Patrick Waller wasn’t just convicted of a heinous crime he didn’t commit; prior to sentencing he pled guilty to two other crimes he didn’t do.  He thought it was the only way he could escape a life sentence. 

Click on the video link near the top of this Dallas Morning News article to listen to an innocent man describe the sixteen years he lost to prison.   “I’m no angel,” he says.  True that.  He was a mixed up kid on probation for cocaine possession.  That made him an easy guy to pin a crime on–he fit the thug profile.  So long as they had a good suspect (young, poor, black and on paper), the officers investigating these cases were satisfied. 

Patrick Waller has been exonerated on DNA evidence.  In addition, two of the real perpetrators of the rape and abduction Waller was doing time for have since confessed. 

Nonetheless, one of the victims of the 1992 crime thinks Waller might still be guilty.

Listen to the video clip and you will hear Mr. Waller talk about the other prisoners he has met over the years who cannot prove their innocence due to a lack of DNA evidence.  For every DNA exoneration there are . . .

That’s the trouble, we don’t know how many innocent inmates languish behind bars.  But we are becoming all to familiar with the mechanics of wrongful conviction and the guessing game that create such horrors.

This in-depth article from the Dallas Observer slipped past me when it first appeared in mid-June.  At the time, the NAACP had just decided to de-select Dallas pastor Freddy Haynes as the new president of their illustrious organization.  The article suggests that Haynes’ decision to welcome the Rev. Jeremiah Wright into his pulpit might have had something to do with it.  I suspect it’s true.

Freddy Haynes is the kind of preacher you rarely find in White America.  One minute he will be denouncing racist politicians; the next minute he will ask you to turn to your neighbor and ask, “Are you saved?”

White preachers might do one or the other; never both.  The culture wars have driven a wedge straight down the middle of the white Protestant world; if you are politically and socially progressive you don’t talk about “getting saved”; if you are evangelistic you are almost certainly politically conservative. 

I first met Freddie Haynes just over a year ago when he addressed Call to Renewal’s Pentecost 2007 conference in Washington DC.  A few hours earlier, three members of Friends of Justice had led a workshop on faith-based criminal justice reform and the travails of Jena, Louisiana had been front and center.  When we talked to Rev. Haynes after his sermon he told us he had never heard of Jena but he was interested in hearing more.

The next week, Lydia Bean (our Outreach and Development director) and I had a half-hour conversation with Rev. Haynes and his Minister of Justice about Jena and our criminal justice refrom work.  As the article indicates, Friendship Baptist Church, Haynes’ congregation, eventually sent ten buses to the march on Jena.  I was asked to address an organizing meeting at the church a few weeks before the buses rolled.  My wife Nancy and I were the only white people in a packed room (that happens a lot in our line of work).

Although I have chatted with the Baptist minister on three or four occasions, we have never had anything resembling a real conversation.  The Dallas Observer article provides a whirlwind tour of Haynes’ life history (most of it news to me) and highlights his interest in criminal justice reform.  Dallas DA Craig Watkins is a prominent member of Friendship West and I have always wondered if the congregation made it possible for the maverick prosecutor to launch an all-out (and highly controversial) quest to bring justice to the victims of wrongful conviction.  The article confirms my hunch.

Please give this seven-page exploration of a complicated man your careful attention.  Thanks to preachers like Freddy Haynes the civil rights movement is finally arriving in Dallas, Texas.

The fuzzy line separating truth, lies and guesses shapes the plot of most television dramas and has sustained the mystery genre from the moment Sherlock Holmes picked up his pipe. 

We love a good mystery so long as, in the end, there is resolution.  You know the spinster aunt weilded the knife because, in a good mystery story, she breaks down in self righteous rage and admits the whole sordid truth.  She even tells us why she did it and why she’d gladly do it again. 

That happens in real life too, but not very often.  Criminal cases that go to trial are ambiguous by definition.  The alleged villain claims innocence; a prosecutor says he’s guilty as sin.  Witnesses take the stand, documents are entered into the record, closing arguments are presented and the question is handed to the ladies and gentlemen of the jury.

Don’t let Law and Order fool you, real trials can be excruciatingly dull.  Witnesses rarely break down on the stand and pour out their souls.  Juries are forced to sift through an ungainly assortment of contradictions, evasions and mind-numbing detail.

Most jurors find resolution by siding with the prosecution.  That way they have the satisfaction of taking a rapist, a murderer, an assailant or a drug dealer off the street.  That feels good.  Putting a guy who may be guilty back on the street is bad for the digestion.  If prosecutors really had to prove guilt beyond a reasonable doubt we would see far more acquitals.

A man from Lubbock, Texas recently died after spending the last fourteen years of his life in prison for a series of rapes he did not commit.  According to the Fort Worth Star-Telegram, Timothy Brian Cole professed his innocence from the outset, refusing an attractive plea agreement because it was contingent on a full confession.  Those curious about Mr. Coles’ ethnicity can find a picture of his family here. 

DNA evidence shows that the actual rapist was a man in prison for another crime of sexual violence at the time Mr. Cole was convicted.  The actual rapist confessed to the crime on several occasions but nobody wanted to listen to him.  They had their man.

The jurors who sent Mr. Cole to prison were guessing.  They guessed wrong.  They guessed wrong because a prosecutor guessed wrong.  They guessed wrong because a victim guessed wrong after being shown a photo array designed to emphasize Mr. Coles’ picture.  Investigators rigged the photo array because they too were guessing Cole was the rapist.

Why all this guessing?

People need closure; we crave resolution.  We hate movies that leave us guessing.  Guessing is only fun when you know the truth, the whole truth, and nothing but the truth will be revealed in the end. 

Police investigators and prosecutors are no exception to this rule.  They will make the pieces fit even if they have to shave off a corner here and plaster in a gaping crack there.  Once they have their suspect a false concreteness takes hold.  A fuzzy picture snaps into high definition.  To win at trial, a prosecutor has to appear convinced.  The best way to appear convinced is to actually be convinced.

Prosecutors should be the ultimate skeptics.  Too often, they are playing the guessing game along with everyone else.

Most of us aren’t very good at distinguishing the truth from a lie.  Studies have shown that police interrogators are no better than randomly selected college sophomores at distinguishing between honest and dishonest testimony.  The difference is that professional interrogators say they know who is lying and who is telling the truth; the sophomores admit freely admit that they’re guessing.

Prosecutors guess because law enforcement guesses.  The issue is settled when two or more authorities agree.  Once the official story takes shape it rapidly hardens into fact.  That’s why Tomothy Brian Cole died in prison.

Once law enforcement agrees on the orthodoxy story, it is blindly accepted by prosecutors and jurors.  Most people look to the proper authorities for the answers because they have little confidence in their own empirical skills. The desire for resolution is so intense that innocent suspects will often confess to a crime because they can’t maintain an independent version of the facts in the face of intense interrogation.

A healthy dose of skepticism would have saved Brian Cole, Ann Colomb, Alvin Clay and Freddie Brookins Jr from wrongful conviction.

Our almost religious veneration for authority figures was recently on display in Gerald Missouri when a Tom Coleman style zealot calling himself “Sergeant Bill” came to town claiming to be a federal agent from a “multijurisdictional task force”.   The New York Times story ran this morning under the headline, “Drug arrests were real; the badge was fake.”  Sergeant Bill led local police on a series of no-knock drug raids.  “I don’t need no warrant, I’m a federal officer,” Sergeant Bill would tell suspects as he dragged them out of their beds.

The Times article suggests that most of these unconstitutional atrocities were based on terrorized suspects “naming names” to Sergeant Bill.  Monica Davey, the author of this intriguing piece, scours the midwestern states looking for natural disasters and human interest stories.  For all I know, she could be a trained attorneys.  But her grasp of due process protections seems a bit weak.  These arrests were not real.

Notice how an appeal to federal authority produced instant compliance from a long list of alleged perps, police officers and public officials.  Then a local newspaper editor made a simple phone call and Sergeant Bill’s reign of error was over. 

The lack of independent thinking in Gerald, Missouri is an egregious case of normal.  At every stage of the criminal justice process an uncritical groupthink often substitutes for real evidence.  Uneducated guesses come to the judicial party disguised as unassailable facts. 

You can’t understand how the process works unless you have watched it unfold in real time.  I can imagine how Timothy Brian Coles’ family felt as they watched an innocent man slowly succumb to the guessing game.  

This doesn’t just happen in a few isolated rape cases; it happens whenever the human appetite for resolution trumps independent thought.  The narrative campaigns Friends of Justice undertakes for people like Freddie Brookins Jr., Ann Colomb, Mychal Bell and Alvin Clay reveal the mechanics of wrongful conviction.  When jurors are forced to participate in a guessing game bad things happen to innocent defendants.

Two months ago, a half dozen federal officials traveled to Bunkie, Louisiana to meet with law enforcement and two local citizen organizations.  One meeting emphasized “problem youth” and sagging pants; the second focused on warrantless searches, racial profiling, and of evidence of evidence planting.  

US Attorney Donald Washington told a meeting of the Coalition for Justice that the “sagging pants” people had no complaints about local law enforcement.  Bunkie Police Chief Mary Fanara was claiming that the malcontents were just a bunch of drug dealers and their family members who thought they should be free to peddle their poison in her town.

Who was Mr. Washington supposed to believe?

Then, a day before another scheduled meeting of the Coalition for Justice, 100 police officers from a variety of federal and state agencies swept into Bunkie in the early morning hours, arresting twenty suspected drug dealers.

Score one for the sagging pants people.

Just in case anyone was counting, a middle-aged white couple was arrested along with the usual (black) suspects. 

If any illegal substances were seized during the raid local authorities didn’t publicize the fact.

The Bunkie raid was reminiscent of the infamous Tulia drug sting.  Only half the number of suspects were arrested, twice as many law enforcement personnel were involved, and (unlike Tulia) the federal government (FBI, federal marshalls) were involved.  But the employment of a multijurisdictional task force is standard operating procedure in the war on drugs.

Several parents of defendants spoke at the well-attended meeting of the Coalition for Justice in Bunkie last night; their experiences with law enforcement varied considerably.  Some officers were respectful and professional, producing search warrants and answering questions in a patient and courteous manner.  Other families were not so fortunate.

Several parents reported that law enforcement refused to produce search warrants on the pretext that they weren’t required to.  Some officers, according to reports, refused to identify themselves by name or badge number.

One mother reported that her thirteen year-old daughter had been dragged from her bed and thrown on the floor with a gun pointed at her head.  The officers conducting that raid got the wrong house.  No apologies were offered when the mistake came to light.

Some defendants were allowed to dress; others were hauled off in their boxers with their teeth and hair unbrushed.

Several speakers told the affected families that this is a time for patience.  If the Bunkie Police Department really had conducted a year-long investigation (as newspaper reports claim), and if they have solid evidence to back up their charges, we will respond accordingly.  If, however, no real evidence is produced and everything devolves into the all-too-common swearing match between an undercover cop and a defendant, that will be another matter altogether.

There can be no doubt that Monday’s raid was timed to make the point that the Bunkie Police Department is serious about the drug war and has the full support of state and federal officials.

Friends of Justice was represented at the meeting by Executive Director Alan Bean, Outreach Director Lydia Bean and Dwight Pope and Vanessa Hernandez, our valiant summer interns.  This afternoon we will be visiting with Ann Colomb in Church Point before heading on to Jena to visit with Jena 6 families.

Bunkie has been a slow-simmering story since Friends of Justice was first contacted by local resident Denise Atkins in February of 2007.  After interviewing dozens of concerned people it was clear that an adversarial relationship had developed between the Bunkie Police Department and the poor sector of the African American community.  I talked to four former members of the Bunkie Police Deparment who told me it had not always been thus. 

Two participants in the Tuesday night meeting were former Bunkie residents currently working in law enforcement in Dallas and Los Angeles.  While admitting that every law enforcement agency has its share of problems, the officers in our midst assured us that warrantless searches are not standard procedure in their jurisdictions. 

Another speaker told the group that we have not gathered to express out anger with the Bunkie Police Department.  Anger, he said, is not effective; organizing is.  Law enforcement has a proper and honorable role and we need to honor that; but when police officers behave as if the protections and rights of citizenship do not extend to all members of the community we have a problem. 

And so we wait.  How things will shake out in Bunkie, Louisiana is anyone’s guess.  Repeated efforts to file official complaints with the FBI have thus far proven unsuccessful.  The Alexandria office has made it clear that they will not be investigating in Bunkie.  When complaints are addressed to other FBI offices in Louisiana, complainants are directed to Alexandria. 

Liza Grote of the Louisiana ACLU has written a pointed letter to US Attorney Donald Washington addressing these concerns.  One thing is certain, tensions will continue to simmer in this little town until the right questions are addressed by the appropriate people.  This is an issue of democratice accountability.  Are we a nation that provides liberty and justice for all, or are we not?

The wheels of justice are finally grinding for Albert Woodfox.  The information in this article was culled from a brief conference call sponsored by the attorneys representing the Angola 3, so the details are a bit sketchy.  More coverage is sure to follow and we will keep you updated.

The tragic case of the Angola 3 demonstrates how hard it is for the criminal justice system to admit failure.  The Angola 3 were wrongfully convicted of murder after the State of Louisiana sponsored the perjured (and purchased) testimony of a multiple rapist.  The fact issues surrounding this case are horrendous, but progress was minimal until a broad coalition of attorneys and activists organized around the issue.  Tory Pegram, a Friends of Justice board member who was instrumental in bringing the Jena story to the world, is serving as a communications conduit for this group and, as always, is doing a wonderful job.

It is likely that the judge’s recommendation (see below) will be followed and that Mr. Woodfox will eventually be freed.  Since the fact issues surrounding the Herman Wallace case are very similar, the state will have a hard time holding Wallace if Woodfox has been exonerated.  The dominos are falling in Louisiana. 

http://ap.google.com/article/ALeqM5gath4w-3DpIiMlWbenW2RmQXWJwAD9187GN04

Ex-Black Panthers want freedom after decision

By JANET MCCONNAUGHEY – 12 hours ago

NEW ORLEANS (AP) – Two former Black Panthers convicted of killing a prison guard in 1972 should be freed after a federal magistrate found a previous attorney made mistakes during a trial, their current lawyers said Wednesday.

Magistrate Judge Christine Nolan wrote that Albert Woodfox’s conviction should be overturned because his former attorney should have objected to testimony from witnesses who had died after his original trial and to letting a prosecutor testify about the chief prosecution witness’s credibility. The attorney’s omission denied Wilcox a fair second trial in 1998, Nolan wrote in a recommendation Tuesday to U.S. District Judge James Brady, who will rule later.

Woodfox, 61, and Herman Wallace, 66, spent 36 years in solitary confinement after being convicted in the stabbing death of guard Brent Miller on April 17, 1972. They said they were targeted because they helped establish a prison chapter of the Black Panther Party.

Wallace has been appealing his conviction based on arguments similar to Woodfox’s.

Attorneys plan to meet soon with prosecutors to discuss both cases, in hopes of settling them without any further review, said Attorney Nicholas Trenticosta, who represents Woodfox and Wallace.

But First Assistant State Attorney General John Sinquefield said he plans to ask U.S. District Judge John Brady to reject Noland’s recommendations. Sinquefield prosecuted Woodfox in 1973 as an assistant district attorney and was called as a witness during his retrial in 1998.

Along with another ex-Black Panther convicted of killing an inmate at the prison, the trio became known as the “Angola Three” because they were held in isolation for about three decades at the Louisiana State Penitentiary in Angola, La., about 40 miles northwest of Baton Rouge.

The witnesses who died before Woodfox’s second trial included the prosecution’s main witness – an inmate who made a deal in exchange for his testimony – and an expert who talked about blood spatters on clothing that state officials said had been lost, Nolan wrote.

Asked Wednesday about his testimony regarding the witness, Sinquefield said, “I was subpoenaed, and I testified under a subpoena over there and told the truth the best I could remember it.”

The attorney also should have asked for money to hire experts to testify about blood, DNA and fingerprints and other evidence in Woodcox’s defense, the magistrate wrote.

Noland also noted strong evidence of misconduct by prosecutors but said she declined to go into detail because the ineffective counsel alone was grounds to overturn the conviction.

Trenticosta asked the Louisiana Supreme Court on Wednesday to consider Wallace’s case. Although a state court commissioner had recommended overturning his conviction, a district judge refused and a state appeals court rejected Wallace’s arguments last month.

Wallace and Wilcox were kept in solitary confinement from 1972 until March, when they were moved to a maximum-security dormitory. Woodfox was serving 50 years for armed robbery before the 1972 charge.

The third member of the “Angola Three” spent 29 years in isolation before his conviction was overturned in 2001. Robert King, known as Robert King Wilkerson in the 1970s, pleaded guilty to conspiracy to commit murder and was freed.

King said he now lives in Austin, Texas, and supports himself by giving talks about his case and that of Woodfox and Wallace. “I keep the focus on Herman and Albert,” he said.

When they went to Angola, the prison was known as America’s bloodiest. Murders were common and, according to testimony at Woodfox’s 1998 trial, there were widespread problems with rape, Noland wrote.

Asked about the long years in isolation, King said, “It’s like being in hell.”

On the first day of Alvin Clay’s trial in late May, I walked from Little Rock’s Central High School to the federal courthouse.   I wanted to feel the shift from the Old Jim Crow segregration of 1957 to the New Jim Crow regime on display at Mr. Clay’s trial.  As I walked, I remembered sitting in courtrooms in Texas and Louisiana.  I remembered the helpless feeling of watching a wrongful conviction unfold before your eyes and being powerless to stop it.

A week later, with the Clay trial more than half over, I was feeling upbeat. I saw the coming verdict as a coin toss. The government’s case was remarkably weak; but I knew it didn’t have to be strong.

When the closing arguments were over I knew Alvin was going down on all counts. Steven Snyder, the assistant US attorney was afire with indignation, his arguments precisely tailored to the fears and loyalties of his audience. Defense attorney George Hairston was badly off his game.

Perhaps it was the fact that somebody had broken into Mr. Hairston’s hotel room the night before and stolen his closing argument along with the rest of his laptop computer. Perhaps the aging attorney was showing early signs of senility. Whatever the explanation, only a stellar performance would have removed the governments trump cards from the table, and Hairston hadn’t come close.

Friends of Justice intervenes in cases with a high potential for wrongful conviction.  Kareem Abdul Jabbar White was convicted in September of 2000, the last of nine drug defendants tried in the Swisher County courtroom.  We had spent nine months watching one defendant after another convicted on the uncorroborated word of a remarkably corrupt undercover officer named Tom Coleman. Ultimately, Coleman implicated three-quarters of the young black males in Tulia.

A month after Kareem was convicted; the Tulia story was featured in the New York Times. But three years would pass before the defendants were pardoned by Governor Rick Perry and released from prison. Everyone associated with the Friends of Justice became personae non grata. The ordeal was particularly draining for people like Nancy Bean, a school teacher who had to face the angry glares of the respectable folk every work day.

When you think your phones are tapped, and you know someone just disabled the brakes on your car, time moves slowly.

I spent the four months after Mr. White’s conviction pouring over Joe “Booty Wooty” Moore’s trial transcript.  None of the lawyers involved in the legal fight had considered filing a writ of habeas corpus on Joe’s behalf, so we decided to write one ourselves.  I soon realized that I was studying the mechanics of wrongful conviction.

Moore had been convicted in December of 1999 and sentenced to 90 years (another defendant received multiple 99-year sentences).

Joe Moore

Joe Moore had been convicted on drug charges a decade earlier and, with his knees bad and his diabetes worse, he lived in fear of returning to prison. On two separate occasions, Tom Coleman had attempted to lure Joe into selling drugs. Both times, the hulking hog farmer ran the skinny cop off his property.

Joe’s jury didn’t know about Coleman’s checkered past. And Joe’s court-appointed attorney provided what must be the most counterproductive defense in the annals of jurisprudence. Still, I kept wondering how the uncorroborated testimony of a stranger could overcome the presumption of innocence?

Alvin Clay’s trial inspires similar questions.

The convictions of Joe Moore and Alvin Clay trials followed the same narrative arc: A low-status black defendant, one documentable “prior bad act”, a fiery close from the prosecution, a placid performance from the defense attorney, a lying witness, and an all-white jury.

Actually, there was a single African American on Joe Moore’s jury, the daughter of a Baptist preacher. She knew Joe just well enough to question the government’s case, but her doubts were no match for the certainty shining in the eyes of eleven white jurors. These people didn’t think Joe was guilty; they knew it. The man had been a bootlegger, a notorious gambler and a womanizer back in the day; so he had to be guilty of this one too.

None of the early members of Friends of Justice had much prior experience with the law. We were preachers, slaughter house managers, wheat farmers, school teachers and juke-joint proprietors. When we heard that forty-six drug kingpins were peddling poison to school children in tiny Tulia, Texas, we didn’t believe it.

I can never forget the headline in the local paper: “City streets cleared of garbage”. A few days after reading these words I shared my concern with the Sunday school class at the Baptist Church. I was particularly bothered by the repeated use of the term “scumbag” in reference to defendants the newspaper editor didn’t know personally. “I had always believed that defendants are to be considered innocent until proven guilty,” I said.

A red-faced man told me that the defendants were guilty, all forty-six of them. Moreover, they were all going to jail. A few months later, this man served as chairman for a jury that sentenced a young first-offender to forty-five years for selling drugs to Tom Coleman.

When the Sunday school class ended, a local businessman took me aside. “It’s these black athletes,” he confided. “They score a few touchdowns and they think they’re gods. They think they can smoke their dope and mess around with our girls, and, well, something had to be done.”

All of the original Friends of Justice expected to get out of the criminal justice reform business the moment our fight in Tulia was over. Most of us did. But the phone calls didn’t stop. At first the anguished voices on the other end of the phone came from Tulia; then from surrounding counties.

Never Again Rally, 2001

Simply by publishing a factual narrative of these cases in independent newspapers we found we repeatedly embarrassed the state into doing the right thing. Before the drug sting defendants got some justice, Friends of Justice had overturned three smaller cases in the Texas panhandle.

Then the calls started arriving from further afield. Ann Colomb, a housewife from Church Point, Louisiana, told us that the federal government was using convicted drug dealers to accuse her family of running a multi-million dollar drug ring out of their modest FHA bungalo.

I could imagine a small town sheriff and a dim-witted gypsy cop cooking up a bogus drug bust in the Texas panhandle; it never expected to see the federal government following suit. There is no parole in the federal system, inmates were facing multi-decade sentences, and they could win time cuts of five years or more by providing “substantial assistance” to the US attorney’s office.

It was obvious from the outset that astute inmates were hosting perjury parties behind bars. The government had to provide defense counsel with summaries of each contact they have with inmates. By placing these reports in chronological order, I could see the Colomb family name spreading from inmate to inmate and from prison to prison.  Letters started arriving at the US Attorney’s office offering information about “the Culone’s” or “the Colognes”. 

Ann hadn’t taken the Colomb name until she remarried her current husband, and none of her sons went by the name.  Common sense suggested that the letter writers were willing to implicate total strangers if that’s what it took to lop half a decade of their sentences.  One inmate eventually admitted that he paid over $2000 to a cellmate for identifying information on Ann Colomb and her sons.l

After interviewing almost every important person in the Colomb’s social world I knew the government’s vast cocaine enterprise was a complete fantasy.

Ann Colomb

I still believe that most federal prosecutors wouldn’t have gone after the Colomb family on such shoddy evidence; but if a rogue prosecutor decides to prosecute, there is little recourse.  There are few limits to prosecutorial discretion.

Innocence projects are springing up across America in the wake of a horrifying string of exonerations. Are wrongful convictions confined to the relatively small number of cases involving DNA evidence, or is the problem just as serious in narcotics and conspiracy cases?

DNA evidence had no bearing on the Joe Moore case, it didn’t help Ann Colomb and, when I first arrived in Jena, Louisiana, I knew it wasn’t going to help Mychal Bell either.

Could it be that established civil rights organizations are attaching the shopworn categories of the 1950s and 1960s to a social landscape they no longer fit?  What if the civil rights abuses of the 20th century are mutating into exotic strains as a new century unfolds? And what if the pills and potions that vanquished the Old Jim Crow are no longer effective?

The Old Jim Crow regime maintained social distance between white people and black people. The New Jim Crow uses mass incarceration to maintain social distance between the beneficiaries of our Brave New economy and those who have been left behind.

America hasn’t always locked up six to ten times as many of her citizens as other western democracies. The shift from Old Jim Crow segregation to New Jim Crow incarceration began in the early 1980s and continues apace. Our prisons are overflowing with drug addicts, nickel-and-dime drug dealers, the mentally ill, the mentally retarded, and the adult children of dysfunctional parents.  Some of these people belong behind bars.  Others can’t cope on the streets, but don’t belong in prison.  Thousands, we believe, are innocent of the charges that placed them behind bars.

Friends of Justice argues that mass incarceration multiplies the social problems it is designed to relieve. In the process, the potential for wrongful conviction has risen dramatically.

Our Common Peace Initiative encourages a shared quest for viable alternatives to mass incarceration. A second program, Operation Blind Justice, uses narrative intervention to expose the mechanics of wrongful conviction.

This explains our interest in the plight of Alvin Clay. The Little Rock attorney outraged the US attorney’s office by exposing an undercover sting operation that made Tulia’s Tom Coleman look like Andy Griffith. All fifty of the people targeted by the Arkansas operation were African American.

By sponsoring the perjured testimony of a corrupt officer, Alvin Clay argued, the federal government had forfeited the national trust.

When a confidential informant told his handlers that thirty-four of the fifty defendants indicted in the wake of Operation Wholesale were innocent, no one believed him.  Roy Lee Russell was charged with perjury and a rookie attorney was assigned to his defense.

When Alvin Clay showed that he was willing to go to the wall for low-status defendants, the FBI was called in to investigate the Little Rock attorney. No evidence of wrongdoing had surfaced, but the government knew that if they looked hard enough they would come up with something.

All they needed was evidence of one bad act and a witness willing to point the finger.

Civil Rights activists have spent the past half century searching for another Rosa Parks story.

The New Jim Crow regime has been kind to Rosa parks and her spiritual heirs. The great divide is no longer between black people and white people; but between those who have adapted to the rules of the new economy and those who either cannot or will not adapt.

A civil rights story illuminating current problems will almost always feature compromised defendants. The futile search for unsullied subjects injects Old Jim Crow assumptions into a New Jim Crow reality.

The judicious use of perjured testimony is the critical cog in the machinery of wrongful conviction. In Tulia, Tom Coleman pointed the finger and the rules of evidence kept Coleman’s crazy quilt past out of the courtroom.  In the Colomb case, the federal government paraded a dozen convicted drug dealers before the jury. With all that smoke there had to be some fire somewhere.  In the Clay trial, the government sponsored the testimony of a pathological liar.  It may be legal, but it’s morally abhorrent.

Getting a witness to point the finger at an innocent defendant is not easy. Even drug addicts and drug dealers will dig in their heels when asked to send an innocent man to prison.

Donny McCuien knew Alvin Clay was innocent; that’s why he was seen weeping in the witness room. Two of the inmates who came to Lafayette prepared to testify that they had purchased drugs from the Colombs blew the whistle on a perjury scam once they met the convicted defendants and realized they didn’t fit the dealer profile.  In Tulia, a compromised informant named Eliga “Man” Kelly refused to lie for the government.

It takes a crude cocktail of threats and promises to shape perjured testimony.

Once witnesses have testified, however, it is almost impossible to get them to recant. Witnesses who admit to perjury will be convicted of perjury. Prosecutors and police officers insist they were acting in good faith and no one prove otherwise?  Proving malicious intent is virtually impossible.

When all the mechanics of wrongful conviction are considered together it is hardly surprising that only 5% of cases make it to a jury? In most cases, this is because defendants are guilty as charged. But innocent people will  frequently take a plea bargain if they don’t think they stand a chance with a jury.

America can’t retreat from its dysfunctional love affair with mass incarceration unless we concede that the war on drugs is unwinnable, that prison is no place for addicts, the mentally ill or the mentally retarded and that our prisons have devolved into crime schools.

Friends of Justice is not satisfied with snatching the occasional brand from the burning. Our narrative interventions highlight egregious examples of business as usual.  Unlike legal professionals, we are free to critique the justice system on moral grounds.

Narrative interventions produce teachable moments. By documenting cases of wrongful conviction as they unfold we demonstrate how that the normal functioning of the criminal justice system regularly produces unjust outcomes.

The real culprit is the system itself.  Machinery is designed to replicate a predictable outcome. When high demand pushes the assembly line to the breaking point all attempts at quality control are abandoned.

In theory, the appeals process culls the bad cases from the criminal justice production line. But so long as the moving parts of the judicial process are working properly, appeals courts express satisfaction with the final result. So long as the losers in this process appear to low-status thugs, no one is concerned.

After three decades of mass incarceration there is a growing hunger for a better way. Friends of Justice wants to get people talking about viable alternatives to a failed status quo.  We invite you to join the conversation.

Alan Bean
Friends of Justice

Google “all white jury” and Mychal Bell of the Jena 6 will be at the top of the list.  According to Jena 6 attorney David Utter, not a single African American has been seated in the Jena courtroom since 1994 (that’s not a typo).

I didn’t say much about the racial composition of Alvin Clay’s jury during the trial; they deserved a chance to show their shine.  If any of the jurors in Clay’s case wish to respond to my harsh assessment I will be happy to discuss the issues in private, or to publish your views without comment. 

Alvin Clay’s jury filed out of the court room at the lunch hour.  The first order of business had to be polishing off the boxed lunches provided by the court.  Then they had to pick a foreman.  To get a verdict decided in an hour, the foreman only had time to take an initial poll of the jury.  There couldn’t have been the slightest hint of disagreement. 

In short, a one-hour verdict is really a ten-minute verdict.  

This case boiled down to a swearing match between Alvin Clay and Donny McCuien.  Judge Leon Holmes admitted as much when he denied a defense motion for acquittal.  Only one witness suggested that Alvin Clay was in on the conspiracy: Donny McCuien.  To convict Clay on all counts, you had to believe McCuien.

Judge Holmes ruled (correctly) that he was not allowed to assess the credibility of witnesses; that was a job for the jury.

McCuien testified in exchange for lenient treatment.  He quickly learned that the federal government had no interest in Donny and Ray; they wanted Alvin.

Donny and Ray would have pulled off their scheme without detection if the government hadn’t been trying to nail a black Little Rock attorney who had embarrassed them once too often.  Even if the feds had stumbled upon their real estate scam, they would have tossed it to state officials.  It’s a simple slam dunk document case that would never have gone to trial.

McCuien originally told the government he had no association with the Nealy scam until late in the game.  In reality, McCuien was instrumental in linking both buyers and sellers with Nealy.  The buyers were contacted at Burger King and most of the sellers lived in McCuien’s neighborhood. 

When FBI agent Rodney Hays learned he had been scammed by McCuien he made no attempt to alert the grand jury to the fact that they had been scammed.  Hays knew what the US attorney’s office was looking for and he gave it to them, even if he had to suborn perjury to do it.  So long as Hays delivered the goods, all sins would be forgiven.

McCuien was all too cooperative.  He told Hays that Nealy and Clay had cashed in big-time by selling a home to a woman named April Flowers.  Unfortunatgely for McCuien, when the feds raided Nealy’s office they found no reference to the phantom transaction.  You can’t work with a lending agency and a title company without creating a paper trail.  Donny McCuien was scamming the federal government and they knew it. 

So long as McCuien was feeding the feds what they wanted, they proved to be remarkably forgiving.  He could lie to them as long as he was also willing to lie for them.

McCuien and Nealy assured Alvin Clay that rehab work was being completed and he believed them.  This was also the testimony of the sellers, lenders and title agents involved in this case.  Jurors were asked to evaluate the truthfulness of this testimony.  If they believed Clay they had to acquit.  If they thought he was lying, they had to convict. 

Jurors were assured that, although Donny McCuien had a history of lying to the federal government, he was now telling the truth.  

Steven Snyder made this assertion forcefully and earnestly.  There wasn’t a shadow of equivocation in his voice or in his manner.  He was a preacher on fire with the very truth of God.

In reality, Steven Snyder is just a guy who chose to believe a witness he knew was lying to him because that’s what it took to convict the defendant du jour.  Unlike men like Bob Govar and George Vena, Steven Snyder didn’t have a personal dog in this fight.  He couldn’t drop the charges against Clay without making his colleagues in the Eastern District look suspect, so he packaged a notorious liar as the voice of truth.

Snyder didn’t enjoy the task that had been dumped into his lap.  Throughout the trial he looked like a man on the verge of a nervous collapse.  But when he got in front of the jury he was a man on a mission.  Everything was simple; the case was unassailable; Clay was guilty.  Period!

That’s what prosecutors are paid to do.  Defense attorneys are paid to do the reverse. 

But how could the jury be so thoroughly convinced by Donny McCuien that they reached a verdict in less time than it took to bolt down a box lunch?

In theory, the government had to prove that Alvin Clay was guilty, and they had to prove it beyond a reasonable doubt.  And they had to do all of that with nothing to work with but the word of a notorious liar who lied to the jury just as he had lied to buyers, sellers, Alvin Clay and the federal government.  In theory, selling McCuien as a credible witness should have been a tall order, but it wasn’t.

I doubt jurors spent a lot of time assessing Donny McCuien’s credibility.  McCuien was believed because he was singing in harmony with the Federal Bureau of Investigation and the US Attorney’s Office.  A liar was believed because he was standing on the side of the Eagle.  

The Alvin Clay trial was a marketing scam.  Most middle class white jurors are like the guy who would rather push a Ford than buy a Chevy.  They believed McCuien because he was sponsored by the Eagle.  They pulled for the scruffy hustler in the ill-fitting suit for the same reason they will pull for TEAM USA at the Olympics.  It’s their brand, their team, their product of choice.

They would have believed Alvin Clay if he was allied with the Eagle brand.

Black jurors, as a group, are a much harder sell than white jurors.  Black Americans were only half as likely to back the invasion of Iraq.  They wanted more assurance than the simple fact that the Eagle was in a warlike mood. 

Black Americans are half as likely as their white counterparts to express confidence in the criminal justice system.

Jurors want to believe they have sacrificed two weeks of their lives to some noble purpose.  Putting a bad guy behind bars makes them feel good.  Acquitting a man who may or may not be guilty leaves them feeling uneasy and dissatisfied.  Give them clear evidence of innocence and they will acquit; otherwise, they will convict.  Every time.

Judge Holmes once said that pregnancies resulting from rape are as rare as snowflakes in Miami.  So are acquittals in federal trials.  (In fairness to Holmes, he has since admitted that the “snowflakes in Miami” remark was over-the-top and inaccurate).  

A fascinating study conducted by Tufts Unversity shows that white jurors are far more willing to consider the racial dynamics of a trial, are more attentive to detail, and are more concerned with due process issues when they are working shoulder-to-shoulder with minority jurors.  (More on this groundbreaking study can be found here.)

The Alvin Clay trial shows what happens when white jurors hold the fate of a black man in their hands.   Few white jurors aren’t consciously aware of their own prejudices.  But the Tufts study found that white jurors think and behave differently when they work with black jurors.  The effect is so strong, in fact, that simply knowing they are going to be working in a diverse setting impacts the pre-deliberation attitudes of white jurors.

Black jurors would have asked why it had taken the federal government five years to bring this black attorney to trial, and why the feds were in bed with a proven liar.  

White jurors easily convince themselves that a case has nothing to do with race, even if the judge, the prosecutors, the FBI agents, and all twelve jurors are white.

Black jurors would have written off Donny McCuien as just another Uncle Tom snitch selling his soul to the man. 

That’s precisely who Donny McCuien is; that’s why he was weeping in the witness room.

Steven Snyder didn’t lose any sleep last night.  He convinced himself that Alvin Clay was guilty long ago.  With that issue settled, the federal functionary was willing to climb under the covers with McCuien.

But Steven Snyder doesn’t have a clue what transpired between Clay, Nealy and McCuien.  Only two men who graced Leon Holmes’ courtroom know the truth–Alvin Clay and Donny McCuien.  On the stand, Clay was respectful, calm, reasonable, and revealing.  The government didn’t catch him in a single contradiction.

McCuien’s testimony was bizarre, desperate and demonstrably false.  He had memorized a few catch lines, but was utterly flummoxed when defense questions wandered off the subjects on which he had been carefully prepped by the FBI.  Every claim he made was impeached by credible witnesses.

For instance, McCuien claims that, following the FBI raid, Clay told him to lie to the authorities.  Jeron Marshall was testifying for the government under full immunity, but she testified that McCuien told her that Clay told him to “tell the truth”. 

A jury with three of more African Americans would never convict a man like Alvin Clay on the basis of such shoddy “evidence”.  White jurors wouldn’t have done it either if anyone had been in the room to pose the hard questions. 

I have been asked if it is possible to appeal a conviction on the basis of jury composition.  Not unless it can be demonstrated that the selection process was flawed in some way.  I will leave it up to the lawyers to address that issue. 

The deeper question is how seriously we take the right of every American citizen to be tried by a jury of peers?  If Alvin Clay possessed that right, it would have taken his jury longer than ten minutes to send him down the river.

All White Jury Reaches Verdict Over Lunch

Judge Leon Holmes’ Courtroom

I never get used to this.  Alvin Clay and I spent a couple of hours together last night.  He had spent a grueling day telling his story to the jury and I knew he was drained.  He seemed surprisingly quiet and resigned as we considered the “what next” question.  Part of him, I suspected, was eager for some closure.

Alvin asked me how I was feeling about the trial.  “I have never seen an all-white jury do the right thing,” I said.  “Maybe this time will be different.”

It wasn’t. 

I don’t blame the jurors.  They looked like pleasant, well-intentioned people; but they had obviously achieved consensus by the time the box lunches were cleared away.   This wasn’t a difficult decision for them. 

Steven Snyder is a deliberate, painstaking prosecutor with a mind-numbing attention to detail, but his opening and closing remarks to the jury were incendiary.  The evidence presented at trial may have been all-smoke-and-no-fire, but his closing statements burned the courthouse down.  Almost trembling with righteous indignation, Snyder derided the heartless greed on display in the Nealy-McCuien real estate scam.  The fact that the only witness to suggest Alvin Clay knew what was going on was a pathological liar wasn’t mentioned.  It was easy to forget that the US government told this man how to testify and then pretended to believe him.

After closing arguments I went to lunch with Alvin’s parents, his brother, and Sharon Christianson, a good hearted woman from New Jersey who answered my call to attend Mr. Clay’s trial.  We ate our meal, dissected the closing statements, looked for rays of hope and found none.  By the time we made it back to the courtroom the jury had its verdict.

Alvin Clay needs a world class appeals attorney. 

If you fit the bill, or if you know of someone who might, please call me (817-688-6765).  Alvin already has compentent counsel; what he needs is someone who is exceptionally skilled at writing appeals.  This case will give you plenty to work with. 

When the white jurors had delivered their verdict, Judge Holmes announced that there was a fire alert so the courthouse had to be vacated immediately.  The jury hurried out of the building.

When I arrived at street level a small crowd of twenty supporters was numb with grief.  The fire alert had been cancelled, but a fire truck was still waiting at curbside.  There hadn’t been a real fire; they were just being careful.

It seemed appropriate somehow.  There hadn’t been any fire in the courtroom either, but the jury decided to err on the side of caution.  Donny McCuien may have told a few lies.  In fact, every word he uttered was impeached by more credible witnesses.  But you couldn’t side with the government unless you believed McCuien.  Mr. Snyder believed him.  So did Mr. Hays, the clean-cut FBI agent.  So the jury went along for the ride. 

They almost always do.

When a jury without a single black juror convicted Ann Colomb and her sons of selling millions of dollars of drugs from their FHA bungalo, I printed an angry diatribe called “The end of the innocence” (based on the popular song Tucker Melancon played during sidebar conferences).  The local paper printed my piece in their web blog.  A young Latina, the only non-white juror, called me up the next day.  Her initial reaction had been the same as mine, but eleven white folks disagreed and she lost her nerve. 

If any of the jurors in the Clay trial read this please know that I’m not angry with you.  I only ask that you read my Vindictive Prosecution piece before laying this exhausting chapter of your life to rest.  You owe that much to Alvin Clay. 

Friends of Justice is just getting started with this case.  Every intervention we have ever performed began with a conviction; it’s just a painful part of the process.  The Alvin Clay case demonstrates, in real time, how and why innocent people are convicted in these United States.

If we hope to build a new civil rights movement in this country we must learn to engage the courtroom.  Alvin Clay is the closest thing to Rosa Parks we are going to find.  The Old Jim Crow (Jena notwithstanding) is largely an artifact of history. 

But the New Jim Crow is just as frightening.  Check into any courthouse in America and you will quickly learn what I mean.

We need to transcend the “Sharpton Syndrome” that has sucked energy and credibility from the faded remnants of the old civil rights movement.  We wait passively for a sign of unequal treatment, then we intervene before the media loses interest–often without checking our facts.  The goal is to lure in the cameras even if this means standing with irresponsible prosecutors like Mike Nifong in North Carolina.  We go for the spectacular cases that have already grabbed the headlines.

Instead, we need to seach out the anonymous tragedies unfolding under our noses.

Alvin Clay has been subjected to a vindictive prosecution and investigation stretching over five long years.  The government’s behavior has been outrageous and criminal; but nobody knows because hardly anyone is paying attention.

A mature movement will focus on folks like Alvin Clay. 

The courthouse really is on fire, folks.  It’s time to grow up and get real. 

Alvin Clay took the witness stand today in a tense confrontation with his accusers.  U.S. Attorney Steven Snyder, sparking with righteous indignation, spent several hours lighting cigarettes, playing with matches and rubbing sticks together.  The idea was to convince his all-white jury that a few whiffs of smoke translate into the great balls of fire promised in his opening remarks.

Nothing would catch.  The courtroom got a bit hazy a time or two, but there was never a hint of fire.

Alvin Clay was composed an confident.  He established eye contact with the jury and employed a frank and respectful tone throughout.  Defense attorney Ron Davis made a few vague references to vindictive prosecution, but he was shut down in mid-sentence by Mr. Snyder.

The government shuns embarrassing questions because it doesn’t have any good answers.

• Why has the government hitched its wagon to a man who lies when the truth would sound better?
• Why has the government spent five years and a million dollars in pursuing an innocent man?
• Why did the government initiate an investigation of Alvin Clay before they had any evidence of wrongdoing?
• Why has the government used the threat of pain and the promise of relief to suborn perjury from its star witness?
• Why did FBI agent Rodney Hays lie to a judge to get a search warrant and perjure himself before a grand jury to get an indictment?
• When the Eastern District of the US Attorney’s Office was forced to recuse itself from this case; why did the Western District pick it up?

I could go on, but you get the idea.

Alvin Clay started the day talking about his childhood, his education and his early interest in real estate.  He told the jury that he obtained a contractor’s license because he wanted to rehab affordable housing for low income tenants; a way of doing well by doing good.  He talked about meeting Ray Nealy and why he trusted a man who was unworthy of his trust.  He talked about his hands-off management style and why he will be far less trusting in future.

Clay frustrated Steven Snyder by refusing to defend his negligent behavior.  “The buck stops with me, whether I knew what was going on or not,” he said.  “At the end of the day I have to take full responsibility for what happened.”

But asked if he was guilty of engaging in the conspiracy cited in the indictment, Clay was adamant.  “My intent was to do a legitimate construction transaction,” he told Mr. Snyder.  “I absolutely did not know that any fraudulent activity was being done by Ideal Mortgage [Ray Nealy’s operation].”

When Snyder tried to suggest that Clay had misrepresented his intentions to title companies by submitting invoices for work which was never performed, Clay refused to take the bait.  He had been informed that the rehab work had been completed, he said, and he believed these representations.  “The invoices were not false or phoney,” Clay told Snyder.  “What was phoney was the applications submitted by Ideal Mortgage.”

Clay repeatedly pointed out that the invoices, though made out in his name, were actually created by Ray Nealy.

Clay admitted that he had been far too trusting of Ray Nealy and Donny McCuien and that he should have personally inspected the worksites to make sure that all the work was being completed.

Curiously, Clay’s trust in Donny McCuien is currently mirrored by the government; but with one important difference.  Clay believed McCuien before the man had shown his propensity for lies and larceny; the government believed the man after his deep flaws were a matter of public record. 

This isn’t a case of the government being snookered by a snake oil salesman; it’s a case of the government telling the salesman what kind of snake oil to sell.  The message is simple: “Don’t lie to us; lie for us.”

By the end of the day, Steve Snyder was lighting matches like a man possessed, but to no avail.  He asked Clay why he had failed to mention Clay Construction on a list of companies he owned when he filed for bankruptcy in 2001.  Clay answered quietly that the company had yet to transact a dime’s worth of business and had therefore slipped his mind.  He had no sinister reason for leaving Clay Construction off the list since it had no effect on his financial situation.

When Ray Nealy poked his head in the door and told Clay that another deal had closed, the Little Rock attorney wanted to see three things: the invoice, the check and the HUD 1 (a document signed by all parties at closing).  If the dollar amount on these three documents matched up, Clay was satisfied.  The HUD 1 form showed him that the terms of the transaction were acceptable to the buyer, the seller, and the lender.  If they were satisfied, Clay was satisfied.

Next, Clay would take Donny McCuien to Simmond’s Bank, write himself a cashier’s check for the amount he was owed, and a second check for McCuien.  He would then make a copy of both checks and staple them to the appropriate invoice so his financial man could write an accurate 1099 for the IRS stipulating how much money each man received.  This was his usual way of doing business because it ensured that the federal government would have a clear paper trail.

“I have held myself out as a hardworking attorney,” Clay told the jury.  “Not perfect, but not the sort of person who would be involved in these kind of shenanigans.  The hardest part has been knowing that I didn’t do what the government has accused me of doing.  There are aspects of the government’s investigation that have frankly been improper.”

The jury never heard Clay elaborate on this theme; Steven Snyder immediately objected and Judge Leon Holmes sustained the objection.

Snyder landed a few glancing blows, he never connected with a solid punch.

Shortly after 3:30, the defense rested and Judge Holmes dismissed the jury.  First thing tomorrow both sides will make their closing statements and the jury should have the case my 10:00.  We could have a verdict by noon, and will almost certainly have one by the end of the day.

Can 12 white men and women understand that the government hasn’t got the lightest idea what transpired between Ray Nealy, Donny McCuien and Alvin Clay?

Can they grasp the fact that only two witnesses know for sure if Mr. Clay was in on the conspiracy; Donny McCuien and Clay himself? 

Donny McCuien took the stand and insulted the jury’s intelligence.  Every other word he spoke was a lie and the government knows it.

Alvin Clay took the stand today and gave a credible and consistent explanation of his relationship to Nealy and McCuien.  His testimony throughout was consistent with what we have heard from other witneses; it possessed the simplicity of truth.

If the government really had to overcome the presumption of innocence their cause would be hopeless.  If they really had to prove guilt beyond a reasonable doubt I would already be celebrating.  Unfortunately, the government’s burden is remarkably low.  They will argue that Clay should have known what was going on.   They will ask the jury to make an educated guess based on common sense.

White folks trust the government.  Twice as many white Americans supported the invasion of Iraq as black citizens.  A few months into the conflict, the gap had widened further.  White Americans believe the criminal justice system is fundamentally fair; most African Americans do not.  White Americans love to bash the government, but when it comes to security issues they are loyal patriots.

In a criminal case, an all-white jury will tend to support the government unless a defendant can prove innocence beyond a reasonable doubt. 

Two facts should doom the government’s case: (a) they need Donny McCuien to connect Clay to a conspirary; (b) Donny McCuien is a pathological liar.

Tragically, a jury is perfectly capable of finding Alvin Clay guilty even if they are convinced of both ‘a’ and ‘b’.  Only 5% of federal trials end in acquital.

That said, I have never seen the federal government put on a weaker case than we have seen in the first six days of this trial.  Nor have I seen a more eloquent, persuasive and savvy defendant than Alvin Clay. 

If you are the praying kind, please pray for Alvin Clay, his family and his friends.

If you ain’t the praying kind . . . please make an exception in this case.

O what a tangled web we weave, when first we practice to deceive

Sir Walter Scott

The government’s case against Alvin Clay proceeded at a jackrabbit clip because the government doesn’t have a case against Alvin Clay.

Alvin Clay’s defense has moved ahead with even greater dispatch because the defense can’t accuse federal actors of suborning perjury.

The day began with a motion for acquittal from Mr. Hairston. “It is very, very clear that Alvin Clay had absolutely no part in submitting fraudulent loan applications . . . The buyers, without exception, denied knowing Mr. Clay . . . The only witness to inculpate Mr. Clay was Donny McCuien, and his testimony has been absolutely impeached. . . There was no testimony that Mr. Clay entered into an agreement to commit fraud. There is no evidence that Mr. Clay knew that the money paid to him came from illegal conduct by Mr. Nealy and Mr. McCuien, and Mr. Clay sought to account for the money he received.”

Judge Leon Holmes was unmoved. “It is not my job, nor am I permitted, to judge the credibility of witnesses,” he said. “According to Donny McCuien, Alvin Clay knew no work was done, or intended to be done. If the jury believes that, there is evidence to convict.”

My mind wandered back to the testimony of a woebegone crack addict named Stevie Charlot in the case of Mary Ann Colomb and three of her sons. After twice denying in transcribed and tape recorded affidavits that he had ever bought drugs from the Colombs, Charlot took the stand at trial and spouted a pathetic river of contradictions.

So lamentable was Charlot’s performance that federal judge Tucker Melancon called it “an abomination.”

Yet, like Leon Holmes, Melancon was powerless to intervene. After being convicted by an all-white jury, Ann Colomb and her sons were eventually exonerated and released.

Stevie Charlot and Donny McCuien perjured themselves for the same reason Galileo told the Inquisition that the sun revolves around the earth-they were shown the instruments of torture.

I do not condemn torture victims for their actions, however ignoble.  John McCain had his limit, and I know I have mine.

I have a harder time forgiving men like Rodney Hays and Assistant US Attorney Steven Snyder who use the government’s arrows and olive branches to suborn perjury. They do it for the same reason agents of the federal government at Abu Graib and Guantanamo Bay do what they do: the behavior is first tolerated, then accepted and finally expected. It’s all in a day’s work.

Last week, the government’s own witnesses frequently contradicted Donny McCuien’s testimony. Today, with the defense calling the witnesses, it just got worse.

McCuien had testified that he never owned or sold properties.

“I purchased a couple of properties from Donny McCuien [Jr],” Patrice Dean told the jury this morning. To make the homes ready for sale, Dean said, McCuien “fixed a front door, shingles, and a portion of the roof.”

Later, she said, McCuien also did some rehabilitation work on some apartments he sold her.

McCuien has insisted that he never owned construction tools, that he had never used tools, that his father didn’t do carpentry didn’t own any tools.

This morning, Donny McCuien Sr, took the stand. He testified that he owned a wide range of heavy construction tools and that Donny Jr. frequently borrowed them but never gave them back. “He had a key to get access to my storage shed,” Sr. explained. “Donny borrowed some of my tools and I never got them back. I can’t say what he done with them.” These tools included generators, reciprocating saws, hacksaws and circular saws.

Later, a contractor named Roma Isom testified that Donny McCuien Jr. had sold him “Compressors, generators, nail guns, and a couple of other items.” In other words, Donny Jr. stole Donny Sr.’s tools and sold them to the highest bidder. Perhaps it’s not stealing if the victim is your own sweet dad.

The heart of Donny Jr.’s testimony was that Alvin Clay didn’t own a real contracting company, had never done any contracting work, and had no expectation of ever doing so.

A contractor named Roma Isom testified that Clay Construction performed $21,000 of rehab work on one of his properties in September of 2002. The work was subcontracted to another individual and passed two inspections, one from an Arkansas housing inspector.

Isom didn’t recall ever seeing Alvin Clay on the worksite. It wasn’t unusual, he said, for contractors to own no equipment, employ no staff, and to subcontract all of the work to second parties.

Then Graylon McFadden testified that he had performed subcontract work for Clay Construction. “I had several carpenters helping me out,” he said, including his son Darren McFadden, a two-time Heisman runner-up for the Arkansas Razorbacks.

Billie Burnett, a handyman who admits to being a habitual criminal, entered the courtroom between two burly prison guards. Clad in an orange jumpsuit and flip flops, he didn’t immediately inspire confidence, but he proved to be the most convincing witness to take the stand thus far.

Asked if he was a felon, Burnett shook his head in agreement. In fact, he said, he had been convicted of burglarizing businesses on five separate occasions. He wasn’t bragging; it was just who he was.

Burnett told the jury that he had done rehab work on three of the five properties at issue in this trial. At McCuien’s request, he had done yard work, painting, floor finishing and roofing work.

Burnett testified that he met McCuien when “I was working on a house on Elm Street and he stopped me and asked if I did general [contracting] work.” On one of the properties he did “roofing work on a garage and put a ceiling on a garage bedroom. Probably took me about two days.”

McCuien paid Burnett in cash.

Two real estate agents who had worked for Clay Realty talked about his loose management style. “Some offices wanted you to sell a lot,” Kevin Howard testified; “but with Alvin, what you brought in was what you brought in.” Howard called Clay “laid back.” “You basically worked your own deal.”

Geno Tucker told the jury that he worked out of his home while working for Clay Realty, coming to the office only when he had a contract. “It was ideal for me because I had a second job. I could do my thing on my own with little supervision from Mr. Clay.”

Clay’s style was so casual, in fact that “he didn’t even look at the contract; he just took my word for it.”

This hands-off approach would not serve Alvin well when he ran across slick operators like Nealy and McCuien.

When Rodney Hays was called to the stand the faces at the prosecution table went gray.

George Hairston is generally quiet and respectful when questioning witnesses. When dealing with inveterate liars like Hays and McCuien, however, the elderly black attorney goes through a curious transformation. He once broke off a conversation with me because the break was almost over, McCuien was on the stand, and “I need to go off by myself for a minute and get my mean on.”

“All the files you used to prosecute Alvin Clay came from Ray Nealy’s office, right?” Hairston asked.

“Correct,” Agent Hayes said.

“You and McCuien both use the term, ‘correct'” Hairston pointed out. “You two have had a lot of contact, have you not?”

“We have met a couple of times.”

“Just a couple?” Hairston asked, his voice rising.

“We have met multiple times,” Hays admitted.

“Multiple times?” Hairston repeated. “Then why did you say just a couple?”

The FBI man was taken through the history of the prosecution, especially the eleven months stretching from the raid to the eventual indictment. Hairston asked why the original prosecutor, George Vena had been replaced and why his successor, Karen Whately, had been taken off the case?

Steven Snyder was immediately on his feet questioning the relevance of the question. The entire Eastern District of Arkansas had been yanked off the case by the feds in Washington; but the prosecutor didn’t want the jury to know that.

Judge Holmes said he was inclined to agree with Snyder but said he was ready to listen to Hairston’s side of the argument.

“Let me see if I can persuade you,” Hairston said with a wry smile. The two sides met for a sidebar discussion.

The attempt at persuasion having failed, Hairston moved on to Donny McCuien.

Hairston handed Hays a transcript of the notes he had taken after talking to his star witness. Did Donny talk about a deal involving April Flowers that was just like the five real estate deals cited in the indictment.

“Correct,” Hays said.

And wasn’t McCuien upset because Clay, Nealy, Flowers and the loan processor all profited handsomely from the deal while he had to settle for a crummy $1,000.

“I don’t know that there was any Clay Construction involvement in her case,” Hays said.

“Did any of that even occur?” Hairston asked.

“In this incidence, I think Mr. McCuien was confused about some of the details with April Flowers,” Hays said.

“Was he confused, or was he just lying?” Hairston shot back.

When Hays continued to prevaricate, Hairston sharpened the question.

“Did you find that Mr. McCuien’s credibility was somewhat suspect, sir?”

“He made plenty of statements up here and that’s his view of things. Is everything he told me truthful? He is like any other witness; he has his own perspective on things.”

Hairston then asked the witness if he had told the original grand jurors that McCuien wasn’t deeply involved in the fraudulent real estate deals and that he had been “brought in at the end.”

Hays eventually admitted that he had learned soon after that McCuien had lied to him.

“But you didn’t go back and correct the grand jury did you?” Hairston asked.

Judge Leon Holmes rose to Hay’s defense. The defense team had been told that they couldn’t refer to vindictive prosecution and Hairston was getting into that territory.

Hairston changed direction. McCuien had testified that, in the immediate aftermath of the raid, Alvin Clay told him to find some witnesses willing to lie on his behalf. But on Friday, Jeron Marshall testified that McCuien had given her a different version of that conversation a few days after it happened. McCuien told Marshall that Alvin had simply told him to “tell the truth.”

“Did that influence your sense of his credibility?” Hairston asked.

The government objected and Judge Holmes sustained the objection.

Evidentiary rule 608 allows a witness to give his personal estimate of another person’s reputation for honesty; but specific bad acts cannot be referenced unless it resulted in a felony conviction. Since Hays had already given his opinion of McCuien’s credibility, no more specific lies could be mentioned in the hearing of the jurors.

It was this line of reasoning that allowed Terry McEachern to wrongfully convict several dozen defendants in Tulia, Texas eight years ago (before Governor Rick Perry was forced to issue mass pardons).

A strict interpretation of Rule 608 means that Hairston couldn’t accuse Hays of suborning perjury because Hays has yet to be convicted of that crime. The fact that he is clearly guilty is neither here nor there.

Hairston had intended to push Hays much harder, but a glance at the jury made him reconsider. He didn’t want them feeling sorry for the hapless FBI agent.

Only one witness remained, Alvin Clay. Although it was only 3:30, Judge Holmes agreed to call a recess until Tuesday morning.

The jury may have this case as early as tomorrow afternoon. They will be asked to adjudicate a swearing match between Donny McCuien and Alvin Clay. McCuien spelled his name correctly; after that it was all downhill.

Tomorrow, Alvin Clay gets his chance to set the record straight.

 Alvin with his mother