by Kyle Swenson
Could he get them out? As Kwame’s life was shaping up in Cleveland, Wiley was locked away at Lima, mostly in solitary confinement. Kwame couldn’t reach him easily. Rickey, however, was in Marion. Kwame mailed regular letters to his best friend. Rickey sometimes would lapse into long silences, months where the letters ceased and Kwame could tell his friend was buried under a deep depression. Kwame knew he needed help, someone who could jolt the case back to relevance. He needed someone like Terry Gilbert.
* * *
“Hello.”
Anyone who got Cleveland attorney Terry Gilbert on his office phone couldn’t miss it: the irascibility, like you better have a good fucking reason for phoning because you were ripping him away from more pressing business. You probably were. For more than three decades, Gilbert was on the front lines of nearly every controversial legal issue in Cleveland and beyond.
He radiated the same jammed-up, short-fuse energy in person—he was bald and short, and the smiles that made fugitive cameos on his face were cagey; his features seemed more comfortable in an irritated scowl, the game face he wore when tearing into police officers in court or blasting city hall on nightly television. To city attorneys and prosecutors, he was an opportunistic plaintiff’s attorney at best, a media-hungry bomb thrower at worst; to many people sitting in the Cuyahoga County Justice Center, he was a last chance. But it was easy to misread the brashness. Under the hard shell, Gilbert was simply a throwback, a man who had never been disabused of the ideals born out of the 1960s counterculture.
Law or radical politics weren’t in Gilbert’s DNA. From Cleveland Heights, the Gilberts were comfortably working class; Dad was a salesman for a snack company, Mom a housewife.2 Gilbert grew up boxed in by the Leave It to Beaver conservatism of 1950s America. He turned up for his freshman year of college at Miami University in 1966 as a blue-blazered, penny-loafered, pipe-smoking square. By the time he graduated, he was a shaggy-haired conscientious objector who’d attended Woodstock and been tear-gassed marching on his own campus.
It was a well-trod path for a generation. These were white middle-class kids nursed on Eisenhower, hypnotized by the images from the South of the civil rights struggle, and liberated by the escalation of the war in Vietnam. Social justice, voting rights, equality, unencumbered sex, freedom—this was a wave of young people who felt they’d rearrange the world along those lines. And for a true believer like Gilbert, this wasn’t just hippie shit. These beliefs were convictions running deep as church dogma. But by the time Gilbert got out of college in the 1970s, the movements were running on fumes. Optimism was yellowing at the edges. King, Malcolm X, the Kennedys were dead. The war seemed unending. The Black Power movement turned inward. If you were socially conscious, keyed up to change the world, suddenly the world seemed less friendly to progress. The legal system—which, along with the rest of the country, was undergoing its own radical alteration—provided an unlikely opportunity for remaking the system from within. “There were enough of us that were conscious of the idea that there was something more law could do,” Gilbert would later say.
In part, he was inspired after watching the Chicago Seven trial on television. Courtroom proceedings as absurdist theater, the trial featured Abbie Hoffman, Jerry Rubin, Tom Hayden, and other antiwar-movement figureheads fending off government charges following the police billy-club crackdown at the 1968 Democratic National Convention in Chicago. Gilbert was hooked by the group’s lawyer, a wild-haired New York lefty named William Kunstler. Using the trial less as an opportunity to defend his clients than as a platform for questioning the entire American system, Kunstler saved the defendants from serious prison time. Terry Gilbert’s direction was fixed.
Gilbert started law school in the fall of 1971. The Cleveland State University Marshall College of Law was not the scene of high-minded activist jurisprudence. It was an assembly line for anyone interested in practicing downtown at the courthouse—nearly every lawyer or judge walking the hallways was an alumnus. But Gilbert found that many of the students he matriculated with were hotwired with the same mission. “This wasn’t about career, it wasn’t about making money,” he would later say. “This was about struggle and the movement for social change.”
The young law students quickly bucked against the administration. They felt that the curriculum focused too much on property and business law, with no classes on equality and employment, the First Amendment, or poverty law. Gilbert, along with his fellow students, boycotted superfluous courses while turning out an alternative student newspaper, The Trade School News (the name was a dig at the law school’s commercial leanings). Similar convulsions were shaking up other law schools, and a cord of activist zeal connected like-minded students coast to coast. An informal network developed under the umbrella of liberal legal groups like the National Lawyers Guild and the ACLU. Through federal work-study programs, Gilbert and his fellow CSU students could volunteer for attorneys who were defending farmers against the federal government, or working with antiwar protestors facing criminal charges. Gilbert himself volunteered for the attorneys defending the prisoners involved in the bloody 1971 riots at Attica Correctional Facility in New York State. He also traveled west to work with Native American tribes fighting government incursion, and later played a role in the defense for the men arrested after the 1973 Wounded Knee shooting that left two FBI agents dead. When Gilbert graduated law school, he already had serious legal experience on the vanguard of civil rights litigation.
But it was hard paying bills with these cases. In 1974, Gilbert took an office with a crusty old communist lawyer in the Leder Building downtown. From there he began picking up cases at the Cuyahoga County Courthouse. There he found that the marble hallways were as grounded in the old school as CSU. It was a political scene—not the politics of the new left, but the backslap variety. Defense lawyers did little prep work for their cases; often they just winged it. Postconviction appeals were pretty much nonexistent. Prosecutors took the word of police officers without questioning the facts. Judges were buddy-buddy with the lawyers, who turned out their pockets to fund judicial campaigns. Most afternoons you could find attorneys and judges boozing in the padded leather circular booths of the Theatrical Grille, a favorite haunt of Cleveland’s mob elite, like Shondor Birns and Danny Greene.
Gilbert—with his long bushy hair, blue jeans, and perpetual pot cloud clinging to his person—was a natural outsider. But it went beyond dress code. His generation was bringing something new to the practice of American law. The toolbox had greatly expanded under the U.S. Supreme Court of Chief Justice Earl Warren. In fact, three cases tied to Cleveland police misconduct had helped change criminal procedure across the country. In 1961, the court heard a case involving a Cleveland woman whose house was illegally searched by police looking for evidence of a gambling operation; the Supreme Court ruled that no, evidence seized without a warrant could not be used in a criminal prosecution. Three years later, the justices heard a case involving Cleveland police pulling over a man without probable cause, but finding gambling slips on his person; again, the court ruled that no, you could not use evidence in a prosecution if it had been obtained illegally. In 1968, Cleveland police again were the topic when the Supreme Court discussed whether officers could randomly search suspects on the street; no, the court concluded, not unless there was “reasonable suspicion.”
These Supreme Court decisions opened new legal possibilities; attorneys like Gilbert could push to have cases tossed before trial. The decisions shifted the spotlight away from what a defendant might or might not have done and pointed it at the actions of police. The new breed of activist attorneys was also straddling the line between criminal law and civil rights actions, seeing the two areas not as separate specialties but inevitably linked. If police beat your client when he was arrested, why not file a civil rights lawsuit? If your client was sent to prison and the conditions were terrible, why not take the matter to federal court? Gilbert’s generation was the first to steer their practice o
n both courses.
In court, this meant Gilbert was operating from a different playbook. Courtroom vets often brushed off voir dire, or jury selection. “Just give me the first twelve damn people in the box,” he’d hear. But the younger generation of lawyers used voir dire to question possible jurors for bias, including tapping behavioral analysis to detect how a juror might lean. Similarly, Gilbert might try to have cases dismissed based on an unequal protection argument—going big picture and systemic even in the smallest cases.
Gilbert’s earliest years in Cleveland also dropped him in the middle of the tension between law enforcement and the black community. One of his first clients was Black Unity House, an East Side Black Power organization that also used government grants to run a drug treatment program. In 1973 Cleveland police raided the group’s headquarters, roughing up residents and confiscating guns the group had legally acquired for protection. Gilbert was tasked with getting the firearms back. He also filed a federal harassment lawsuit against the department on behalf of the group. He dropped the complaint after the U.S. Attorney’s Office publicly admitted they had been surveilling the group. For Gilbert, it was a victory—a bullying government admitting it was harassing citizen activists.
These were the thoughts and ambitions shuttling around the young lawyer’s head each night as he drove home to Cleveland Heights. The commute took him past the black neighborhoods where many of his clients lived. Eventually, he would turn up Fairhill Boulevard to get to the Heights, and as his car climbed the incline out of the city, Gilbert would often shoot a glance to his right. A corner store sat at Petrarca. That’s where the white guy was killed, Gilbert would think. He must have picked up the information from the news. He didn’t know anything else about the murder, or even if anyone had ever been arrested. But each night, the young lawyer drove by the store noting: a white guy had been killed right there.
* * *
That memory—the neighborhood corner store where the white man died—rushed back at Gilbert thirty-six years later as he listened to the voice on the other end of his office phone in early 2011.
As Kwame Ajamu unwrapped the details of his story, the attorney recognized it was the same killing. Shit, he thought, I remember that.
Kwame hadn’t just yanked Gilbert’s name randomly out of the phone book. He called him because of Sam Sheppard.
Sam Sheppard was prison-yard famous in the Ohio correctional system. Ghetto African American or white hilljack, young buck or grizzled lifer—everyone knew the case. The story had mesmerized America: the dashing young doctor accused of bludgeoning his beautiful wife to death in their bed in suburban Cleveland; Sheppard’s story of being knocked unconscious by an intruder before his wife’s death; the media circus and trial ending in conviction; his ten-year fight for innocence that inspired a hit TV show (The Fugitive) and ended in 1966 with an acquittal at retrial. But Sheppard’s legend in jail was even larger. Uncharacteristically for a white suburbanite doctor, Sheppard fought whomever he had to fight inside and didn’t take shit from anyone. He also provided medical care for prisoners because the institution’s own was often careless or terrible. And ultimately, Sheppard fought the law and won. So as Kwame began researching Sheppard’s case, he read up on a 1999 civil suit by the doctor’s son charging the state of Ohio with wrongful imprisonment. Although Sheppard’s son was ultimately unsuccessful, Kwame noted the name of the attorney representing America’s most famous wrongfully convicted man: Terry Gilbert.
Kwame’s hunch was spot-on. Gilbert’s legal career had naturally tracked with issues of innocence. In fact, the attorney had been there when DNA changed legal history.
In February 1988, a music store clerk named David Hartlaub was shot inside his van in Sandusky, Ohio. Police later learned the murder was a botched hit conducted by three Cleveland-area members of the Hell’s Angels motorcycle gang. The men—Steven Wayne Yee, Mark Verdi, and John Ray Bonds—had mistaken Hartlaub for a member of a rival bike crew, the Outlaws.
Prosecutors would later allege Bonds had hidden in Hartlaub’s car, waiting for the target to climb inside before pulling the trigger. One of the shots seemed to have ricocheted back, striking the shooter’s arm. His blood was left inside the vehicle. And although no physical evidence or witnesses linked the suspects to the crime, the FBI used a new technique to match the DNA from the blood spatter to Bonds.
At the time, the forensic technique behind DNA matching was still in its infancy. The science had been used in a few criminal cases, but its reliability was questionable. DNA matching had also never been used in a federal case before. The Ohio Hell’s Angels case became the legal test for whether this new groundbreaking forensic approach would be admissible in American courtrooms.
“It is scary because arguably the only concrete piece of evidence is DNA and [Bonds’] life and death in these cases depends on science,” Gilbert, an attorney for the defendants, told the Plain Dealer at the time.3 But he also recognized the wider legal consequences in play. An admissibility hearing on the FBI’s DNA evidence attracted attention from across the country. Gilbert’s courtroom hero, William Kunstler, was brought on for the defense, as well as two young New York City attorneys who had begun studying DNA forensics, Barry Scheck and Peter Neufeld. At the two-month hearing, the pair argued against the admissibility by critiquing the bureau’s procedure and the probability of their findings. The judged ruled for the state, swinging courtroom doors open for DNA forensics. The Hell’s Angels were convicted in 1991. But the new science also had application for the other side. A year later, Scheck and Neufeld started the Innocence Project at Cardozo School of Law, an effort to leverage DNA to help the wrongfully convicted.4
Gilbert’s early tour of duty in what would eventually be known as the Innocence Movement meant Gilbert was regularly snowed under with piles of jailhouse letters from men and women claiming they’d been wrongfully convicted. But in his first phone call with Kwame, something told the attorney this was different. A twelve-year-old boy was the only witness? Doesn’t sound right, he thought. Gilbert was also struck that Kwame wasn’t calling about his own case—he was free but pushing forward because of Rickey and Wiley. But Gilbert also realized Kwame was bringing absolutely nothing to the case—no new evidence, no new witnesses, no new information. The attorney was basically a one-man operation, he explained. He didn’t have the time or resources to dive into the situation.
But he had an idea.
Gilbert suggested that Kwame get a journalist interested in the story, do some digging, create public interest. The attorney said he had someone in mind; he had worked with a reporter before who could do the case justice. Not from the Plain Dealer or TV stations; they wouldn’t and couldn’t give a story like this the time it needed.
* * *
The Starbucks downtown was a busy hive. When Kwame thought reporter, he was expecting someone like you see on the news each night: granite anchor jaw, gray at the temples, a smoke-cured baritone with authoritative boom. His eyes roamed the morning-busy Starbucks, hoping to spot his man.
Kwame had called the writer right away at Gilbert’s suggestion. It wasn’t much of a conversation. The guy asked Kwame to meet him the same day at this coffee place. Before hanging up, he’d asked if Kwame had any documentation. Oh, did he. Kwame had his trial transcript, about a thousand pages recording the State of Ohio’s bid to take his then seventeen-year-old life. His files stacked in the flimsy cardboard box at his side, Kwame sat in the busy coffee shop and eyed the room, looking for the newsman. He was nervous. Here we go again. Spilling his story, his secret, and hoping some stranger believed.
That’s when I walked through the door.
8
THE MALES ARE FROM THE NEIGHBORHOOD
Cleveland, January 2011
“See,” Kwame told me, his hands resting calmly on the table, “this was a neighborhood thing. What happened was a robbery-homicide at the Fairmount Cut-Rate store. Myself, my brother, and our close family friend, Rickey Jackson,
were the three individuals subsequently charged and convicted.”
Quietly, in sentences stripped of emotion, Kwame relayed his story. The foot traffic inside the Starbucks we were sitting in was heavy, businessmen and -women shaking snow from overcoats, squeezing past our table. Kwame’s attention stayed stuck on his story; he only made eye contact with me at times to emphasize a point: Arthur Avenue. Ed Vernon. Death row. Twenty-eight years. Rickey. Wiley.
If he was feeling any disappointment—he’d probably expected a veteran news hard-ass, a trench-coated Peter Jennings—it didn’t show on his face. At this point I was used to starting interviews by parrying questions about whether I was an actual reporter or an intern. But little feeling at all broke through as Kwame spoke. If this man had been wrongfully convicted, his entire life stolen, he was playing against type. I assumed a man like this would be emptied of everything save rage and injury. Yet Kwame was cool and calm.
“If you read these transcripts,” he said, waving a finger at the cardboard box brimming with pages, “you’ll see that at one point the judge even says he doesn’t believe Edward. To my mind, how can a judge let that case go forward then?”
My mind built a case against Kwame. I was ignorant of the statistics, but wrongful convictions had to be rare; I reasoned that the basic chutes and ladders of the court system and appeal process were enough of a safety net to keep them from happening. Even when a bad conviction slipped through, I assumed the postconviction process would flag and overturn those cases within, what, a decade, tops—right? Innocent men wouldn’t be abandoned in prison for thirty-six years. But whatever argument I came up with to dispute the likelihood of Kwame’s tale was easily dismantled by something else. Kwame’s demeanor, his words, his face. Most people I interacted with for my job offered up their deepest feelings and memories in a confused gush, just happy to have an interested listener. As Kwame spoke, it was clear he had thought carefully about what he was saying. These were thoughts minted over a lifetime, not testimony he delivered lightly.
