Justice Delayed (Innocent Prisoners Project)

by Marti Green

  “There was no evidence of any psychological dysfunction. His lowest measure was in social introversion, which is not uncommon in those with lower IQs.”

  “Were you able to measure adaptive behavior skills?”

  “That was more difficult. The most common tests which measure adaptive skills usually rely on people close to the subject providing information about his behavior. In this case, Mr. Osgood’s only known relative, his mother, is deceased. However, I was able to review his school records, and I spoke to a few of his former teachers, the guards in his cell block, as well as his employer before he was incarcerated. From that, I was able to determine that, beginning at an early age, he was deficient in adaptive behavior. Based on all of those factors, I concluded that he is, and has been from childhood, intellectually disabled.”

  “Can you elaborate on which specific areas of adaptive behavior he was deficient?”

  “Yes. Adaptive behavior generally falls into three different areas: conceptual skills, social skills, and practical skills. From an early age, it was clear to his teachers that his language and literacy ability was deficient, as well as his ability to understand money concepts. With respect to social skills, he had no friends in school. He seemed very gullible and naive. In the practical-skills domain, his employer said he wasn’t capable of self-direction, nor did he seem able to manage money. There’s also some indication he wasn’t able to pick out his own clothes, because on occasion he showed up at work inappropriately dressed.”

  “Thank you. I have no further questions.”

  Luckman stood up and walked to the witness box. “Dr. Milgram, you say you spoke to the guards that oversaw the defendant’s cell. Did you speak to all of them, from every shift?”

  “No. I spoke to two. Paul Dingell and Harvey Bundt.”

  “Do you know how many guards come in contact with the defendant?”

  “Not exactly.”

  “Would it surprise you if I said there were twelve during the course of a week?”

  “No.”

  “So, isn’t it possible that if you spoke to the other guards, they would have a different perception of the defendant’s capabilities?”

  Milgram paused before answering, “It’s possible.” She looked over at Dani, then quickly added, “But not probable.”

  “But you can’t know for certain without speaking to them, right?”

  Dani called out, “Asked and answered.”

  “Move on, counselor,” the judge said.

  “Now, you said you looked at his school records.”

  “Yes.”

  “How long ago were those records made?”

  “The earliest ones go back forty years, the most recent about twenty-eight years.”

  “And his employer? How long has it been since he’s seen the defendant?”

  “He hasn’t seen him since his incarceration. So that would be twenty-two years.”

  “So just to be clear. You spoke to only two of twelve people who have current contact with the defendant, and the other people hadn’t seen him in decades, right?”

  “It’s unlikely that his adaptive skills would have improved while incarcerated.”

  “But you can’t be one hundred percent certain of that, can you?”

  “Of course not.”

  “I didn’t think so. I have no further questions.”

  Dani called Emily Halstein, the principal at Osgood’s high school, and Ted Bennett, the owner of the A&P that employed him, and each testified about his limitations. On cross-examination, Luckman had Halstein admit that Osgood was never held back to repeat a grade. He had Bennett admit that Osgood showed up for work every day and performed his chores satisfactorily. And, once again, he brought out that none of them had been in contact with him for more than two decades.

  When Dani rested, Luckman called, one after another, six guards that worked on death row at the Georgia Diagnostic and Classification Prison, or GDCP. One after another, they testified that Osgood had no problem following orders, dressing himself, feeding himself, or keeping his cell neat. One after another, they testified that during the limited hours death-row inmates were permitted in the prison yard, Osgood related to the other prisoners as well as anyone else. On cross-examination, Dani was able to elicit that Osgood had no choices to make when getting dressed—he wore only prison clothes provided to him by the institution. He had no choices to make at mealtime—eating only those foods brought to him on a tray, and eating them in his cell. As a death-row inmate, he had no jobs to perform at the prison, and therefore none of the guards could say whether he was capable of performing those jobs.

  After the last of the guards had testified, Luckman called his own expert—Dr. Phillip Melnick. He, too, was a forensic psychologist. He agreed with Milgram that Osgood’s intellectual functioning was significantly limited, and this had been present before the age of eighteen. However, in his professional opinion, Osgood did not have deficits in adaptive skills.

  When it was Dani’s turn to question him, she rose from her seat and slowly walked to the witness box. “Dr. Melnick, on what did you base your conclusion that Osgood was not deficient in adaptive behavior skills?”

  “First of all, the crime itself demonstrated that his adaptive skills were not limited. He planned the crime sufficiently to bring a ladder as well as a bat. In addition, he wiped the bat clean so it wouldn’t have his fingerprints on it. Someone who can think ahead like that has adaptive skills.”

  “Is that all?”

  “No. I interviewed several of the guards in the defendant’s cell block, and based upon their observations, I determined that he demonstrated social skills through his interactions with other inmates; he demonstrated personal-care skills through his dressing and eating and keeping his cell tidy; and, although he wasn’t afforded a work opportunity, he was able to follow the guards’ directions. To me, that showed he had enough skills that he cannot be labeled as deficient.”

  “Did you review his school records and the affidavit of his employer?”

  “I did, but I didn’t give those much weight. It was too long ago.”

  “Dr. Melnick, how many times have you testified for the prosecution?”

  “Oh, I don’t know. Quite a few times.”

  “More than a hundred?”

  “Possibly.”

  “And of those times, in how many did you find that the defendant was intellectually disabled?”

  “I couldn’t say.”

  Once again, Dani was grateful that she’d hired Meghan Milgram. Her knowledge of the region’s forensic psychologists was exhaustive, and she’d shared a wealth of information. Dani walked back to her desk, riffled through some papers, and picked up a packet. She handed one copy to Luckman, another to the judge, then returned to the witness. “In an article in the May 2015 issue of Forensic Psychology, it says you’ve never found in favor of the defendant in a Georgia criminal proceeding. Is that correct?”

  “You have to understand. Georgia has a very high standard for such a finding. Beyond a reasonable doubt.”

  “You haven’t answered my question. Have you ever testified that a defendant you examined in connection with a criminal case in Georgia was intellectually disabled?”

  Melnick cleared his throat. “No.”

  “I didn’t think so. I have no more questions.”

  There were no more witnesses. Each side summed up, and with that, the hearing was finished.

  “What’s going to happen now?” Osgood asked after they all stood while the judge exited the courtroom.

  “The judge will decide whether the state can execute you. She’ll probably let us know tomorrow or the next day.”

  Osgood’s lower lip trembled as he said, “But I didn’t hurt Kelly.”

  Dani heard a deep voice behind her say, “Time to go.”

  She looked around and saw one of the guards standing there, holding a set of handcuffs. She turned back to Osgood and gave him a quick hug. “I’ll let you know as
soon as I hear something.”

  As the guard led Osgood back to the courthouse’s holding cells, Dani walked out with a sinking feeling. In her gut, she knew there hadn’t been enough evidence to withstand the heavy burden of proof. Once the state’s expert found no intellectual disability, the outcome was predictable. Of course, she would appeal a ruling against Osgood, all the way up to the US Supreme Court. That would be necessary to slow down the clock, and hopefully stop his execution until they could find proof of his innocence. That is, if he were actually innocent.

  CHAPTER

  9

  At five past nine the next morning, Dani got a call on her cell phone letting her know that the decision was ready for her to pick up. She’d stayed overnight at a local hotel in Lawrenceville and had already showered and dressed when the call came in. Ten minutes later, she entered the court clerk’s office and was handed her copy of the ruling. Quickly, she scanned it for the bottom line. The defendant has a high burden to overcome in proving that he has an intellectual disability and is therefore ineligible for the death penalty, Judge Beiles wrote. In this instance, he has failed to prove that disability beyond a reasonable doubt.

  Dani wasn’t surprised. She’d known when she’d left the courthouse the day before that it would be a close call, and in Georgia, close calls went against the defendant. She returned to her hotel and made a beeline for its business office, which had computers available for use by the guests. She took a flash drive from her purse, inserted it into the computer, and opened up the draft appeal that she’d prepared before she’d left New York. She plugged in the decision of the Superior Court, printed out several copies, then got in her car and drove to the Supreme Court of Georgia, in Atlanta. With just four days until Osgood’s scheduled execution, her moving papers sought an emergency stay of the execution pending a hearing and ruling by the court on the appeal.

  Once that task was done, she drove back north to Stone Ridge. Normally, Tommy would be with her for witness interviews, or he’d handle them on his own, but she was already in Georgia, and time was short. Before she left, she wanted to speak to the parents of the two girls, Kelly and Lisa. Tommy had tracked down Lisa’s parents—still in the same house they’d lived in when the murder took place—but hadn’t had any success locating Kelly’s. Dani hoped Jenny Hicks, Susan Braden’s sister, would tell her where they were.

  She arrived at the home of Mrs. Hicks an hour later. A middle-aged woman dressed in jeans and a loose-fitting blouse answered the door. Her blonde hair was pulled back in a ponytail, and she held a rag in one hand.

  “Yes?”

  Dani had her business card ready and handed it to the woman. “I’m representing Jack Osgood. I wonder if I could speak to you for a few minutes?”

  Jenny’s eyes narrowed into a glare. “We’ve been waiting twenty-two years to watch him die. Why would I help someone who’s trying to stop that?”

  “Because I believe Jack is intellectually disabled. If he murdered your niece, he should stay in jail for the rest of his life. But the Supreme Court has recognized that someone who’s ‘slow’ may not have fully understood what he was doing, and so shouldn’t be put to death. Just like a child who kills shouldn’t be put to death, because his brain hasn’t developed enough to appreciate right from wrong.”

  Jenny just stood in the doorway, her arms folded.

  “Jack was your neighbor. Didn’t you notice he was different from others? Slower than children his age?”

  “Of course. But that doesn’t excuse murder.”

  “No, it doesn’t. Look—can’t I just come inside?”

  “I’m cleaning now. The house is a mess.”

  A man’s life hung in the balance, and this woman didn’t want another woman to see a messy house. Dani would have laughed at the absurdity, only nothing was funny about an execution. “Please.”

  Slowly, Jenny nodded, then opened the door wider. Dani stepped inside and followed Jenny into the kitchen. They both sat down at the round wooden table. Although the house had to be more than twenty-three years old, the kitchen looked like it had recently been redone. The countertops were all granite, and the wood cabinets showed no wear. Ceramic tile covered the floor of the large room.

  Dani dove right in. “How well did you know Jack and his mother?”

  “Pretty well. They lived next door. We didn’t socialize, but we’d chat when we’d see each other.”

  “Had you ever seen Jack do something violent?”

  Jenny shook her head.

  “Mean-spirited?”

  “Not really.”

  “How did he seem to you, then?”

  Jenny frowned. “Look, I really don’t want to talk about him.”

  “Please. I really need your help. Before this happened to Kelly and Lisa, did you think Jack was an aggressive person?”

  Jenny sighed, then looked away. When she turned back, she said, “Just the opposite. He was always very gentle with the kids on the block, even when they were bullying toward him.”

  “How so?”

  “You know how kids are. They’d call him a retard. Some even threw rocks at him at times. He’d just walk away when they did that.”

  “I want to ask you a hypothetical. If Lisa hadn’t identified Jack, would you have thought he was capable of murder?”

  “But Lisa did identify him. And they found his bat with Lisa’s blood on it.”

  “Assume that the bat can be explained. The bite on her hand, also.”

  Jenny wiped back a strand of hair that fell over her eyes. “What’s the point? I believe Jack killed my niece. I believe he knocked my daughter unconscious. And I believe he should die for that.”

  One hour later, Dani was back in her hotel room. She’d gotten nowhere with Jenny Hicks. Well, almost nowhere. She’d learned that Kelly’s parents had retired to some place in Florida, and Lisa had married and moved out of state. That was all Jenny would impart. Not their addresses, not their phone numbers, not even Lisa’s married name. If she wasn’t waiting to hear from the Supreme Court of Georgia on her petition for a stay of execution, she’d be back on a plane home. But it didn’t make sense to leave yet, when it was possible that, instead of a stay, the court would hear arguments in the next day or two.

  She made herself comfortable at the room’s desk, then took out her cell phone and called Tommy.

  “Any word from the court?” he asked when he got on the phone.

  “Nothing, but it’s still early. Hopefully by the end of the day, or at worst, tomorrow.”

  “Did you sit down with Mrs. Hicks yet?”

  “Just got back.”

  “Anything good from her?”

  “She believes Osgood is guilty, but only because of her daughter’s ID, not from what she knew of him.”

  “I suppose that’s good.”

  “We need to track down Kelly’s parents. They’re living somewhere in Florida. Maybe a retirement village. And it’s essential we find Lisa—see how strong her ID really was. If she even remembers now. She was only five when it happened.”

  “Okay. Did Mrs. Hicks tell you where she was living?”

  “No. And she’s married now. I couldn’t even get Lisa’s new name from her.”

  “I may still be able to find her. She’s young and probably uses social media.”

  “Good. Give me a call as soon as you find something.”

  When she hung up, Dani pulled from her briefcase folders containing files of other cases she was working on. They were comparatively simple matters, as all turned on newly discovered DNA evidence. Such cases represented the heart of what HIPP did. So many inmates were languishing in jail—even on death row—because they’d been convicted before DNA testing was available. Now, HIPP would seek out the evidence files routinely kept by police precincts and, when they contained items from which DNA could be found, arrange for its testing. When it excluded HIPP’s client as a perpetrator, Dani would file a motion with the court to free the wrongly convicted inmate. Of
ten, the prosecutor joined in the motion. Sometimes, the prosecutor fought it. She opened her laptop, then spent the next few hours working on motions while waiting for the phone to ring. The longer it remained silent, the more nervous she became. She wouldn’t go home until she heard from the court.

  She kept glancing at her watch every ten minutes. By five o’clock, she gave up waiting. Court clerks rarely stayed past closing time. She put aside her work and changed into running shorts, then headed to the hotel’s gym. She’d gotten into the routine of jogging after Ruth was born. Between the exercise and breast-feeding her baby, the pounds gained from her pregnancy plus the extra ten she’d put on over the years swiftly melted away, and for the first time in more than a decade, she was satisfied with her figure.

  The exercise room was empty. Two treadmills, one bike, and free weights—pretty sparse, even for a hotel gym. She grabbed a towel, then got on a treadmill, set it at 6.0, and began jogging. She’d discovered that she was able to think through some of her thorniest issues while running, and so for the next hour, she thought about her upcoming argument before the Supreme Court of Georgia. She wished she had more in her arsenal. Bennington was correct—it was awfully difficult to prove an intellectual disability beyond a reasonable doubt, especially when the inmate has been institutionalized for so many years. When she’d taken Osgood’s case, she’d hoped to first remove the shroud of death hanging over him. Then, she and Tommy would have time to thoroughly investigate the original crime and, hopefully, find proof of his innocence. But she now expected they wouldn’t have that luxury. Tommy was right. They needed to begin that search in earnest.

  CHAPTER

  10

  At 8:45 the next morning, Dani received a call from the court clerk’s office. She’d already showered and dressed and was availing herself of the hotel’s free continental breakfast when her phone rang.

  “A stay has been granted in State v. Osgood,” the clerk said. “And oral argument is scheduled for two weeks from today.”

  Dani breathed a sigh of relief. She asked the clerk to fax a copy to her office, then hung up and called Tommy. After she filled him in on the stay, she asked, “Any luck tracking down Kelly’s parents and Lisa?”