by Kyle Swenson
Ed’s affidavit both confirmed my conjectures and contained surprises. He drastically altered his account of May 19, 1975. Ed stated he actually had been on the school bus that day, not alone on the city bus, as he’d told the court. Along with the other children from the neighborhood, Ed heard the gunshots from the Cut-Rate robbery. “I couldn’t see anything from the bus,” the affidavit read. “When we got to the store, we saw the white man lying on the ground gasping for breath. This is the only thing I saw that day regarding the crime.”
A lot of joking and talk was spinning among the neighborhood kids at the scene. When the police asked if anyone knew anything, Ed volunteered. “I think I just wanted to be helpful,” he wrote in his affidavit. “You have to understand I was twelve years old at the time. I thought I was doing the right thing.” By then it was too late: the police thought they had a witness.
The boy believed he could easily back out. His plan was to go into the lineup, not identify anyone, and then leave. But once he failed to pick Rickey and Wiley out at the police station, Ed’s time with the police didn’t end. “At that point, a detective took me into this other room,” he wrote. “As far as I can remember, it was just the two of us in this room. He got really loud and angry and started yelling at me and calling me a liar. He was slamming his hands on the table, and pushing things around, calling me this and that. I was frightened and crying. You know it’s a scary thing for someone that young.” The affidavit continued: “The detective said that I was too young to go to jail, but he would arrest my parents for perjury because I was backing out. My mom was sick at that time, and that really scared me. I didn’t want my parents to get in trouble over this.
“When I was crying, the detective said ‘Don’t worry about it, we can fix this.’”
According to Ed, the detective then concocted a statement for the boy implicating Rickey and Wiley—and later Ronnie—in the murder. “I just kept meeting with police to go over my story,” he wrote. “Some parts I just made up.… The more we would talk about it, the more details they would hand me. Like they would bring up acid in a cup or a description of a green car, and I would take that information and add it into the story.”
* * *
In July 2014, Northeast Ohio’s own LeBron James announced in Sports Illustrated that he was leaving the Miami Heat to play for the Cleveland Cavaliers again—the prodigal son boomeranging back home.
The move was a headscratcher for the sports establishment—Cleveland instead of Miami?—but it made sense on the Lake Erie shoreline. This was the pop culture crescendo of momentum you could feel all around town in 2014, the gears shifting on the narrative. A new vitality had rushed into the city for the first time in decades, as if Cleveland was sliding into a different era, leaving behind civic decline and starting a new postindustrial phase.
The evidence was both concrete and subtle. I picked up on something all the way down in South Florida. It seemed that every day I saw a Facebook post about another friend or expat Clevelander packing up in Brooklyn or Boston or Chicago and heading home, for budget rents and empty lofts and house parties and cheap beer and the burgeoning food scene. They were settling not in the suburban ring but in Tremont, Ohio City, the Detroit Shoreway, Gordon Square—back to the city proper. On my trips home, the new bars and restaurants filling once-barren street corners were choked with tattooed arms and beards and Day-Glo hair and other social markers of the gentrifying wave. Once I almost gagged on my beer when a bartender told me she’d moved from San Diego to Cleveland in the middle of a winter where the thermostat rarely made it above twenty degrees. At times, the enthusiasm felt to me like the focus-grouped pap of a chamber of commerce ad. But the energy was definitely there.
More noticeably, the physical face of Cleveland was also changing. For all my life, downtown had been rough-and-tumble, a business district by day, dicey ghost town after hours. Now development money was being shoveled into the core, an architectural nip-and-tuck that dramatically altered the setting. The East Bank of the Flats, the abandoned bottomland running along the Cuyahoga River, was the site of a new $750 million mixed-use development at the river’s mouth. A $200 million project turned an empty Brutalist tower on East Ninth called the Ameritrust Building into a stack of fancy condos favored by pro athletes. Another $200 million was planned for a project between the baseball and basketball stadiums. Construction started on a new $271 million county-owned high-rise Hyatt to go with a new convention center. Monolithic nineteenth-century office buildings were being retrofitted into boutique hotels and retirement digs for empty-nesters. Even Public Square was gifted its own $32 million face-lift, a plan to magic-wand a homeless and drug pastureland into modern green space. The transformation pulled in the desired national gaze. The New York Times labeled Cleveland one of the “52 Places to Go in 2015.”1
Yet as much as city power brokers liked the image of a Rust Belt city rehabbed for the twenty-first century, Cleveland was still haunted by the unresolved legacies of the last fifty years, realities that threatened to undercut any rosy forecast for the region’s future. The signs were also in the headlines, below the cosmetic news of ribbon-cuttings. And Ed Vernon’s new revelations also reached out from the dark spots of the city’s history that investment capital and new breweries couldn’t fix.
The year 2014 started with Citigroup, one of the largest sources of the subprime loans that decimated the city’s housing stock, paying a seven-billion-dollar fine to the federal government; none of that money, however, landed in Cleveland, where the physical aftermath of the crisis still bombarded the eye.2 Housing woes leaked into other aspects of city life. A study found that since 2010, Cleveland had lost around sixty-seven hundred residents. Cleveland public schools’ enrollment had dropped by eight hundred students from the previous year; twenty-one million dollars was hacked from the district’s budget. Citywide, the poverty rate remained at 36.9 percent, second nationally to Detroit. Cleveland also took second to Motor City for children living in poverty, at 54 percent.3 The city’s infrastructure continued to be an outdated and poorly maintained punch line—in March a city fire truck was swallowed whole by a pothole on the East Side.4
And yet no facet of city life seemed mired in the past more than the Cleveland Division of Police. The years leading up to 2014 were filled with discrediting episodes for local law enforcement. In 2012, six Cleveland officers set off on a high-speed chase involving an unarmed black couple, Timothy Russell and Malissa Williams, who refused to pull over for a traffic stop. The frantic debacle ended in the parking lot of an elementary school, where police unloaded a total of 137 rounds into the car, killing both passengers. One officer, Michael Brelo, climbed onto the hood of his cruiser, pouring rounds into the couple’s car. Investigators later determined Brelo alone fired forty-nine shots.5 The officer was criminally charged for the shooting. The incident arrived in the middle of a fresh barrage of coverage on the division’s policies and practices. Much of the best work was done by two Plain Dealer reporters (and friends of mine), Henry J. Gomez and Gabriel Baird. Their reporting painstakingly wormed behind the blue wall, revealing systemic issues. The department’s internal review process nearly always justified uses of force—both deadly and non-deadly—even when witnesses and evidence contradicted the accounts of the officers involved. The rubberstamping included incidents involving Tasers: between 2005 and 2011, division brass had cleared all but five of the 969 uses of the shock weapon. Citizen complaints were also regularly ignored or abandoned in administrative limbo.
For all the complaints about his leadership, Mayor Frank Jackson was sharp to the historic distrust polluting the relationship between black Clevelanders and their police. Law enforcement misconduct was also an unattractive stain on the image of a resurgent modern city. At the mayor’s request, the Department of Justice’s Civil Rights Division was invited to investigate. But Michael McGrath, the police chief presiding over all this institutional dysfunction, was not removed from office but promoted to safe
ty director.
* * *
Nationally, the Innocence Movement was having a groundbreaking year. By the close of 2014, 125 men and women would be exonerated in twenty-seven states as well as Washington, D.C. The number, according to the National Registry of Exonerations, was a new annual record, representing a 37 percent increase over 2013, which saw ninety-one exonerations. Significantly, there was reason to believe the movement had finally established a stable beachhead within the legal system. Of the 125 exonerations, 104 were not DNA related, signaling courts might no longer be as hostile toward innocence cases missing a DNA component.6
Attorneys and experts tied the growing number of exonerations—DNA and non-DNA—to a shifting trend within the most powerful part of the criminal judicial system: the prosecutor’s office.
Of the two parties wielding state power in the criminal justice process, the police and prosecutors, experts have argued that the latter have proven to be more resistant to change than the former. A police force today, this line of argument runs, is fundamentally very different from its predecessors fifty years back. Some of this is modernization and developing tactics. But modern law enforcement has also been shaped by outside pressure. Departments have been forced to adapt to complaints, scandals, lawsuits, and the intrusion of the federal courts, not to mention aggressive press coverage. Critics may blast departments for being slow or unwilling to fully embrace reform, but it’s hard not to concede that the police officer asking for your license and registration today has been trained more thoroughly and is subject to more policies and paperwork than an officer fifty years ago (whether those policies are followed is a whole different issue).
This isn’t the case with the government’s arm inside a courtroom. Prosecutors’ offices tend to be much more insular and, as such, inoculated against change or reform. In terms of day-to-day operation, today’s prosecutor’s office is much the same as it was fifty years ago—fed by local law schools; staffed by career attorneys; and susceptible to local political winds and power struggles. The major shift in the culture has been the increase in pressure following the War on Drugs—more cases, and more incentive to win at all cost or else risk political repercussions. And when it comes to a postconviction claim of innocence, prosecutors have traditionally been unwilling to concede that their own actions may have put the wrong person in prison.
But this may be slowly changing. Beginning in the 2000s, prosecutors in different corners of the nation began establishing what came to be known as conviction integrity units (CIUs). The essential idea, as formulated by early practitioners at the Dallas County District Attorney’s Office in 2007, was to form a unit inside the prosecutor’s office to examine postconviction claims of innocence—kick the tires, basically, on earlier convictions won by the office. Over the next seven years, the Dallas unit would quarterback twenty-five exonerations while becoming the national model for proactive government response to wrongful conviction. By 2014, fifteen units were up and running in the U.S. Together, between 2003 and 2014, the CIUs combined pushed ninety exonerations, including forty-nine in 2014 alone.7 The increase was seen among members of the Innocence Movement as the tacit acknowledgment among prosecutors that not all convictions are perfect. And in 2014, Cleveland’s Cuyahoga County was among the offices boasting a unit.
The CIU in Cleveland was the result of regime change. In 2012, Tim McGinty, a lifelong presence in the downtown courthouse, stepped down from his position as a common pleas judge to campaign for and win the office of Cuyahoga County prosecutor. The tenure of the previous county prosecutor, Bill Mason, had been tainted by his close association with a number of local Democratic party officials brought down by the county corruption scandal, and his office’s failure to sniff out the corruption in the first place. McGinty was elected by promising an office soul-cleansing.
McGinty didn’t come without his own heavy baggage, and he was by no means an outsider. Throughout the 1980s, he cut his teeth as an assistant county prosecutor under longtime head John Corrigan. McGinty had a reputation for being fierce in the courtroom, outworking every other attorney there and doing whatever it took to win. He was no silent grinder. Short and squat, McGinty was propelled by a flamboyant zeal. He had no problem punching at the status quo as both an attorney and judge. In trials McGinty slashed and burned, presenting defendants as morally repugnant and splashing their defense attorneys with similar scorn. Once, while facing off against Ronnie Bridgeman’s former attorney Thomas Shaughnessy, the prosecutor told the judge the defense attorney stank of booze and should be given a sobriety test. Shaughnessy shot back that he’d take a sobriety test—if McGinty took an IQ test. While on the bench, McGinty blasted other judges for funneling cases to defense attorneys who funded their campaigns. He even sparked a feud with shock jock Howard Stern after a courtroom rant about the radio personality made it back to New York. Stern later called on-air for McGinty to lose his judicial reelection that year.8
The judge’s bantam-cock combativeness earned him enemies—and official censure. As a prosecutor, McGinty was cited eight times for prosecutorial misconduct, mostly for using excessive and prejudicial language in court. A few of the black marks on his record went further, including withholding details of a sweetheart deal cut with a snitch in a murder case, and possibly failing to hand over exculpatory information that might have helped the case of a suspected child rapist. But McGinty’s most critical courtroom error came in 1988. The case that landed on the then-prosecutor’s desk was particularly gruesome. A female patient dying of cancer had been robbed and raped at the Cleveland Clinic. From a photo lineup, the victim identified a former hospital employee named Anthony Michael Green. No additional evidence—physical or otherwise—tethered the suspect to the crime. McGinty made the best with what he had, battering Green before the jury as “a fraud, a phony, and a liar.” The defendant was found guilty and sentenced to ten to twenty-five years.
Green, however, maintained that he was not guilty, eventually contacting the Innocence Project in New York City about his case. In 2001, DNA testing led to his exoneration. McGinty had been wrong. “The worst thought ever is to think you put an innocent man in jail,” McGinty told my old paper the Cleveland Scene in 2006.9 “I feel so bad about that case.”
McGinty, forced to confront errors within the system—“Mistakes can happen,” he told Cleveland Magazine in December 2012.10 “We’ve always got to look out for them”—established a CIU early in his tenure at the Cuyahoga County Prosecutor’s Office. And although his intent appeared genuine, and his gesture was in line with the acceptance growing in similar offices around the country, there was still reason to be cautious. There is always reason to be cautious, experts will tell you. Although CIUs are popular, they can also be an empty gesture—ultimately ineffective window dressing. Of the fifteen CIUs open in 2014, only seven had produced exonerations. The other eight had yet to overturn convictions, including Cuyahoga County’s unit.
It soon became clear Rickey Jackson’s case was not going to be the local CIU’s first case. After months of delays and extensions, the prosecutor’s office filed a motion opposing the petition for postconviction relief in September 2014. “Vernon’s claims are not credible,” the filing stated. “His affidavit should not be accepted as true.” The state argued that Ed had already identified Rickey and the Bridgemans as the assailants before he was allegedly threatened by police. “Nothing has been provided to demonstrate Vernon’s affidavit sets forth sufficient facts to establish relief.”
The challenge teed up an evidentiary hearing over the validity of Rickey’s petition; OIP and the Cuyahoga County Prosecutor’s Office would face off before a judge, battling over whether Ed Vernon was telling the truth. The date was set for November 17. I arranged with the editors at Scene and my bosses in Miami to be in town for the hearing. I’d write a follow-up piece for the Cleveland paper. There was no way I could miss it.
* * *
Time was a slow-motion crawl in the months following t
he initial filing. I felt out of the action down in Florida, and every week I was ringing up Ohio for more news about the case. Brian Howe and I spoke regularly, and although he was extremely careful every time we talked, picking his words with tweezers to make sure he didn’t jeopardize the evidence he was hoping to present to a judge, I began to see the situation was legally quite precarious.
Ed’s words were not simply going to throw the cell doors open. Courts don’t like witness recantations. Case law in Ohio and beyond instructs judges to treat a witness’s reversal with the utmost suspicion. Why, the thinking runs, are you changing your story now? Is it because of guilt? You feel bad these people have been in prison so long? If you are saying you lied at trial, why should we believe you now? This attitude persists even with growing scientific evidence on the unreliability of eyewitness accounts. In Brandon L. Garrett’s study of the first 250 DNA exonerations, 190 involved eyewitnesses.11 In six of those cases, witnesses later came forward to recant, but judges in none of the six reversed the original conviction on the basis of the new testimony. A recantation on its own is not enough.
So Howe and the other attorneys at OIP had to couch Ed’s new version of events in a legal argument. When they filed Rickey’s case in March 2014, the document submitted to the court was a petition for postconviction relief. In Ohio, this legal channel is only open for up to 180 days after the conviction, unless new evidence turns up that wasn’t available at trial. Ed’s recantation was this new evidence, the cornerstone of the new petition. The legal strength of the petition did not just lie with the witness’s new account, but what the witness said in the new account: Ed now claimed he was pressured and threatened by police to testify against Rickey, Wiley, and Ronnie. Howe wrote his petition arguing that the police coercion was exculpatory evidence that should have been handed over to the defense at trial; even if prosecutors didn’t know the police had pressured the witness, the information should still have been disclosed. It wasn’t, however, meaning Rickey’s constitutional rights had been violated. This was the thrust of OIP’s argument.
