April 2013 will be
the 20th anniversary of the 11-day uprising at the Southern Ohio Correctional
Facility (SOCF) in Lucasville. This is
the first in a series of articles that will appear monthly in the Columbus Free Press and on the
website “lucasvilleamnesty.org” in preparation for a conference at Columbus
State Community College
on April 19-21, 2013,
devoted to “Re-Examining the Lucasville Uprising.”
Unlike
a case
where there is one homicide and one defendant, such as the Troy Davis
and Mumia
Abu Jamal cases, the Lucasville events involve ten homicides and
approximately fifty indictments. The reader may be helped by the
chronology
that appears together with this essay, compiled by Alice Lynd.
Appeals
of the five death-sentenced Lucasville defendants—Siddique Abdullah
Hasan
f.k.a. Carlos Sanders; Keith LaMar a.k.a. Bomani Shakur; Jason Robb;
George Skatzes; and James Were a.k.a. Namir Abdul Mateen--are in the
federal courts. As of this writing, the next event open to
the public may be an oral hearing in Cincinnati
before the Sixth Circuit Court of Appeals in the case of Keith LaMar.
Several other defendants--such as Darnell
Alexander, Cecil Allen, Thomas Blackmon, Derek Cannon, Greg Curry, Leroy
Elmore, Eric Girdy, Timothy Grinnell, Edward Julious, Kenneth Law, Rasheem
Mathews, Johnny Roper and Orson Wells--are serving long sentences. Because these men were not sentenced to death
they are no longer represented by counsel.
A number of
prisoners who were in L-block during the rebellion and became prosecution
witnesses have been released. These
informants include Robert Brookover, Stacey Gordon, Miles Hogan, Louis Jones,
Stephen Macko, Rodger Snodgrass, and Timothy Williams. Some of them are behind bars again for a
later offense.
We
do not forget Beverly Jo Taylor’s husband, the family of murdered officer
Robert Vallandingham, and the officers who were taken hostage but survived.
The Truth, the Whole Truth, and Nothing but the Truth
What
purpose is served by once again asking questions about the origins of the
disturbance, about the complicated story of the occupation of L-block, and
about the trials that followed?
I
have written a book about the Lucasville uprising, Lucasville: The Untold
Story of a Prison Uprising, published in 2004 by Temple University
Press. A second edition, with a Foreword
by Mumia Abu Jamal, was published by PM Press, Box
23912, Oakland, CA 94623,
in 2011. And much of the evidence on
which these essays will be based was pinpointed in a law review article
entitled “Napue Nightmares: Perjured Testimony in Trials Following the
1993 Lucasville, Ohio, Prison Uprising,” Capital University Law Review,
v. 36, no. 3 (Spring 2008).
So,
again, why revisit these events another time?
The
answer is simply that I, along with a growing number of persons who have taken
an interest in the Lucasville cases, am convinced that the truth about these
events remains untold in the courts as well as in the media. Not enough folks have read my book or law
review article. Putting these articles
on a website as well as in the Free Press introduces the story to people who get most
of their information from the internet.
I
should add that I have read, and do not indiscriminately discount, Officer
Larry Dotson’s narrative of his experience as a Lucasville hostage. For example, his account of how, blindfolded
as he was, after Ms. Unwin’s press conference on the morning of April 14 he
heard a “dramatic increase of verbalized tensions within L-corridor,”
corroborates what I learned from other sources.
Yet the fact
remains that the narrative presented by the prosecution in trial after trial of
Lucasville defendants rested on unreliable testimony of prisoner informants,
who received substantial benefits before and after their testimony, was
unsupported by objective evidence, yet continues to be credited by courts.
Contradictions
Where there was
objective evidence, as in the testimony of medical examiners, often it flatly
contradicted what prosecutors were telling the jurors. Here are examples:
George Skatzes
(pronounced “skates”) was found guilty of the murder of prisoner Earl Elder,
and sentenced to death, for allegedly directing Rodger Snodgrass to enter cell
L-6-60 where Elder was confined and stab him to death. Both Snodgrass and another prosecution
witness, Timothy Williams, testified that the weapon Snodgrass carried
resembled an ice pick and made a small, round hole. However, the medical examiner (Dr. Larry
Tate) said that the fatal blows were struck by an instrument with a wide blade;
a small piece of glass was found in the lethal wounds; and prisoner Eric Girdy
later came forward to say that he had helped to kill Elder using a “shank” made
from a piece of broken glass in one of the officers’ restrooms. Girdy also stated under oath that Skatzes was
not present and had nothing to do with Elder’s death. (Although Girdy was indicted and found guilty
of Elder’s murder, prosecutors have made no attempt to vacate this portion of
Skatzes’ sentence.)
Skatzes was also
sentenced to death for the murder of prisoner David Sommers. The prosecutor argued that a number of
prisoners including Skatzes had stabbed, strangled, and battered the victim. But the medical examiner (Dr. Leopold Buerger)
testified that Sommers had been killed by a single, massive blow to the head,
struck by a blunt instrument such as a baseball bat. The testimony of prosecution witness
Snodgrass, as to where Skatzes was and what he did when, was inconsistent with
the theory that Skatzes struck the fatal blow.
Moreover, the prosecution in a subsequent separate trial sought and
achieved the conviction of another prisoner, Aaron Jefferson, for striking the
same blow! Once more, Dr. Buerger
testified. State v. Jefferson, Tr.
at 267-68, 275, 283. Again he insisted that the cause of death was
one single massive blow to the head.
Asked whether the fatal injuries could have been the result of multiple
blows, the doctor pointed to a picture of the head and told the jury that all
the underlying skull fractures were the result of “just that one blow.” (And a bloody baseball bat found across the
corridor from the space in which Sommers was murdered was destroyed by order of
the chief Lucasville prosecutor, Mark Piepmeier, apparently without any effort
to test the bat for fingerprints or DNA evidence.)
Another
contradiction between objective medical testimony and prosecution theory
occurred in the trials of Jason Robb and Siddique Abdullah Hasan (formerly
Carlos Sanders) for the murder of Officer Vallandingham. The medical examiner who testified in both
trials was Dr. Patrick Fardal, chief forensic pathologist and deputy coroner
for Franklin County. In the Robb trial,
the prosecution offered informant testimony that the men who killed Officer
Vallandingham stood on an object like a metal weight bar and rocked back and
forth on his neck, crushing the trachea.
Dr. Fardal testified that there was “no injury to the voice box or the
trachea” and that “Mr. Vallandingham died solely and exclusively as a result of
ligature strangulation.” State v.
Robb, Tr. at 4433, 4442. Undaunted,
the prosecution presented the same lurid testimony about a weight bar in
Hasan’s trial a year later. Dr. Fardal
once again stated under oath that the cause of death was ligature
strangulation, that the larynx had not been crushed, and that he could say with
a reasonable degree of scientific certainty that there had been no rocking back
and forth on Officers Vallandingham’s neck by two men standing on a weight
bar. State v. Sanders, Tr. at
4166-67, 7174-76.
Who Killed Officer Vallandingham?
The
fundamental incoherence between, on the one hand, the narrative offered by
prosecutors to southern Ohio juries, and, on the other hand, a fair-minded
later investigation, is suggested by the fact that the State of Ohio still does
not know who killed Officer Vallandingham.
There is general agreement of all parties that
Officer Vallandingham was murdered by prisoners in pod L-6 on the morning of
April 15. Who were these murderers?
On January 18,
1996, prisoner Alvin Jones (a.k.a. Mosi Paki) was tried before an
administrative body known as a Rules Infraction Board for being one of two
killers. Jones was found guilty. Sergeant Howard Hudson, the chief
investigator of the Lucasville murders for the State, signed a summary of his
own witness testimony to the R.I.B. including the statement: “[Kenneth] Law took himself out of act
& replaced himself with inmate Darnell Alexander.” (Emphasis added.) Thus, as of 1996, the State identified
Officer Vallandingham’s hands-on killers as Alvin Jones and Kenneth Law.
On February 24,
2004, however, Chief Lucasville Prosecutor Mark Piepmeier and Assistant
Prosecutor William Breyer filed a “Motion to Dismiss Defendant’s Petition to
Vacate” in the Skatzes case wherein they outlined a theory that Carlos Sanders
had ordered James Were to supervise the killing of Officer Vallandingham, and
stated on page 26 of the brief that “Inmates Law and Allen were the other
two participants.” (Emphasis
added.) “Allen” was Cecil Allen, another
Lucasville defendant.
Thus, the State of
Ohio has identified four men--Alvin Jones, Kenneth Law, Cecil Allen, and (in
place of Law) Darnell Alexander--as possible candidates for the two men who
killed Officer Vallandingham.
In 2010,
documentary filmmaker Derrick Jones interviewed Daniel Hogan, who prosecuted
Robb and Skatzes and is now a state court judge. Hogan told Jones on tape: “I don’t know that we will ever know who
hands-on killed the corrections officer, Vallandingham.” Later Mr. Jones asked
former prosecutor Hogan: “When it comes
to Officer Vallandingham, who killed him?” and Mr. Hogan replied: “I don’t know. And I don’t think we’ll ever know.”
If Not Them, Then Who?
Unsure
who the actual killers of Vallandingham were, the State concentrated at trial
on naming those who it claimed ordered the killing. Conveniently for the prosecution, these were
alleged to be the leaders of the uprising who met periodically to determine the
occupation’s strategy, who acted as spokespersons for the prisoners in
rebellion, and who negotiated the peaceful surrender that took place on April
21: Sanders, Robb, Skatzes and
Were. By seeking the death penalty for
these supposed leaders, the State could kill four potential organizers of
future rebellions with one set of executions.
All
four men were said to have been present at a meeting of prisoner
representatives between 8 and 9 a.m. on the morning that Officer Vallandingham
was killed, Thursday, April 15. The critical
evidence was a so-called tunnel tape
that secretly recorded the conversation above the tunnel in pod L-2.
Tunnel Tape 61 was revised over a period of years in
preparation for trial. Prisoner
informants Anthony Lavelle and Rodger Snodgrass took part in the editing
process, supposedly identifying for members of the prosecution team the voices
of prisoners who were present at the meeting.
Nevertheless, the product was so problematic that, in the second trial
of James Were, Judge Fred Cartolano ordered the court’s own reporter to listen
to Tunnel Tape 61 over a weekend and report her corrected version. When the reporter testified on Monday that
what she heard was dramatically different from the version of Tunnel Tape 61
offered as an exhibit by the State, Judge Cartolano abruptly ordered that her
work product should be disregarded and the prosecution’s version received into
evidence.
Even so, Tunnel
Tape 61 does not report a decision to kill a hostage guard. The transcript of Tunnel Tape 61 that became
the official version, first at the Robb trial and then in later proceedings, is
available to the reader as Appendix One to the first and second editions of my
book, Lucasville. The transcript
shows that the prisoners who took part in the April 15 meeting certainly
discussed killing a guard. But,
recognizing the grave possible consequences of such action, the discussants
agreed to wait until a second meeting later that same day to make a final
decision.
Given the State’s
inability to determine who did the actual murder and the inconclusive content
of Tunnel Tape 61, a fair assessment of who ordered the killing of a hostage
officer requires more than a transcription of that tape. Such an assessment must examine what the
prisoner in question did and said, individually, at the meeting and afterwards.
For the moment,
let us consider only the alleged role of Hasan (Sanders), whom the State
portrayed as the mastermind and supreme leader of the whole insurrection.
Informant Rodger
Snodgrass testified at Hasan’s trial that Hasan was present at every meeting of
the prisoners in rebellion and played the role of “lead chair” at the morning
meeting on April 15. It was Hasan,
Snodgrass stated under oath, who called for a supposed vote on whether to kill
a guard. State v. Sanders, Tr. at
2651.
Yet the transcript
of Tunnel Tape 61 is unclear whether Hasan was even present at the
meeting. In James Were’s first trial,
Sergeant Howard Hudson, the prosecution’s lead investigator, was asked if he
recognized the voices on Tunnel Tape 61.
He said that he did, and named the men whose voices he recognized Sergeant Hudson was asked and answered: “Q.
[Did you hear] any voice that you have identified as belonging to Hasan,
the Muslim faction leader, the imam?
A. No, sir, I don’t believe he
appears.” State v. Were I, Tr. at
1037, see also 1046. The prosecution’s
own transcript of Tunnel Tape 61 shows
that Stanley Cummings, not Hasan, chaired the meeting on the morning of
April 15.
Perhaps
recognizing the problem they would face in connecting Hasan with the April
15 “vote [to kill] meeting,” prosecutors
presented to the Were and Sanders juries an imagined sequence of events in
which, later that morning in pod L-6, Hasan directed Were to direct the killers
to murder an officer.
This scenario
rested entirely on the testimony of a single prisoner, Kenneth Law, who was at
the time an informant. In a later essay
we shall follow the concoction of this falsehood step by step as it evolved and
was used at trial in 1995-1996, and then unraveled when Law recanted.
The Law of Prosecutorial Misconduct and What Is to Be Done?
Here
we shall pause in the recitation of official skullduggery and ask, as a
conclusion to this Essay 1, What is the law of prosecutorial misconduct? And if we satisfy ourselves that such
misconduct occurred in the Lucasville prosecutions, what can we do about it?
The knowing use of
false or perjured testimony constitutes a denial of due process if there is any
reasonable likelihood that the false testimony could have affected the judgment
of the jury. United Sates v. Lochmondy, 890 F.2d 817,
822 (6th Cir. 1989), citing United States v. Bagley, 473 U.S.
667 (1985). The same result obtains when
the prosecutors, although not soliciting false evidence, allow false evidence
to go uncorrected when it appears. Napue
v. Illinois, 360 U.S. 264, 269 (1959); Giglio v. United States, 405 U.S. 150, 153
(1972). And the principle that a State
may not knowingly use false evidence, including false testimony, to obtain a conviction,
continues to apply when the false testimony goes merely to the credibility of
the witness, because the jury’s “estimate of the truthfulness and reliability
of a given witness may well be determinative of guilt or innocence.” Napue, 360 U.S. at 269.
The burden in
establishing prosecutorial misconduct is on the defendant. It is not enough to show that two government
witnesses testified differently. In
order to prevail on a claim that his or her due process rights had been
violated by the use of perjured evidence, a defendant must show the statements
(a) were actually false; (b) were “material,” that is, sufficiently significant
to have potentially caused a different outcome; and (c) were known or should
have been known by the prosecution to be false.
United States v. O’Dell, 805 F.2d 637 (6th Cir. 1986),
cert. denied, 484 U.S. 859 (1987).
Underlying
these formulations there is an interesting history going back to the false
imprisonment of a radical labor organizer named Tom Mooney at the time of the
first World War. See the opening pages
of my article, “Napue Nightmares.”
But for us, confronting the 20th anniversary of the apparent miscarriage
of justice in the Lucasville trials, there is a more immediate question: What can we do about it?
The
answer that has come into focus for the Lucasville Five and for our support
group as a whole, is: amnesty That is
why our website is named “lucasvilleamnesty. org.”
The
dictionary defines “amnesty” as an English word derived from the Greek word for
“forgetting.” “Amnesty” differs from
“clemency” in that each is a form of pardon, but “amnesty” applies to a group,
not just to a single defendant. Thus Webster’s
Encyclopedic Unabridged Dictionary of the English Language defines
“amnesty” as “an act of forgiveness for
past offenses, especially to a class of persons as a whole.”
I
base my own support for a Lucasville amnesty on arguments brought to my
attention by two members of the Lucasville Five. One of them said to Alice and myself more
than fifteen years ago: “I don’t believe
in the criminal injustice system. We
have to reach the court of public opinion.”
He hoped that we could develop a documentary like The Thin Blue Line to
prove
the innocence of the prisoners sentenced to death. The other said only
a few weeks ago: “We must find a way to go on the offensive.”
Each
of the Lucasville prisoners condemned to death has a separate case and a
separate defense team. These individual
cases cannot readily be used to demonstrate patterns of prosecutorial
misconduct that affect all Lucasville defendants, like the blatant use of
uncorroborated snitch testimony.
Therefore, we need an out-of-court strategy.
There
are important precedents for an amnesty.
In 1975, Governor Hugh Carey of New York proclaimed an amnesty for both
prisoners and guards involved in the Attica events of 1971. In 2000, after the grounds for convicting
several defendants had been shown to be unreliable, Governor George Ryan of
Illinois declared a moratorium on exevcutions.
Later, he pardoned four prisoners and commuted the sentences of the
remaining prisoners on death row to life without the possibility of
parole. In 2011, Governor Pat Quinn
signed a bill abolishing the death penalty in Illinois. We will discuss these precedents in a later
essay in this series.
And at our
conference in April 2013, we must define our strategy for achieving the same
result in Ohio.
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