Ross got in touch with my original attorney, Mickey Steiman, to ask about the new material he had found in the Regula report. Mickey, it turned out, had been so disheartened by the miscarriage of justice in my case that he gave up criminal law altogether after I was convicted for the second time. Had Mickey been aware of the statements neighbors had given police contradicting the accounts of Lamar Smith and Wayne Moseley? Ross wondered.
Mickey was dumbfounded. He had never been given that full report.
Back at WilmerHale, Ross learned that a member of his pro bono team was leaving to accept a new position, meaning he was about to lose a quarter of his workforce just as the already staggering workload on my case was growing even heavier. He went to the neighboring office of his friend and colleague, Shauna Friedman. “C’mon,” Ross implored her, “how could you not want to be part of this?” Shauna knew that stepping up to join the team would mean sacrificing the precious little free time junior associates have to begin with. She and her husband, like Ross and his wife, were just shifting from the newlywed chapter of their lives into planning a family. She told Ross she would think about his offer overnight. The next morning, she agreed to come aboard.
With the new material in hand, Ross and Shauna began working on a brief to convince a judge there was enough evidence to exonerate me, or at least grant me a third trial. Why anything to do with the legal system is called a “brief,” I’ll never know, because such documents are anything but brief. By now, though, Ross was starting to get excited. He and his team had taken on my case determined to do everything they could to help me, but we were all well aware that finding anything new was a long shot thirty years after the crime. Ross’s supervising partner, Peter Macdonald, had warned the lawyers early on not to get their hopes up. Righting an injustice only unfolds quickly and dramatically in the movies. In real life, trying to overturn a wrongful conviction is more often than not tedious, exhausting, and discouraging work, like putting a landslide back on top of the mountain with your bare hands, clearing the debris fistful by fistful. Learning that the prosecution had hidden evidence favorable to my defense could prove to be the game changer WilmerHale needed, though.
“We’ve got potential Brady material,” Ross let Peter Macdonald know.
In 1963, in its landmark Brady v. Maryland decision, the U.S. Supreme Court ruled that it is a violation of a defendant’s constitutional rights to due process for the prosecution to withhold any requested evidence favorable to the accused if that evidence is considered material either to guilt or to punishment. Whether the prosecutor acted in good faith and accidentally omitted the evidence, or willfully or maliciously did so, didn’t matter as far as the court was concerned. Under today’s Brady guidelines, prosecutors must automatically disclose any favorable evidence to the defense. If the D.A. or police had something such as a statement shooting down the credibility of one of their witnesses or piece of physical evidence that contradicted their theory of the crime, O’Neill was bound by law to share it with Mickey and his cocounsel, David Steinberg, before trial. Even evidence that doesn’t point to innocence but could result in a lighter sentence has to be turned over. But that one word in the Supreme Court ruling—“material”—leaves a wide berth for interpretation by prosecutors, who often defend themselves against charges of Brady violations by arguing that the evidence they withheld was not “material” and would not, in fact, have enabled the defense, changed the verdict, or affected the sentencing. At best, it’s still speculation: Who can really know except the jurors themselves what might have changed even a single crucial vote from guilty to innocent?
The similarities between the Crapser murder and the subsequent attack on the three King sisters had sent up a big red flag for the WilmerHale team from the get-go. First of all, both crimes were committed late at night against elderly white women in their homes just blocks apart. Emma Crapser and Mary King were asphyxiated by having cloth stuffed down their throats, and Catherine King, who survived, reported that her assailant had stuffed cloth and some kind of object into her mouth. The three King sisters and Emma Crapser were all bound and beaten in similar fashion. The attacks occurred within mere months of one another. Both apartments had been cased earlier in the day: Emma Crapser had expressed concern about the phony plumber whose description matched Donald Wise, while the Kings had accepted the Wise brothers’ offer to shovel their snowy walkway earlier in the day and allowed them to come inside to warm up. Once inside, they had stolen a key to the apartment, which they used to gain access for the brutal crime later that night. Furthermore, both the King and Crapser attacks showed excessive violence—far beyond what it would take for a young man or teen to overpower an elderly woman in order to commit a robbery.
(That police suspected a link between the Crapser and King attacks was obvious, since they had immediately turned to their two main suspects in the unsolved Crapser case—me and Wayne Moseley. I was arrested and questioned in the King case two days after the murder, on February 22, 1978, but was immediately cut loose when my alibi checked out—I had been home sleeping. Moseley was asleep, too; police found him locked up in a state school for juvenile offenders. Next on the interrogation list were the Wise brothers. Anthony confessed that he, his brother Donald, and a guy named Saul Holland had carried out the King attack. Three sisters of Donald and Anthony, plus Anthony’s girlfriend, Madeline Dixon South, also implicated the Wise boys.)
Even with all the new and previously undisclosed evidence in my favor, Ross knew that getting a judge to agree it merited a new trial would be a whole new courtroom battle with the D.A.’s office, one that could potentially drag on for months, if not years. Sending an innocent man to prison is far easier to do than undo, and I knew too well that O’Neill’s arrogance and ambition would never allow him to admit he had made a terrible mistake, let alone try to right the wrong. He would fight this until he was on the ropes and couldn’t get off.
I had already spent what by now amounted to half my life in prison for a crime I didn’t commit, and Ross figured that the quickest way to free me would be to win parole. Since parole is generally determined by factors such as time served, rehabilitation, and accountability, citing new evidence and Brady violations was a long shot, but we had nothing else to lose. WilmerHale began putting together a fat portfolio to present to the parole board at what would be my fourth hearing. When they were done, there were 168 pages of documents supporting my release, bound together in a spiral book. There were copies of my diplomas and some of my fifty-plus certificates. There was also an eight-page report by an esteemed Harvard professor of psychiatry, Dr. James Beck, who concluded after two days of interviewing me that I wasn’t a psychopath or antisocial, had above-average intelligence, and posed no threat of violence to the community. The doctor noted that I had made everything I possibly could of my life behind bars and was fully rehabilitated. I had been sober for twenty-three years and had become a man of deep faith. Plenty of people who had met me through the various programs I completed at Sing Sing went on record saying they were willing to give me a job when I got out.
Dr. Beck noted in particular what a strong impact a prison program by the Quakers on restorative justice had made on me. It’s true: that program changed my whole perspective on crime. The program brought people who had been crime victims in to discuss what crime had done to their families. I remember this one young college coed came in to talk about the murder of her father. She didn’t go into details about what had happened to him. She and her two brothers had been going to school, and the dad was the family’s sole provider. When he died, all three kids had to quit school to take care of the household and help their mother. That really got to me. I had just never thought of the aftereffects of what I was doing when I was robbing and stealing and going around mugging people. What I might have done to that person’s family, how my actions over the course of a minute or two could tear them down, had never entered my mind before. I did what I had to do, I survived, and that’s it; it
was in and gone and I didn’t think about it anymore. But hearing this girl’s thoughts and seeing her pain eye-to-eye, and hearing how it had taken away her education—that made me really look at life and the people I choose to be around me a lot differently. I had grown up knowing that I didn’t matter to anyone, I didn’t count. That my actions might have a profound effect on anyone else was honestly beyond my grasp. The girl who spoke to us that day in Restorative Justice helped me to see who I am and what I need to do as a human being to totally make sure that this never happened again with my life, that any impact I made was positive. Trena and Diamond spoke of my determination to make a positive contribution to society in their letters to the parole board, too. I also had letters of support from teachers, mentors, even prison officers. All of them put their own reputations on the line for me, vouching for my good character, and their belief in me kindled the smallest spark of hope as I stood in front of the board again in November 2008, praying that these strangers who never knew me would see I was a good man, ready to reenter society and live a peaceful and productive life with my wife and stepdaughter. I had written my own letter to the parole commissioners, as well, sharing my dreams of getting a job, providing for my family, and rebuilding myself in the eyes of a society that had written me off. I fantasized about going to the zoo, plays on Broadway, museums, the beach, an amusement park.
I expressed no remorse.
This time, Ross and his team tried to break the cycle of no-remorse-no-release by arguing that it unfairly put me in a catch-22 situation. It was impossible for me to meet the parole board’s standards of demonstrating an appreciation for the nature and seriousness of the crime and show remorse when I had had nothing to do with it. It was like saying you can go to heaven only if you admit that you’re Satan. I maintained my innocence consistently for over three decades, and never once changed my story even when a false confession could have spelled freedom. What the parole board needed to consider, WilmerHale suggested in a letter to the board, was that I was telling the truth, and to take measure of the lack of evidence, not the lack of remorse. “There have been, and likely will continue to be, instances in our criminal justice system where mistakes are made and people are wrongly convicted,” my lawyers reminded them. “We urge the Board to consider that Mr. Bozella’s claim of innocence has been correct all along, particularly in light of the new evidence that we have discovered during our investigation.”
The parole board turned me down again but suggested the new evidence be used to petition the court for a new trial. Ross was planning to do that already, of course, but he took it as a good sign that the Brady violations were as obvious to someone else as they were to the WilmerHale team.
No matter how often I heard it, being denied parole still sucked the hope from me. What more could I do to prove myself? I had rebuilt my own character from whatever scraps of faith, hope, and charity I could scavenge behind prison walls, but it still wasn’t enough. Trena overruled the latest rejection with her own fierce verdict.
“You’re not getting out on parole, Dewey,” she told me. “You’re going to walk out a free man.”
Not long after that, I found out that we’d gotten back onto the trailer rotation and called her with the happy news that we would get a conjugal visit in a matter of months. Trena laughed. “Well, we’re not going to need it,” she said. “You’re going to be home by then. I know it.” I let her keep hold of her happy-ending fantasy. I wanted to believe it, too.
A YEAR AFTER TAKING ON THE CASE AND ASKING THE D.A.’S OFFICE FOR ITS FILES, and only after filing a formal demand under the Freedom of Information Act, WilmerHale got a response from the D.A.’s office about our request for the case files in January of 2009. When they finally got permission to come copy certain files they’d requested, Ross and Shauna went up to Poughkeepsie to have a look. “Here you go,” an assistant district attorney told them. They stared in disbelief. There were just two boxes from the Crapser murder, containing only material from the appeals, and nothing from the King case.
“There must be more,” Shauna politely insisted. Grudgingly, the D.A.’s office produced a bunch of boxes on the King case, as well. The lawyers were given only a few hours to peruse and madly copy one page at a time. They eventually carted hundreds of pages of material back from Poughkeepsie. Sorting through their newly acquired files on the King murder, the WilmerHale team was stunned to come across a report about a third lookalike attack during that same time span and in the same area—a crime police had yet again linked to Donald Wise.
This one happened less than two months after the Crapser murder and six months before the King murder, when an eighty-two-year-old white woman named Estelle Dobler had been found severely beaten on her bedroom floor with her hands and legs bound. A stocking had been stuffed in her mouth, which was taped shut with black electrical tape. Ms. Dobler told police two black intruders had attacked her, one of them quite short. He matched the description of Donald Wise, who barely cleared five feet tall. Ross could find no record of any arrest or charges in the Dobler case, though, and there was no paper trail to suggest that police even bothered to go back to that case and reexamine it after they nailed the Wise brothers in the King case. Was there ever even a lineup after the King confessions to see if Estelle Dobler could identify the Wise brothers or Saul Holland? Not from what Ross and Shauna found.
Poughkeepsie police clearly knew that they had had three gruesomely similar cases in quick succession—Crapser, then Dobler, then King—with a confession and the survivors pointing toward Donald Wise, but investigators made no effort to put the pieces together. Instead, they sent the two Wises away for the King murder and called it a day. There were no similar attacks after they were locked up. So now the King case was solved, the Dobler case was being sidelined, and the Crapser case remained open.
Five years had passed, remember, since the time the first grand jury refused to indict me right after the murder and my arrest. Five years that O’Neill and his minions had had to dig up anything corroborating Lamar Smith’s story about seeing me and Wayne Moseley break into 15 North Hamilton that night, but still they had none. What they did have was mounting evidence that I didn’t do it, but once they had decided to lock in on me as the scapegoat in the Crapser slaying, they weren’t going to look elsewhere. The evidence in my favor, the district attorney’s office determined, was best kept secret or destroyed.
The disturbing revelations kept coming as the WilmerHale team continued to plow through the mountain of newly released D.A. files.
My attorneys could see that the only reason the Dobler report was even tucked into the King file was because Donald Wise had, in fact, been considered a prime suspect in the Dobler attack, though no one appears to have ever been indicted or charged. Less than a month after the Dobler attack, Art Regula and a fellow detective, Enno Groth, with the knowledge of Assistant D.A. Otto Williams, had interviewed a friend of the Wise brothers at police headquarters. Christopher Gill lived in the same apartment building as Mrs. Dobler, and he told detectives that Donald Wise had been at his place until eleven thirty that night. Gill reported that Wise stayed behind in the building after Gill went out. He also said Wise had made some reference to Mrs. Dobler, but when pressed for details, Gill clammed up. Police records also showed that investigators had compared the Dobler and King crimes while building their King case to show that Wise used the same modus operandi more than once, and his crimes bore a telling signature in the gruesome way the elderly women were savagely beaten, bound, and suffocated. But the homicide detectives’ basic connect-the-dots skills were either very, very bad or very, very shady, because the link between the Dobler and Crapser cases was even clearer than the link between Dobler and King: not only was the modus operandi similar, but Donald Wise’s fingerprint was right there on Ms. Crapser’s bathroom window (even though investigators didn’t bother to process it for five years, until right before my first trial in 1983). So why was the Dobler report kept out of the Crapser
file, and never disclosed? Because, the D.A. argued when WilmerHale demanded an answer, they didn’t consider any of this “favorable.”
Also squirreled away inside the district attorney’s file of the King murder was a cassette tape from a Poughkeepsie police interview of Saul Holland on January 23, 1978. No one on the prosecution side had mentioned this telling piece of evidence in my favor for thirty-one years, either. Holland was the Wises’ accomplice in the King attack, and the police recorded an interview with him just one day after a Poughkeepsie newspaper had quoted the district attorney himself saying that law enforcement officials saw a possible “parallel” between the King and Crapser murders. The WilmerHale team asked the D.A. for a copy of the tape.
When Shauna read the transcript on a Saturday night, she couldn’t believe her eyes: here was Saul Holland telling Assistant D.A. William O’Neill and two arresting detectives that Donald Wise had boasted of having committed a similar crime and getting away with it before the King murder.
“Oh, they had did—they had did one of these jobs here before,” Holland said, adding that Donald Wise had assured him “you ain’t got nothing to be scared of or nervous about.” Holland then described what Wise had told him about the previous crime.
“He said the way they did it, they, you know, when they got to the house, there wasn’t nobody there, you know, and they just found all this money and stuff and then around 9 or 10 or 11, that’s when the lady came home. She must have come home.”
His interrogators cut him off before he could go on.
Holland’s recorded statement had been taken only after O’Neill and the two cops had conducted a preliminary interview; listening back to the taped version, Ross and Shauna could tell that this wasn’t the first time investigators had discussed this with Holland, and that they were keen to keep him focused only on the King murder once they hit the record button. There was no unsolved crime in Poughkeepsie other than the Crapser murder that could remotely fit the description Holland had just given of an earlier Wise attack, yet none of the three investigators expressed any surprise or even interest in the major lead Holland had just dropped in their laps. Just the opposite: one of the cops, Officer William Grey, hastily interrupted Holland to try to get him to go back on script.
Stand Tall Page 16
