By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Stunned, Byram sought out the jury forewoman. She was told that jurors thought Sullivan guilty from the start. They assumed there must have been more evidence the first time he was tried, the woman told Byram; the fact that the head DA was trying the case pointed to his guilt as well. It didn't hurt the state's chances when at one point a bailiff walked into the deadlocked jury negotiations and said whoever was in the minority ought to switch over so everybody could go home. "Let's be on the safe side" was the way the forewoman summed it up for Byram. There's always an appeal if we're wrong.
That disclosure was enough to get Sullivan yet another trial. In October 1995 he was once again found guilty of second degree murder. This time the defense did try to introduce the testimony about Simp, but the judge barred most of it, calling it hearsay. Byram has not received the transcripts from that trial and doesn't know whether there will be yet another appeal.
Common sense might seem to dictate a higher standard of conduct on the part of the state in capital cases: more care in marshalling evidence, more attention to proper procedure. Not so, according to Margulies. Precisely because the stakes are so high, he says, "There is a willingness to create evidence, to pervert the rule of law to achieve your end, which is killing this guy you've demonized."
"What happens in death penalty cases is that the spotlight is on the prosecutors," says Sandra Babcock, an assistant Hennepin County public defender who used to work with Margulies in Texas. "They're high-profile cases, and there is intense pressure to win. It's easy to see why--you have a crime that's horrific, public opinion is in favor of swift and speedy conviction, and you have people clamoring for the death penalty as a remedial measure." A 1992 study by the Washington D.C.-based Death Penalty Information Center underlines the same tendency, citing case after case in which prosecutors and police coerced witnesses, secretly paid informants, and buried exculpatory evidence.
St. Paul criminal defense attorney Deborah Ellis is working on a case in which prosecutors changed a key piece of evidence just prior to trial without informing the defense. Louisiana death row inmate Glenn Ford, who is black, was convicted of the execution-style shooting of a white jewelry store owner in 1983. The case against him consisted mostly of a partial fingerprint consistent with Ford's that was found inside a paper bag at the scene. Police also found some tiny dots of chemical residue on Ford's hands--possibly consistent with gunpowder, according to the prosecution--and discovered that he had later fenced some of the goods stolen that day.
Rising from her chair, Ellis proceeds to illustrate some of the more egregious problems with the state's case. Left-handed Ford, she says, leaning over and pointing her finger like a gun, would have had to shoot toward himself, according to the bullet's trajectory. As for the trace chemicals on his hands, "They could have come from a car battery. They could have come from the goods he handled. They could have come from anyone else who handled a gun."
Thin as the material evidence was, the linchpin of Ford's defense was the question of timing. The hour of the victim's death had been fixed by the testimony of a local coroner and of a friend who had spoken with the man on the phone shortly before finding him dead; witnesses placed Ford across town at the time. When the trial started, the state unveiled a coroner from another county, who claimed the shooting had taken place almost two hours earlier. "The poor defense attorney," says Babcock, "had a chart and everything, showing how his client wasn't anywhere near the place. Had based his entire opening argument on it. He could have asked for a mistrial. I think he realized he could have." But, she says, the case had almost bankrupted his personal practice already, and "in my opinion there was no way he could have afforded a mistrial. He needed to finish the case." Ford was sentenced to death; ironically, his alleged accomplices were released without ever facing trial.
An appeal was filed soon after the conviction. Ellis says it was pathetic. "When I got this case, I got a huge box of transcripts from the clerk of court's office," she says, raising her voice. "It was not just a few little papers. It took a couple months to read. And there was this thin little brief that had been filed. It didn't even cite the insufficiency of the evidence." Ford's case is currently pending.
The Supreme Court has spent the past decade erecting roadblocks to death row appeals. In Teague vs. Lane the court ruled that even when it establishes new standards for review, those standards do not apply to anyone who has already had a trial and direct appeal. In McCleskey vs. Kemp, when a black defendant's attorney offered statistical proof that the killers of white people were more likely to get the death penalty in Georgia, the court replied that it was not enough to prove the system was racist; proof of specific bias would have to be offered in each particular case.