Ghost of the Innocent Man

by Benjamin Rachlin

  He knew, he said. He saw it on TV.

  When he hung up, the secretary led him into an office where she’d set a laptop on a desk. She sat him in a chair and pressed Play. The whole hearing had been videotaped, she said excitedly. She wanted him to see what everyone had said, when he wasn’t in the room.

  In Raleigh, Kendra wrote to Chris Mumma and the Catawba County district attorney’s office to let them know that, by statute, the chief justice of the North Carolina Supreme Court now had twenty days to appoint three judges for Willie’s panel. Once that happened, the IIC’s work on the case would be complete, and Kendra would step back and assist only as requested. The rest was up to Chris and the DA. Into each envelope she dropped a flash drive containing transcripts of every interview Lau and Stellato had conducted and documents from every agency she’d subpoenaed.

  From attending each day of Willie’s hearing, Chris already knew, at least broadly, what the IIC had uncovered, but now she and her center staffers pored through the agency’s entire file, encountering police and laboratory reports, interviews with victims they’d never heard of, and more documents they’d never seen. Finally, Chris arrived at Steve Hunt’s personal file. It wasn’t unusual that Hunt had kept one, she knew—many officers did—but now she realized something else. HPD policy back in 1988 had required that officers turn their formal reports over to the district attorney’s office, where subsequently these became available for defense attorneys in preparation for trial, during discovery. This included incident, arrest, medical, and forensic reports. But no policy governed officers’ informal reports, meaning handwritten notes or memos or even test results shared verbally rather than typewritten. And any folder an officer kept personally, separate from its counterpart at HPD, should have been synchronized, so that neither file held something the other didn’t. No one monitored this closely, however, so often one did.

  All this meant that the original lineup shown to Carrie Elliott—the one in which Albert Turner appeared, with his name written on the reverse, so anyone who saw it might conclude he was a suspect—had never made it out of Steve Hunt’s personal folder. When Ed de Torres phoned Hunt before trial, asking for evidence, and Hunt referred him to the district attorneys, technically Hunt had been telling the truth: it wasn’t his job to provide de Torres anything directly. That was the DA’s job. But Hunt had neglected to mention the most important fact. His personal file included pages he’d never turned over. So when de Torres did write the DA’s office, they, too, had told him the truth: the office held nothing more to give him. But the DA hadn’t mentioned, and possibly hadn’t known, what lay in Hunt’s personal folder. This explained how de Torres had made it to trial without ever learning fingerprints had been recovered from Carrie Elliott’s apartment, and why no one outside the HPD had known at all about Albert Turner—until the IIC subpoenaed Hunt’s file. Meanwhile, when Chris had phoned and e-mailed Hunt personally, in October 2007, asking if he knew where Willie’s evidence had vanished to, Hunt had written back that he had no idea. But this was only partially true. He didn’t hold the nightgown, or rape kit, or discarded fruit. But he did still hold his personal folder, with that original lineup. He’d been using it to teach courses at the community college. When Lau and Stellato visited him, it lay there on his office desk. And he hadn’t said a word about it to Chris.

  All that, plus commissioners’ agreement it merited judicial review, left only one logical path forward, Chris knew. Technically, by IIC statute, no three-judge panel needed to be held at all. As long as the DA’s office agreed this new evidence proved clearly and convincingly that Willie was innocent, then both sides could file a joint motion to dismiss, alongside a plea for declaration of innocence, thereby vacating Willie’s convictions and freeing him. Obviously, the evidence proved this. Chris phoned the DA’s office, drafted the relevant motions, and mailed them along.

  A reply arrived in early autumn. This was new evidence, the DA agreed. None of it proved Grimes innocent, however, or that anyone but him was the true rapist. “At most,” the response read, this new evidence suggested “residual doubt,” which depended on “supposition and conjecture.” Willie’s plea of innocence, therefore, “should be denied.”

  To a local news station, the DA elaborated. If Grimes truly was innocent, then he needed “compelling physical evidence” that showed he was elsewhere at the time of the crime, or that implicated a third party. “And we just don’t have that,” he said.

  Chris felt stunned. Five months since Willie’s hearing she’d passed expecting to avoid a three-judge panel, and now it was scheduled for October 1. Quickly she filed an order for appointment of counsel. Willie was entitled to a court-appointed attorney, and Chris intended to get him one, regardless of her own involvement. This way he would have two attorneys, one local, both free—Chris because she worked pro bono, another through Indigent Defense Services.

  A phone rang in an office up in Taylorsville, twenty miles northwest of Hickory, on the desk of Robert Campbell, a defense attorney. Campbell reached for the receiver. It was the assistant director at Indigent Defense Services. She had a proposal for him, she said.

  Campbell glanced at his calendar. Late August. “Let me get this straight,” he said into the phone. “You want me to jump into the middle of a case, trial date a month from now. With a lawyer I’ve never met. For a type of panel I’ve never seen?”

  “Yes,” the voice told him.

  Ordinarily, Campbell didn’t take postconviction work. On the other hand, he recalled hearing of the IIC, feeling intrigued by it. Here was somebody who needed his help. Hadn’t he become a lawyer to help people? “Well, okay,” he said. “As long as I have that straight.”

  The following day Chris Mumma phoned, promising to share her files. Campbell began reading.

  Within the week, the pair were working twelve-and fifteen-hour days, phoning and e-mailing daily, sometimes hourly. Every so often Campbell drove the two hours east, to collapse into a chair in Chris’s office and go over what he’d read. Until the phone call from IDS, he’d been preparing other cases, but now he put them all aside. Together he and Chris mapped every question they planned to ask of every witness they planned to call. They assembled a list of every documented instance over Willie’s long incarceration that he’d insisted to his case manager or psychologist, or in a letter to the clemency office, parole commission, or Prisoner Legal Services, that he was innocent. They drove to Gastonia, so Campbell could meet Willie personally. They prepared to visit Albert Turner but discovered a problem. Turner had left his room in the nursing home. There was no forwarding address. Campbell phoned a private investigator he knew, who managed to find where Turner had gone. Catawba County jail. He’d gotten arrested again. Chris and Campbell drove there to see him. From an initial description, Chris thought she remembered Carrie’s assailant without much hair on his chest, so now she leaned close and peered down the loose collar of Turner’s jail uniform. No luck. She tried again. Too close. Turner reeked; liquor, sweat, something rancid. She recoiled. “Don’t touch him,” Campbell scolded.

  Was there anything Turner wanted to tell them, about Carrie Elliott or Willie Grimes?

  No. Turner didn’t know anything about that.

  They visited Bobby and Tamera Elliott, up in Conover. Turner was claiming he often visited Carrie’s apartment, to chat or bring groceries or use her telephone, Chris confided to them. Was that possible?

  No, Tamera answered flatly. If her grandmother had befriended someone, Tamera and Bobby would have known about it. Neither had heard the name Albert Turner.

  Chris drove to Office Depot, to print a poster she and Campbell planned to introduce as an exhibit: the booking photograph from Willie’s arrest, arranged below Albert Turner’s, both magnified nearly to actual size. Not the outdated photograph of Turner, of him in dreadlocks, but the one police should have used, showing Turner’s true appearance in the month of Carrie’s assault. The resemblance was startling. Since then each man ha
d aged differently, so today they looked nothing alike. But in their early forties? Similar mustaches and short Afros. Similar long, wide noses. Similar pairs of deeply set eyes. To a stranger, and after dusk? It would be no difficulty at all to confuse one for the other.

  In her notebook, Chris scribbled a reminder for her opening and closing remarks. Tell story from Willie’s point of view. Put judges in his shoes. Onto her finger she slipped a ring she considered good luck: six thin, interlocking gold strands, shaped vaguely like the double helix of DNA. A gift from the first client she’d ever helped free. Around her neck she normally wore a small cross; this didn’t match her outfits for trial, but she refused to take it off. Instead she pulled it to the side and clasped it to the strap of her bra, where no one would see it. Then she remembered Bryan Stewart, meeting him on that visit to Willie at work release—how frequently he’d spoken of the Bible, the Kingdom Hall he’d built. She sent him an e-mail. “You have connections with upstairs,” she wrote. “See what you can do about this.”

  Albert Lindsey Turner, in unkempt dreadlocks. Courtesy of the Hickory Police Department.

  Chris’s poster. Top row: Albert Lindsey Turner. Bottom row: Willie James Grimes. Courtesy of the Hickory Police Department

  34

  A Type of Panel I’ve Never Seen

  The Catawba County Justice Center looked much the same as it had so many years earlier, an ample courtroom whose walls were wainscoted from carpet to ceiling, hung with crimson drapes and portraits of aged white men in suits. This time, on the bench at one end, in place of a single robed judge there sat three: a graying white woman in eyeglasses, her fingertips pressed together in concentration; a black man with clipped hair, sitting as still as a sculpture; and a slope-shouldered white man with the air of a country doctor. To their right sat a pair of Catawba County district attorneys. To their left, Chris Mumma and Robert Campbell. Across an ornamented banister lined nearly a dozen rows of fixed auditorium chairs, holding Kendra and Lau and Stellato, from the IIC, and, a few empty seats away, Willie, who wore a dark suit now, and Gladys and two of his nieces. Beside and behind them, filling the courtroom halfway, sat Bryan Stewart, Eddie Moose, and more than a dozen other friends and Witnesses.

  After her opening remarks, Chris summoned Sharon Stellato to the stand, to relate the discoveries of her and Lau’s investigation—which amounted to little more than fingerprints from an old banana, an assistant DA, Eric Bellas, pointed out on cross-examination. Bellas’s office had looked into it; just two grocery stores had operated in Hickory in 1987, and the one nearest Carrie’s apartment was also nearest Albert Turner’s. Was it so hard to believe that one of their fingerprints might turn up on the other’s groceries? Anyway, hadn’t Turner said he periodically brought Carrie fruit?

  It was this assistant, Eric Bellas, whom the DA, Jay Gaither, had assigned to handle most of the questioning. Of everyone on his staff, he considered Bellas most capable, likely a better cross-examiner than he himself was, and Gaither preferred to concentrate elsewhere. He liked to watch a trial unfold, to observe the defendant and judges and opposing attorneys all in real time, since it helped him get a sense of things, to determine what and whom he believed. He couldn’t do all that if he was also the one asking questions.

  Gaither was nearly fifty, with a considerable chin and forehead and the gait, handshake, and meaty shoulders of a linebacker, which in fact he had once been, in high school right there in Newton. His family had lived in Catawba County for nearly as long as white folks had lived there at all; he liked to boast that ancestors of his had signed the Mayflower Compact and fought for the Confederacy. In social conversation, Gaither often spoke so much, and so rapidly, that after ten or fifteen minutes he would confess to having forgotten what the question was. He’d been elected district attorney in 2002 and reelected twice since.

  The phone call he’d gotten a year earlier from Jamie Lau, explaining who Willie Grimes was, had surprised him, since he’d thought the IIC only took on cases in big cities. He knew the agency had never been popular with fellow DAs around the state, still recalled their grumblings when it had been up in the legislature, and a warning he’d heard from a colleague about how bad it might be. Personally he didn’t feel strongly either way, though he did get nervous at the prospect of overturning a jury verdict, especially years afterward, once time had diminished everyone’s recollection. A DA’s office had only so many dollars and hours to spend, and Gaither didn’t want to drain them by revisiting cases that were already settled. On the other hand, if somehow a man had ended up in prison who really was innocent, Gaither agreed they’d damn well better have some way to get him out. He wasn’t the sort of person to toss up his hands: Oh, well, over and done with, can’t fix it now. No! When Gaither’s own father had become a doctor, the first thing he’d learned was Do No Harm. The equivalent for a lawyer was obvious. Do Not Convict an Innocent Person.

  But there was more to this than people knew. One of the most difficult things for a DA, Gaither believed, was to proceed on a case—to examine the facts, reach a conclusion, prosecute aggressively, sometimes over months—all the while remaining available to alternatives, to the chance you’d missed something. Study a case long enough and all you saw were the same facts in the same order. It became easy not to notice, or not to take seriously, one that didn’t fit—not deliberately, but because a DA was human, too, and his job was to make decisions. Assigning his smartest assistant, Bellas, to examine witnesses was partly Gaither’s solution to this. Now he could observe the case fresh, and as a bystander. The IIC’s unusual procedure also meant the burden of proof fell not on him this time but on Grimes, so a certain pressure had been lifted. Gaither would sit back and listen, then speak up during closing arguments.

  Ed de Torres led Chris through his initial work on Willie’s case: the alibi witnesses, the affidavits he’d gotten them to sign. “To your knowledge, did the district attorney’s office, or the Hickory Police Department, ever interview any of those six alibi witnesses?” one of Chris’s colleagues, a staffer from the center, asked him.

  “They did not,” de Torres replied.

  The staffer waved a sheet of paper: a letter de Torres had written the DA, in March of 1988. “You specifically requested, quote, ‘Any fingerprints and any other physical evidence obtained at the crime scene.’ Is that correct?”

  “Correct,” de Torres said.

  “Prior to trial, did the district attorney’s office, the Hickory Police Department, the SBI, ever disclose any fingerprint reports to you?”

  “No.”

  When de Torres did learn of the fingerprints, at trial, that they hadn’t matched Willie’s but that the HPD had compared them to no one else’s, he’d asked the judge for—the staffer read aloud again from a transcript—“‘Cooperation of the State in sending copies of the prints to the FBI for comparison, to see if they have a match in their records.’” Had this ever happened? Had anyone run the fingerprints through any database?

  “Not until this year,” de Torres said, when the IIC had ordered it done.

  “So—for twenty-five years, that request was never fulfilled?”

  “That’s correct,” de Torres said.

  Fingerprints or no, Eric Bellas proposed on cross-examination, wasn’t it true Carrie Elliott had identified his client? Hadn’t de Torres had an opportunity, at trial, to cross-examine Ms. Elliott, specifically about that identification? Hadn’t he brought to jurors’ attention then everything he felt was important, in terms of the possibility she might have made some mistake?

  He had.

  “No further questions,” Bellas said.

  Jennifer Dysart, a psychologist who specialized in the science of witness identification, reported at Chris’s invitation that, by recent count, three hundred men and women in the United States had been exonerated by DNA, and, of those cases, 75 percent had included at least one eyewitness whose testimony turned out to be mistaken. Fully 30 percent had included multiple mistaken
eyewitnesses. Those numbers represented DNA cases exclusively, Dysart clarified—they didn’t include anyone who’d been exonerated by other means, counting which, obviously, there had been even more.

  All those witnesses, Chris speculated. “Were they lying?”

  “No, they were mistaken,” Dysart corrected. This was the subject of her research exactly. Had Chris ever heard a joke, liked it, repeated it to others, then one day turned to a friend and said, “Oh, I’ve got this great joke to tell you,” and the friend replied, “I know, I’m the one who told it to you”? “And all of a sudden you remember, Oh, that’s right,” Dysart said. This sort of thing happened all the time, to everyone. People naturally integrated new information into their memories, then overlooked where they’d learned what. With a joke among friends, this didn’t much matter. When a crime was involved? The science was identical, but now the stakes were so much higher.

  Eric Bellas wanted to know whether Dysart had personally read the HPD’s every file on Carrie Elliott. When Dysart acknowledged she’d read only a portion, Bellas wondered aloud whether she was familiar with the problem of generalizing. Wasn’t it impossible to include, just because research showed an overall trend, that it applied to any single, particular case?

  Well, yes, Dysart agreed. She was familiar with this; she taught graduate courses in research methodology. “Correlation is in generalities. You’re correct. It does not allow to give specific conclusions about a particular person.”

  So Dysart’s research really only allowed her to “look overall at a population,” Bellas suggested. “It does not give you the ability to form any opinions at all about the victim in this case, and whether her identification was accurate or not, does it?”