive north, in Homer, Louisiana. I was now in the northernmost prison in the state; it is Louisiana’s Siberia. Herman was in the southernmost. There was no CCR at Wade, so they created one, filling it with twelve prisoners from Angola who were moved with me. I never got the impression the other prisoners blamed me. They knew that I had no control over this move and had done nothing to cause it.
Solitary Page 34
