What happens when we convict the wrong guy?  

Generally, nothing happens unless an organized group of committed individuals is willing to spend decades tiltling at legal windmills.

If the alleged crime took place in Dallas County, legal and evidentiary irregularities  might be uncovered by a crusading District Attorney named Craig Watkins.   If, that is, you’ve got smoking-gun proof of innocence. 

But what happens when the evidence suggests we probably convicted the wrong guy?

That puts you into Albert Woodfox and Troy Davis territory.  Some legal experts (often at the federal level) say you deserve a new trial.  Other authorities (usually state officials) scream “states rights” and dig in their heels. 

There are no formal rules in this game.  The give-the-guy-his-day-in-court folks line up on one side and the if-he-can’t-prove-he’s innocent-he’s guilty people line up on the other side.  Both teams scream at the top of their lungs.  Reporters are drawn to the sound and fury but have a hard time making sense of the mess.  Ultimately, if you’re really lucky, the mess becomes the story.

Which brings us to the Angola Three tragicomedy.   In 1972, Albert Woodfoxand Herman Wallace were charged with murdering a prison guard named Brent Miller.  A troop of witnesses told a jury that Woodfox and Wallace did the deed. 

If the murder had taken place after 1976 the defendants would have been executed; instead, they were sentenced to spend the rest of their lives in prison.  In Angola prison, the most notorious lock-up in America.  In fact, Woodfox and Wallace have spent several decades in solitary confinement.

Then a case held together with duct tape started coming apart.  Witnesses started recanting or pointing the finger at other suspects.  One witness was paid for his testimony with regular deliveries of cigarettes and other luxuries.  Evidence had been kept out of the courtroom.

It is becoming clear that Wallace and Woodfox were prosecuted for political reasons.  In the late 1960s and early 1970s, southern politicians like George Wallace were beating the drum for law-and-order and Republicans like Richard Nixon were taking notes.  The Black Panthers came to life when young black leaders realized law enforcement had become a tool wielded against political radicals.  The paramilitary panthers declared themselves ready to defend themselves against what they considered an occupying force.  Incendiary speeches were the order of the day.  In Middle America (especially in the South) this “by any means necessary” rhetoric sounded subversive.  When Wallace and Nixon demanded law-and-order everybody knew they were talking about Black Panthers and war protestors.

Woodfox and Wallace organized a chapter of the Black Panthers smack dab in the middle of Angola Prison.   Prison rape and sexual slavery were actively encouraged at Angola as a means of controlling the prison population.  (I know this sounds unlikely, but its a matter of public record.)  As James Rucker of Color of Change makes clear, Woodfox and Wallace were targetted for prosecution because they organized their fellow prisoners to resist an ungodly regime.

Warden Burl Cain (a Louisiana icon) admits as much.  Albert Woodfoxdeserves to be in solitary confinement for life, Cain believes, even if he wasn’t responsible for Brent Miller’s death. “The thing about him is that he wants to demonstrate,” Cain explains.  “He wants to organize. He wants to be defiant . . . I still would not want him walking around my prison because he would organize the young new inmates and I’d have the blacks chasing after him and I’d have chaos and conflict.” 

Cain has no problem grinding the Constitution under his heel because he knows (or thinks he knows) the hearts and minds of Louisiana voters.  They support him for the same reason so many of them were drawn to the racist fascism of David Duke: he’s for law-and-order (which, interpreted, means putting uppity black folk in their place).

According to a report that played yesterday on NPR’s All Things Considered, Louisiana Attorney General Buddy Caldwell is singing in tight harmony with Warden Cain.  “They [federal judge James Brady who overturned Woodfox’s original conviction and the team of lawyers representing the defendant] don’t need to mess withme,” Caldwell said, “’cause I’m not playing . . . We’re . . . not going to let them get away with that kind of thing. [Woodfox] stays at Angola until further order from the court of appeal.”

Caldwell and company have appealed Judge Brady’s ruling to the conservative 5th Circuit Court of Appeals, a court famous for concluding that a sleeping lawyer provided adequate legal representation. 

In other words, we’re back to a pushing and screaming match in which the irresistable force called Judge James Brady slams into the unmovable force known as the 5th Circuit.

If Caldwell gets his way, no Louisiana jury will ever hear the long line of witnesses defense counsel has cobbled together.

“When you put evidence on like that you’re going to suffer from it,” he said. “Don’t put evidence like that on in front of me because I’m on to ’em. We just simply need to let the truth surface of what has gone on in this case, and that’s what I’m doing.”

 The “truth” Caldwell has in mind is the now-discredited testimony jurors have heard in past trials with no new facts or opinions stirred into the mix.

And what does Governor Bobby Jindal think of all this?  He thinks nothing and he says nothing.  Anything Mr. Jindal might say could be used in the next election to incriminate him.  If the Governor sides with Cain and Caldwell he reinforces the impression that Republicans believe rich white people have a corner on due process.  If he weighs in on the side of justice, he puts himself at the mercy of the David Duke constituency. 

So the governor says nothing.  Which brings the words of Dietrich Bonhoeffer to mind: “Silence in the face of evil is itself evil; God will not hold us guiltless. Not to speak is to speak. Not to act is to act.”

Bonhoeffer, you may remember, was killed by the Nazis for trying to subvert Hitler’s Reich.

In other words, we’ve got a fine mess on our hands.  Fortunately, this particular mess is becoming the story.

The Death Penalty Information Center reports that 37 people will be executed in the United States in 2008, down 12 percent from 42 in 2007 and a 30 percent drop from 2006.

Are we looking at a gradual erosion of support for the death penalty, or a meaningless statistical blip?

The AP report notes that Texas accounted for half of the executions in 2007 (18 of 37, or 48% of the national total).  That’s a big improvement from 2007 when Texas executed 26 people (62%) out of the 42 inmates executed nationally.

Unlike most reports on this year’s numbers, the AP article notes that nearly all of the execuations inAmerica this year took place in the South.  Only two non-Southern states, Oklahoma (2) and Ohio (2) performed executions this year.

Although Oklahoma was still a dumping ground for displaced native Americans at the end of the Civil War, it was largely populated by Southerners and is sometimes considered a southern state for statistical purposes.

But lets not quibble.  Of the 1137 executions in the United States since the re-institution of the death penalty in 1976, 935 occurred in southern states.  That’s 82%.  In recent years, the South has accounted for an even higher percentage of the executions in America.

Why are the execution numbers dropping?  Juries in several states (Texas among them) can now hand down a sentence of life without parole.  Many jurors will back away from the ultimate penalty if they know a dangerous killer will never be released from custody.

I would like to pose another question: Why are southerners so enamored of the death penalty?

Track lynching statistics  by year and by state between 1882 and 1962 (the beginning and end of the Jim Crow period ) and you will think you are looking at contemporary death penalty stats.  Lynching was much more prominent in the South than elsewhere in the United States.  Moreover, lynching was far more likely to be used against black victims in the South, especially in the first half of the 20th century.  For instance, of the 581 people lynched in this period in the state of Mississippi, 539 were black.

In the West, lynching was chiefly used as a form of vigilante frontier justice and most of the victims were white.

A similar trend emerges when we consider incarceration rates.   According to the Bureau of Justice Statistics, in 2005 the South had a regional incarceration rate of 519 prison inmates per 100,000 population (the numbers rise significantly when jail inmates are included).  In the same year, the Midwestern states had an incarceration rate of 386, the rate for the Western states was 378 and for the Northeast it was 314.

By international standards, even the Northeastern states are locking people in alarming numbers, but why is the rate of incarceration so much higher in the South?

When we consider that the cluster of states around Texas (with an incarceration rate of 691 per 100,000), the numbers skew in a highly punitive direction: Mississippi (660), Oklahoma (652),  and Louisiana (797).  In this clump of states, the incarceration rate hovers around 700, almost twice the national average.

Why?

The question becomes more critical when you consider that incarceration rates in Midwestern Red states are virtually the same as in Midwestern Blue states (a tad lower, in fact).

Religion, not conservative politics, is the key factor here.

There is an tragic correlation between high rates of church attendance and high rates of incarceration, but the folks who attend southern evangelical churches are singularly punitive.  In particular, a high concentration of Baptists goes hand-in-hand with multiple executions and an incarceration rate up in the nosebleed region.   In the cluster of Red states around Texas, Baptists comprise 37% of the population, compared to 21.8% in the Blue Southern states and around 8% nationally.  The average incarceration rate in the Blue South (states characterized by a low Baptist count and a vast in-migration of northerners) is 430, much lower than the regional average of 519 and only 61% as high as rates in Texas and the cluster of southern neighbor states cited above.

How do we account for Southern punitiveness, especially the extreme form on display in and around Texas?

I have spent eight years of my life studying theology at The Southern Baptist Theological Seminary in Louisville, Kentucky.  Five of those years (1989-1994) were devoted to an in-depth study of church history with a particular focus on Baptist history in the South.  As part of this work I traced the gradual evolution of Baptist attitudes and influence in the southern slave states.

Early on, Baptists were low-status commoners in southern states like Virginia where the Church of England was established.  This explains why Baptists like John Leland petitioned Thomas Jefferson for a separation of church and state after the Revolutionary War.

Initially, most Baptists in the South opposed slavery as something antithetical to biblical religion.  But as the South expanded westward after the Louisiana Purchase and slavery became the region’s peculiar and defining institution, Baptist attitudes began to change.  In 1845, when Baptists split North and South over the issue of slavery, the newly formed Southern Baptist Convention rapturously embraced the virtues of a godly slave society.

By the advent of the Civil War, Southern Baptists had moved from condoning slavery to proclaiming it’s moral superiority to all alternatives.  The South was God’s Zion largely because it practiced the biblically mandated instituion of slavery.

After the holocaust of civil war, the battered South re-organized around the Southern Baptist Convention.  Pastors who disagreed with the Jim Crow regime had to find another line of work.  I have read hundreds of books by Southern Baptists from the first half of the 20th century.  White supremacy was largely assumed, though the indelicate and worldly subjects of slavery and segregation were rarely addressed.   Woe to the pastor who addressed the elephant in the room from a progressive perspective.

As late as 1972, an employee of the Sunday School Board in Nashville was fired for publishing a picture of black and white children playing together.  Segregation died hard.

During the Civil Rights Movement of the late 1950s and early 60s, Southern Baptists were disproportionately represented within the KKK and the white citizens councils.  Official pronouncements from the Southern Baptist Convention had a moderate and faintly progressive sound, but the reality in the largely rural and small town Southern Baptist churches was quite different.

When Richard Nixon’s Southern Strategy sparked a mass shift of southern whites from the Democratic party to the Republicans, Southern Baptists led the way.

I am not suggesting that Baptists are inherently punitive.  Nor am I arguing that Baptists were the only southerners to embrace slavery and Jim Crow segregation while opposing the civil rights movement.  Baptists simply provide the most illuminating case study.

Religion in the slave states reflected the paranoia of the times.  Slaves had to be kept into submission, a fact that encouraged runaways.   Fear of insurrection was constant, particularly in regions where white freemen were outnumbered by black slaves.  During the Jim Crow period, lynching was used to enforce white supremacy.  This constant brutality left its mark on the brand of southern evangelical religion that provided a theological justification, and later a twisted spiritual celebration, of slavery.  The result, a perverse alchemy of Christ and Anti-Christ.

How do you preach “whosoever will may come,” in the heart of the Jim Crow South?  Very carefully.  It is hard to preach grace to people you regard as subhuman.

A turn-or-burn religion based on the crude juxtaposition of heavenly bliss and hellish torment fit the spiritual needs of the slave states.  It was essential that religion be utterly divorced from politics and social p0licy.  The profane elephant in the room had to be ignored at all costs.

The hyper-spirituality of southern religion has little to do with evangelical theology.  In the North, as in England, evangelicals were frequently at the heart of the progressive movement.   But in the slave states, the church was the piper and the wealthy planter class called the tune.  These brutal facts of history gave southern evangelicalism a disembodied, anti-incarnational, and schizophrenic character that persists to this day.

Oddly, the punitive cast of southern evangelicalism is more apparent in the courthouse than in the churchhouse.  Southern attitudes are changing.  The crude racial bigotry of the Jim Crow period is dying fast (the proliferation of noose hangings and hate groups notwithstanding).  But the paranoia and punitiveness of the Old South lives on in the juryroom.  Fear of the other, a stark line of separation between the saved and the damned, and a deep-seated fear of the angry black man translate into support for the death penalty and mass incarceration.

I am not advocating that southerners turn their backs on evangelical religion.  Quite to the contrary; the South needs a revival of a radically biblical evangelicalism freed from the shackles of cultural captivity.

Support for slavery and segregation meant the abandonment of biblical grace and justice.   That’s the problem.

Once the disease is diagnosed, the cure is obvious.  The South will find its salvation in a back-to-the-Bible revival of religion.

The Troy Davis case indicates just how subjective the legal system really is.  The federal 11thCourt of Appeals deals with cases in Florida, Alabama and Georgia.  A panel of three judges selected from this court considered the Davis case yesterday.  Rosemary Burkett, a Clinton appointee with both Arab and Hispanic ethnic roots, would like to see a full airing of the facts surrounding the Davis case.  According to the Atlanta Journal-Constitution, Burkett finds it troubling that seven of the nine original witnesses have changed their stories and that one of the two witnesses sticking to his story has allegedly admitted to killing Savannah officer Mark Allen MacPhail.

Davis became the prime suspect in the case when Sylvester Coles told the Savannah police department that Troy was the killer.  According to media accounts, Judge Burkett is wondering why Coles was never considered as a suspect.  It’s bad enough that we may be on the verge of killing an innocent man, she told the court during yesterday’s hearing, but “it’s also possible the real guilty person who shot Officer MacPhail is not being prosecuted.” 

Why, Barkett asked yesterday, were none of the witnesses in the case shown a photo array including a picture of Coles?  “It seems police were so anxious to get somebody that they didn’t pursue Coles,” Barkett observed.

Judge Stanley Marcus, also a Clinton appointee, was less outspoken than Judge Barkett, but the testimony he was hearing bothered him as well.  Since the 1991 trial, three witnesses had signed statements saying that Sylvester Coles admitted to the crime over a beer or between tokes.

True, a single witness, Stephen Sanders, is sticking by his story.  At the 1991 trial, Sanders said, “You don’t forget someone who stands over and shoots someone.” 

However, as defense attorney Tom Dunn reminded the court yesterday, Sanders originally told police he wouldn’t be able to identify the shooter.  Memory usually gets fuzzier over time.

According to the Atlanta Progressive News, the hearing revolved around two questions: “First, given the evidence available Tuesday, is it likely a jury would not convict Davis? Second, did Davis exercise due diligence in providing new evidence?”

 Susan Boleyn, Senior Assistant Attorney General in the State of Georgia, argued the status quo position.  Troy Davis has presented no hard evidence of actual innocence, she told the judges.  Davis’s claims have been denied relief by the state courts, the 11th Circuit, the U.S. Supreme Court and the state Board of Pardons and Paroles, she reminded the court.  At some point you no longer get another bite of the same apple.

But when do you toss the apple core into the trash, and who decides?

Asked why three witnesses are primed and willing to testify that Coles privately confessed to murdering officer MacPhail, Boleyn rattled off a few theories.  Colesmight have been drunk or high on marijuana; or perhaps Coles was trying to impress his listeners with a bold lie. 

Boleyn reminded the judges that the reliability of recanting witnesses has traditionally been held in low repute.  The fact that a witness admits that they once lied under oath (for whatever the reason) should be enough to undermine their credibility.

Taken together, Boleyn’s arguments boil down to this: ya’ll can’t prove your man is clean, so we get to kill him.

Boleyn was also critical of defense counsel for not bringing their concerns forward in a more timely manner.  This raises an interesting question: what happens when defense attorneys don’t file their briefs on time?  Should the defendant suffer for the mistakes of the people charged with his defense?

Well, yes, if precedent is anything to go by, he should.

The smooth running of the judicial machinery trumps all other concerns.  The law requires finality.  You can’t have witnesses changing their minds willy nilly, especially in a capital case.  Therefore, it is generally agreed that witness testimony should be taken at face value and that once a witness speaks the words are set in stone.  Recantations undermine the finality prised by the legal system.

Unless, that is, a case achieves the kind of attention the Troy Davis case is currently receiving.  When both sides are free to make their arguments and the media is paying attention (sort of), the immovable object (“we can’t execute a man who might be innocent”) runs up against the irresistible force of legal precedent (“a jury found him guilty and a string of courts have backed up their verdict, so he’s a dead man”).

Generally, a tie goes to the state.  Not this time.

Does Susan Boleyn and her buddies at the Georgia Attorney General’s Office know for sure that Sylvester Coles is innocent, Troy Davis is guilty, and the seven recanting witnesses are all lying through their teeth?  Of course not.  How could they possibly know these things?  They don’t care because they don’t have to.  Accused murderers are run through a complex game of musical chairs and when the music stops and they haven’t found a seat, they die.  We don’t have to know for sure that you’re guilty, nor do we have to care.  Justice is defined as whatever the legal system decides to do.  If a case proceeds through the proper channels justice has been served.

If Susan Boleyn worried too much about these things she wouldn’t be able to sleep at night.  Cut the poor woman some slack; she’s just doing her job.  The Senior Assistant’s role in the Troy Davis melodrama is to argue for the state of Georgia no matter how nonsensical her arguments may sound to the uninitiated.  Hers is not to reason why, nor can she allow her private judgment to intrude into the matter.  The decision was made by her bureaucratic superiors and she is paid to spout their arguments in public even when it makes her look like an escapee from a Monty Python sketch. 

Generally it doesn’t matter because no one from the outside world is paying attention. 

If folks had given up on Troy Davis he would be long dead.  But because a shining slivver of humanity is paying attention and a handful of reporters are still pressing pen to paper Troy Davis clings to life.

It’s got nothing to do with fairness or even common sense; it’s all about finality and bureaucratic efficiency.

Radley Balko, an editor with the libertarian magazine Reason, knows the rules of the drug war.   As the Larry Bazile case in Bunkie Louisiana demonstrates, corrupt police officers often sell fraudulent stories to local magistrates in exchange for search and arrest warrants on people they suspect of selling drugs.  The theory is that a noble end justifies a bogus means.  Balko’s treatment of the Colomb case in southern Louisiana features another example of this dark art. 

Balko doesn’t always appreciate the antics of Barry Cooper, the ex-cop-turned-anti-drug-warrior.  Cooper often comes off as a smart-ass self-promoter.  But a recent stunt in Odessa, Texas  won the journalist’s grudging admiration.  This is one way to make police officers play fair.

Across America, African Americans are still trying to fathom the unfathomable: a black man is president of the United States.   At the celebration I attended in Fort Worth on election night, the crowd was majority-minority and the emotion was palpable.  A new species of patriotism was in the air.

Of course, almost half of America (and a majority of white folks) didn’t vote for the black candidate.  Most McCain supporters are willing to give Obama a reasonable chance.  In fact, Republican reaction to the work of the Democratic transition team has generally been positive.  In a crisis, fear trumps ideology. 

But there are places where Obama’s election is deeply resented.  How many white voters, for instance, supported the Democratic candidate in Jonesboro, Arkansas?  I’m not sure.  But the report below raises a troubling question: did race and ideology influence the behavior of white police officers responding to an exuberant election-night celebration by black college students?   Did a display of black pride hook a crude manifestation of white power?

David Koon’s “A Night from hell” appears in the most recent edition of the Arkansas Times, a left-of-center publication that occupies a similar place in the journalistic landscape as the Texas Observer (the paper that, at the invitation of Friends of Justice. broke the Tulia story eight years ago). 

Much depends on the decisions the prosecutor handling these cases makes in the next few days.  Will the defendants be charged as felons?  Will this  story devolve into a swearing match between white police officers who say they were assaulted by an angry mob and black students insisting they were harassed by belligerent police officers? 

If so, how do we adjudicate the conflict? 

All we know at present appears below, but I suspect we haven’t heard the last of this story

‘A night from hell’

Students: Police overly aggressive during Jonesboro ‘riot.’
David Koon
Updated: 12/4/2008

I declined to be interviewed for this article, but I don’t mind telling you what I told Sherrell Stewart when she called me.  

Reed Walters doesn’t want to take any of the Jena cases to trial.  He doesn’t want to risk the media flare-up that a trial would inevitably bring, and he doesn’t want to give defense attorneys a chance to tell the story from the defendants’ perspective. 

On the other hand, reducing the charges to something that would be acceptable to the defendants would smack of defeat.

So Walters does nothing, the media lets this sleeping dog lie, and the Jena 5 do their best to live beneath a cloud of doubt.

Complicating everything is the fact that Mr. Walters has appealed the recusal of Judge JP Mauffray and the appeals court is in no rush to rule on the issue.

Two Years Later, Jena Six Youths Still Await Day in Court

Friday, December 05, 2008, 2:29 pm
By: Denise Stewart, BlackAmericaWeb.com

Two years after a fight with a white schoolmate landed six black youths in Jena, Louisiana in jail, most of the young men have not had their day in court, and chances are that day will not happen this year, lawyers say.

Only one of the youths known as the Jena Six, Mychal Bell, has been sentenced and is currently in the custody of the Louisiana juvenile system. Others involved in the Dec. 4, 2006 fight in the small town are moving on with their lives, but haunted by a cloud of prosecution.

Earlier this year, attorneys for the remaining five youths were successful in getting Judge J.P. Mauffrey removed from the case. But LaSalle Parish District Attorney Reed Walters appealed that decision, attorneys said, and that matter is yet to be settled by a Louisiana appellate court.

In Jena, and in other parts of the country, there is little talk of the case that, in September 2007, stirred one the largest civil rights protests in recent history. Five of the six students charged, including Bell, originally faced attempted murder charges. Bell was convicted in adult court and could have received 15 years in prison, but the conviction was thrown out by an appellate court that said he should have been tried as a juvenile.

“A lot of people are no longer concerned about the Jena Six,” says Tony Brown, a radio talk show host in Alexandria, La. “A majority of the people on the legal side and on the public side want this thing to go away,” Brown told BlackAmericaweb.com. “It’s been a public relations nightmare for the state.”

In addition to the huge march and rally in 2007, where tens of thousands bused in to Jena to protest, the House Judiciary Committee last year convened a hearing on the case, and it captured headlines around the world.

Through his show, Brown helped turn the spotlight on the plight of Bell, Carwin Jones, Jesse Ray Beard, Theo Shaw, Bryant Purvis and Robert Bailey Jr. The youths were arrested and charged with felonies following a fight with a classmate, Justin Barker. The prosecutor in the case said the fight was a vicious assault that sent Barker to the hospital. That fight followed several other incidents in and around Jena High School, including the hanging of a noose. No charges were brought against white youths who hung the noose.

Last December, Bell agreed to a plea bargain. He’s been attending Carroll High School in Monroe, La., and will graduate this month, said Louis Scott, Bell’s attorney.

“He has better than a 3.0 average, and he’s looking to go the college and play football,” Scott told BlackAmericaweb.com.

Still there are hurdles. Because Bell still is technically in the custody of the juvenile system, lawyers may have to get approval for him to attend a college in a different area, Scott said.

When he was at Jena High School, Bell was a standout on the football team and had been considered a prospect for college. He had petitioned the Louisiana State High School Athletic Association to play this fall. That request was denied, so his chances of playing one more season to try to impress college recruiters were wiped out.

“Even though he wasn’t on the team at Carroll High School, he helped with team, sort of as an assistant,” Scott said. “The team still gave him an award.”

Two of the other Jena Six youths were able to play football this year.

Bailey played at Shaw High School in Georgia, and Beard played ball at a prep school in the Northeast, their attorneys said.

“We’re proud of the way Robert has handled himself. Either moving to Georgia has changed him or living in Jena didn’t help him,” his attorney Jim Boren told BlackAmericaweb.com.
Bailey is getting offers from some small colleges to play ball, and he’s kept his grades up, Boren said.

Beard, now 17, is in his junior year of high school. “His goal is to finish high school and go on and play college ball,” his attorney David Utter told BlackAmericaweb.com.

Efforts to reach Purvis, Jones, Shaw or their attorneys were unsuccessful.

Boren, the attorney for Bailey, said the case is complicated by the situation with the judge and the district attorney.

First, a decision must be made on who will hear the case. Also, a decision must be made on another request lawyers have made to have the district attorney removed from the case, Boren said.

Lawyers for the defendants have argued that their clients can not get a fair trial in LaSalle Parish with Walters and Mauffrey because of the established network between the judge and the district attorney’s office.

The case has moved along at glacier speed, Boren said, “but it does me no good to be bothered over the speed of the judicial process. It’s the best system we have at this time.”

Reed Walters, the district attorney is out of the office this week.

“Because of the number of motions that have been filed, the number of lawyers involved and the fact that LaSalle Parish has only one court, it has been very difficult to schedule the case for trial,” his spokesman, Bill Furlow, told BlackAmericaweb.com in an email. “The district attorney is eager to move forward as rapidly as is possible.”

Brown said he too looks forward to the day when the youths’ cases are settled. He predicts that the remaining five will not have to go to court.

“The D.A. is just prolonging the inevitable. I don’t think any of the remaining cases will ever see a courtroom,” Brown said. “Change is coming to America. I’m just waiting on them to get the memo in Jena.”

Eight days after his June trial, Alvin Clay and his attorneys filed a motion for a new trial.  On Monday, November 24th, a hearing on that motion was held in the federal courthouse in Little Rock.   Judge Leon Holmes was presented with a massive stack of evidence backing up claims made in this blog that Donny McCuien, the only witness tying Clay to the alleged conspiracy, repeatedly perjured himself on the witness stand.

The perjury was so blatant and so obvious that federal prosecutors either knew or should have known that their star witness was mangling the truth.  Unless a prosecutor is unaware that perjury is being perpetrated, it is illegal to let a witness feed lies to a jury. 

Prior to trial, the government sifted through hundreds of real estate deals handled by Clay Real Estate.  Only the cases associated with Ray Nealy and Donny McCuien were even remotely tainted.  The government also knew that dozens of Nealy-McCuien cases not involving Clay were clearly fraudulent.  Finally, the government knew, or should have known, that their star witness, Donny McCuien, had been doing real estate deals involving rehab work prior to meeting Ray Nealy and long after Nealy, McCuien and Clay were indicted. 

And yet, when McCuien testified that he had never performed rehab work on a single piece property, that he knew nothing about doing rehab work, that he never owned the tools of the rehab trade, and that, apart from one owner-financed transaction, he had never owned a single piece of property, Assistant US Attorney Steven Snyder sat grim-faced and silent.

In fact, AUSA Snyder consistently presented Donny McCuien to the jury as a hapless burger flipper.

The argument went something like this: Alvin Clay had to have known that Donny McCuien wasn’t doing rehab work on the properties in question.  Only a fool could believe that a hapless burger flipper like McCuien was capable of buying and selling properties and doing rehab work.  Alvin Clay is not a fool.   Ergo, Clay was in on the scam.

The records Alvin Clay and his attorneys presented in federal court on November 24 demonstrate beyond a reasonable doubt that McCuien bought and sold dozens of properties, many of which were rehabbed before being flipped.  He did this in association with Ray Nealy, he did it before he met Nealy, and he continued to do it after his relationship with Nealy was terminated.

In fact, McCuien was buying and selling properties at the very time he took the stand in 2008 and conned an all-white jury into believing he was an ignorant, unlettered burger flipper who couldn’t flip a property if his life depended on it.

If jurors had realized that Donny McCuien had been selling rehabbed homes, legitimately and fraudulently, for over a decade, would they have found it so hard to believe that Alvin Clay, like scores of other people, had sincerely believed that McCuien was doing the rehab work he promised to do.

True, Mr. Clay and a number of out-of-state lending institutions should have done more to convince themselves that McCuien and Nealy were acting in good faith.  But neither Clay nor the bankers involved in these deals have been accused of negligence . . . at least not by the federal government.  This morning, NYT columnist Thomas Friedman expressed his outrage at “some of our country’s best-paid bankers” who were “overrated dopes who had no idea what they were selling, or greedy cynics who did know and turned a blind eye. But it wasn’t only the bankers. This financial meltdown involved a broad national breakdown in personal responsibility, government regulation and financial ethics.”

Ultimately, “this financial meltdown” created Ray Nealy and Donny McCuin and seduced the federal government into one of the most ill-considered prosecutions on record.  With so many knaves and fools to choose from, how did the federal government end up with Alvin Clay?

A second hearing is scheduled for the Little Rock courtroom of federal Judge Leon Holmes on January 6, 2009.  How will Judge Holmes respond to these startling revelations?  Will he grant Alvin Clay a new trial?  Will he order the government to dismiss the charges against Clay?  Will he discipline the government for suborning perjury?

We can only wait and watch.  Judge Holmes appears to be a sincere person of faith eager to uphold the integrity of the judiciary.  During Clay’s trial, Leon Holmes acquitted himself responsibly.  Whether he will acquit Alvin Clay remains to be seen. 

So why didn’t Alvin Clay bring these facts to the intention of the jury at the time of trial. 

Clay repeatedly asked George Hairston, his lead attorney, to research McCuien’s professional history.  To a limited extent, the avuncular attorney complied.  Once he had enough evidence to show that McCuien was perjuring himself, however, Hairston lost interest in McCuien’s past.  If he could prove that McCuien had done rehab work on a couple of properties, the Tennessee lawyer reasoned, the jury would see through McCuien’s pretense.

Unfortunately, it didn’t work that way.  The all-white jury assumed that the government wouldn’t be prosecuting Clay if his hands were clean.  In the absence of overwhelming proof of perjury, the jury would side with the government.

George Hairston was on the stand at Monday’s hearing, complaining about my blogging and suggesting that jurors (and possibly Judge Holmes himself) had been prejudiced against his client by my incendiary prose and by street demonstrations held in the course of the trial. 

Federal judges don’t follow the dictates of bloggers.  More importantly, Holmes was in the room when Hairston presented singularly inept closing arguments at the conclusion of a two-week trial.  Holmes knows effective representation when he sees it, and Alvin Clay didn’t receive it.

I hestitate to criticize Mr. Hairston.  He is a nice guy.  The briefs he composed prior to trial were professional and well presented.  Back in the day, Hairston was undoubtedly a fine attorney, and I am sure he has worked wonders for his clients on many occasions.  But every fighter needs to know when its time to hang up the gloves, and George Hairston stayed in the ring one fight too many.

Thus far, I have received over a dozen faxes from Alvin Clay laden with gratuitous evidence of Donny McCuien’s criminal and professional past.  More faxes will follow.  But the evidence at bar is now quite sufficient to prove, to the whitest of all-white juries, that the United States has no case against Alvin Clay.

Below, you will find excerpts from the official press release followed by the salient portions of Judge Brady’s ruling.

“Angola 3” Member to Be Released On Bail After 37 Years

Conviction Overturned, Judge Rules Albert Woodfox Must be Free During Appeals or Re-trial

Lawyers: Ruling Brings Hope for Remaining Prisoner, Also Spent 36 Years in Solitary for Guard’s Murder

Albert Woodfox, who has spent 37 years in prison at Angola Penitentiary, must be released on bail, according to a ruling issued today by United States District Judge James Brady. On September 25th, Judge Brady overturned Woodfox’s conviction for the 1972 murder of prison guard Brent Miller. Though the State has announced its intention to appeal that decision, until such an appeal is successful, according to today’s ruling, there is no conviction on which to hold Woodfox.

Herman Wallace, who was also convicted in the murder, remains in prison at Angola. He has an appeal pending with the Supreme Court of Louisiana, which is similar in content to Woodfox’s successful appeal. The two men were wrongly convicted based largely on the testimony of a fellow prisoner, Hezekiah Brown, a serial rapist who was promised and received a pardon in exchange for his testimony against them. Brown was the sole professed eyewitness to the murder, and none of the physical evidence put Herman or Albert at the crime scene. (more…)

Five defendants accused of channeling at least $12 million to Hamas after the organization went on America’s list of terrorist groups in 1995 have been convicted by a federal jury in Dallas on all 108 counts named in the indictment.  The Dallas Morning News provides a good summary of the history of the federal prosecution, the key elements of the case, reactions from a crowd of 150 well-wishers, and dozens of conflicting comments from interested readers.  Bob Ray Sanders, a columnist with the Fort Worth Star-Telegram, has interviewed Greg Westfall, one of the attorneys representing the Holy Land defendants.  Sanders’ conclusion is reflected in his column’s title: “Holy Land Five convictions mark sad day for American justice system.”

I have been following the “Holy land Foundation for Relief and Development” case for several weeks because it raises fundamental questions about the American system of justice.  I don’t know enough about the guilt-inncence issues to comment intelligently, but it appears the government has made a strong case that the Holy Land Foundation channeled money to Hamas in the full knowledge that the organization had been declared a terrorist organization by the United States government.

Unresolved is the question of intent. 

All five defendants grew up in the West Bank and were well acquainted with the crushing poverty and squalid living conditions for which Palestine refugee camps are infamous. 

In addition, these men were intimately related to a variety of Hamas-friendly clerics and aid workers in Palestine.  The Holyland Foundation was clearly pro-Palestinian and anti-Israeli, to the point that they may have supported the terror campaign Hamas has been waging against Israel for decades.   

Although most of the money donated through the auspices of the Foundation was used to provide food, schools and hospitals, it appears that a portion of the donated money went to support the families of suicide bombers and may have supported the terrorist campaign in more direct ways. 

Finally, it is entirely possible that the five defendants are every bit the kind-hearted, gentle, family-oriented people their supporters make them out to be.

Much depends on who is allowed to tell the story.

Told from the government’s perspective, the facts are damning.  Giving money to Hamas has been a crime in the United States since 1995.  According to the Clinton and Bush administrations, every dollar donated to Hamas, regardless of the intent of the donor, was legally considered to have supported terrorism. 

In post-9-11 America no one wants to stand up for accused terrorists. 

The government’s first bite at this apple ended in a mistrial, but that was largely because prosecutors confused jurors by inserting too much weak evidence into the prosecutorial mix and by indicting too many defendants with only peripheral involvement.  This time, prosecutors went with their strongest evidence and prosecuted only the central players.

I approach this case with extreme caution.  Although I write in my own name, I am also the primary mouthpiece for Friends of Justice.  I have pro-Palestinian activists on my board and I also have Jewish members who are pro-Israel without being anti-Palestinian.  These people understand the issues far better than I do, and I don’t want to place them in a difficult position by speaking hastily and in ignorance.  As an evangelical Christian, I have my own baggage and biases.  For the record, I have been heavily influenced by Jimmy Carter’s take on the issue. 

Simple justice demands that we look at criminal cases from the perspective of the prosecution and the accused.  We need good prosecutors and reform activists should be thankful for the good men and women who protect society by holding bad guys accountable. 

But what do we do when convicted defendants are good people guided by a worldview that diverges widely from the American mainstream?

It appears that the Holyland Foundation folks were sincerely distressed by the poverty and despair in which they were raised.  Their desire to help the suffering was genuine.  If you want to help poor Palestinians in the West Bank, Hamas is pretty much the only game in town–who else ya gonna call? 

When Hamas was placed on the American list of terrorist organizations, the Holyland people faced a moral dilemma: do we stop giving aid to our people (thus abiding by the law), or do we continue chanelling money to the Palestinians (thus breaking the law)?

This case is riddeled with moral ambiguity.  According to the New York Times account, the first witness to reveal the link between the Holy Land Foundation and Hamas had been tortured by Israeli officials.  Fortunately, the government’s case wasn’t built on the testimony of a single witness with severe credibility issues (as in the Alvin Clay case); still, does torture have a legitimate role in the war on terrorism?  The Bush administration thinks it does; I strongly disagree.

Nancy Hollander, one of the defense attorneys representing the defendants, told the New York Times that the convictions will be aggressively appealed. 

“Our clients were not even allowed to review their own statements because they were classified – statements that they made over the course of many years that the government wiretapped,” Ms. Hollander said. “They were not allowed to go back and review them. There were statements from alleged co-conspirators that included handwritten notes. Nobody knew who wrote them; nobody knew when they were written. There are a plethora of issues.”

 The Holyland Foundation case has been hailed as one of the few success stories in the American government’s legal war on terrorism.  We need to follow this case carefully as it moves through the appeal stage; it could well end up before the Supreme Court.

I am also curious to see how the court handles sentencing issues.  Most of the defendants could die behind bars if maximum sentences are handed down.  Is this just? 

That depends on whether  or not you are sympathetic with the defendants.  If national security is the only issue, we should lock up every person accused of terrorism, no matter how weak the evidence, just to be on the safe side.  In fact, it wouldn’t hurt to lock up people like me who take issue with the criminal justice system.  And while we’re at it, we might as well lock up every Muslim in America–after all, you never know.

But, in America, public safety is never the only issue.  Some people belong behind bars.  Do these defendants fit the profile?  If so, how much prison time is appropriate?  Should the federal judge take the intentions of the defendants into consideration, or should the matter be settled on the basis of simple guilt-innocence determinations? 

I will be re-visiting this case as the appeals process unfolds.

*

Craig Watkin’s picture dominated the front page of Sunday’s Fort Worth Star Telegram.  I doubt the Dallas County District Attorney was pleased with a story that presented him as a thin-skinned whiner with a penchant for playing the race card. 

“I’m consumed with anger all the time,” Watkins told the Star-Telegram. “I really have to think twice when I wake up in the morning not to be angry because of all the things that people have thrown at us.  . . . I could invent a cure for cancer and would be somewhat vilified because I’m black.”

You can’t blame Scott “Grits” Henson for concluding that Watkins needs to develop a thicker skin.

Henson doesn’t think the criticism Watkins has received from his fellow prosecutors, police officers and FOX news has anything to do with racism.  The Dallas DA is telling the truth about our broken system of criminal justice and his critics don’t like it.  Simple as that!

A Wall Street Journal article on Watkins gives equal time to Watkins’ detractors and champions, but you don’t hear the Dallas prosecutor fulminating against white racism in the WSJ.  Either the reporter didn’t ask the right questions or he didn’t think Watkins emotional life was relevant.

I would have to talk to Mr. Watkins personally before commenting on the fairness of the Star-Telegram piece or evaluating his visceral response to the criticism he has received.

One thing is clear; despite all the adulation his reforms have generated, the last two years have been a purgatorial experience for the rookie DA.  Part of the problem is simple inexperience.  Instead of moving up through the District Attorney’s office over a period of decades, Craig Watkins made an enormous leap from the office of a solo defense attorney to the big time.  The emotional adjustment was bound to be rough, especially for a reformer like Watkins.

In a brief companion piece in the Star-Telegram, Watkins discusses his personal opposition to the death penalty.  He isn’t just the only African American District Attorney in Texas; he’s probably the only prosecutor in the state who is philosophically opposed to the death penalty.

As a Baptist pastor who stands up for accused drug dealers, I may have a unique window into Watkins’ soul.  My views diverge sharply from most of my professional colleagues.  Not only am I intellectually aware of that distance; I feel it.  It’s personal.  Professional alienation is hard to handle.  When you are the only person in your profession who isn’t white, the social strain is multiplied. 

It is hard for white people like me to appreciate the travails of our black and brown counterparts.  Watkins feels the havoc the criminal justice system is wreaking in minority communities; his white colleagues generally don’t.  There is a racial element to all of this; just not the one Watkins has identified.

That said, Craig Watkins isn’t drawing fire because he’s black but because he’s a prophet.  The media has treated the Dallas DA very favorably for the most part.  FOX news, the only media outlet to take a serious run at embarrassing Watkins, is just being FOX news.  You can’t invite the Innocence Project to set up shop in the DA’s office without raising the ire of the legal establishment.

I hope Craig Watkins develops a thicker skin before the next election.  We need him, and we need a new generation of prosecutors inspired by his example.  If Watkins wasn’t so emotionally sensitive he probably wouldn’t be taking such courageous stands.  Prophets, by definition, are complicated people.