Saturday, June 30, 2012

RE-EXAMINING THE LUCASVILLE UPRISING: Essay 1


The first in a new series of essays by Staughton Lynd, leading up to the 20th Aniversary Conference of the Lucasville Uprising in April of 2013. Reviewing this background page and this timeline might help provide a context and more general understanding for the detailed information contained in Staughton's essays.


RE-EXAMINING THE LUCASVILLE UPRISING: Essay 1

By Staughton Lynd

April 2013 will be the 20th anniversary of the 11-day uprising at the Southern Ohio Correctional Facility (SOCF) in Lucasville.  This is the first in a series of articles that will appear monthly  in the Columbus Free Press and on the website “lucasvilleamnesty.org” in preparation for a conference at Columbus State Community College on April 19-21, 2013, devoted to “Re-Examining the Lucasville Uprising.”
Unlike a case where there is one homicide and one defendant, such as the Troy Davis and Mumia Abu Jamal cases, the Lucasville events involve ten homicides and  approximately fifty indictments.  The reader may be helped by the chronology that appears together with this essay, compiled by Alice Lynd.
            Appeals of the five death-sentenced Lucasville defendants—Siddique Abdullah Hasan f.k.a. Carlos Sanders; Keith LaMar a.k.a. Bomani Shakur; Jason Robb; George Skatzes; and James Were a.k.a. Namir Abdul Mateen--are in the federal courts.  As of this writing, the next event open to the public may be an oral hearing in Cincinnati before the Sixth Circuit Court of Appeals in the case of Keith LaMar.
 Several other defendants--such as Darnell Alexander, Cecil Allen, Thomas Blackmon, Derek Cannon, Greg Curry, Leroy Elmore, Eric Girdy, Timothy Grinnell, Edward Julious, Kenneth Law, Rasheem Mathews, Johnny Roper and Orson Wells--are serving long sentences.  Because these men were not sentenced to death they are no longer represented by counsel.
A number of prisoners who were in L-block during the rebellion and became prosecution witnesses have been released.  These informants include Robert Brookover, Stacey Gordon, Miles Hogan, Louis Jones, Stephen Macko, Rodger Snodgrass, and Timothy Williams.  Some of them are behind bars again for a later offense.
            We do not forget Beverly Jo Taylor’s husband, the family of murdered officer Robert Vallandingham, and the officers who were taken hostage but survived.

The Truth, the Whole Truth, and Nothing but the Truth

            What purpose is served by once again asking questions about the origins of the disturbance, about the complicated story of the occupation of L-block, and about the trials that followed?
            I have written a book about the Lucasville uprising, Lucasville: The Untold Story of a Prison Uprising, published in 2004 by Temple University Press.  A second edition, with a Foreword by Mumia Abu Jamal, was published by PM Press, Box 23912, Oakland, CA 94623, in 2011.  And much of the evidence on which these essays will be based was pinpointed in a law review article entitled “Napue Nightmares: Perjured Testimony in Trials Following the 1993 Lucasville, Ohio, Prison Uprising,” Capital University Law Review, v. 36, no. 3 (Spring 2008).
            So, again, why revisit these events another time?
            The answer is simply that I, along with a growing number of persons who have taken an interest in the Lucasville cases, am convinced that the truth about these events remains untold in the courts as well as in the media.  Not enough folks have read my book or law review article.  Putting these articles on a website as well as in the Free Press  introduces the story to people who get most of their information from the internet.
            I should add that I have read, and do not indiscriminately discount, Officer Larry Dotson’s narrative of his experience as a Lucasville hostage.  For example, his account of how, blindfolded as he was, after Ms. Unwin’s press conference on the morning of April 14 he heard a “dramatic increase of verbalized tensions within L-corridor,” corroborates what I learned from other sources.       
Yet the fact remains that the narrative presented by the prosecution in trial after trial of Lucasville defendants rested on unreliable testimony of prisoner informants, who received substantial benefits before and after their testimony, was unsupported by objective evidence, yet continues to be credited by courts. 


Contradictions

Where there was objective evidence, as in the testimony of medical examiners, often it flatly contradicted what prosecutors were telling the jurors.  Here are examples:
George Skatzes (pronounced “skates”) was found guilty of the murder of prisoner Earl Elder, and sentenced to death, for allegedly directing Rodger Snodgrass to enter cell L-6-60 where Elder was confined and stab him to death.  Both Snodgrass and another prosecution witness, Timothy Williams, testified that the weapon Snodgrass carried resembled an ice pick and made a small, round hole.  However, the medical examiner (Dr. Larry Tate) said that the fatal blows were struck by an instrument with a wide blade; a small piece of glass was found in the lethal wounds; and prisoner Eric Girdy later came forward to say that he had helped to kill Elder using a “shank” made from a piece of broken glass in one of  the officers’ restrooms.  Girdy also stated under oath that Skatzes was not present and had nothing to do with Elder’s death.  (Although Girdy was indicted and found guilty of Elder’s murder, prosecutors have made no attempt to vacate this portion of Skatzes’ sentence.)
Skatzes was also sentenced to death for the murder of prisoner David Sommers.  The prosecutor argued that a number of prisoners including Skatzes had stabbed, strangled, and battered the victim.  But the medical examiner (Dr. Leopold Buerger) testified that Sommers had been killed by a single, massive blow to the head, struck by a blunt instrument such as a baseball bat.  The testimony of prosecution witness Snodgrass, as to where Skatzes was and what he did when, was inconsistent with the theory that Skatzes struck the fatal blow.  Moreover, the prosecution in a subsequent separate trial sought and achieved the conviction of another prisoner, Aaron Jefferson, for striking the same blow!  Once more, Dr. Buerger testified.  State v. Jefferson, Tr. at  267-68, 275, 283.  Again he insisted that the cause of death was one single massive blow to the head.  Asked whether the fatal injuries could have been the result of multiple blows, the doctor pointed to a picture of the head and told the jury that all the underlying skull fractures were the result of “just that one blow.”   (And a bloody baseball bat found across the corridor from the space in which Sommers was murdered was destroyed by order of the chief Lucasville prosecutor, Mark Piepmeier, apparently without any effort to test the bat for fingerprints or DNA evidence.)
Another contradiction between objective medical testimony and prosecution theory occurred in the trials of Jason Robb and Siddique Abdullah Hasan (formerly Carlos Sanders) for the murder of Officer Vallandingham.  The medical examiner who testified in both trials was Dr. Patrick Fardal, chief forensic pathologist and deputy coroner for Franklin County.  In the Robb trial, the prosecution offered informant testimony that the men who killed Officer Vallandingham stood on an object like a metal weight bar and rocked back and forth on his neck, crushing the trachea.  Dr. Fardal testified that there was “no injury to the voice box or the trachea” and that “Mr. Vallandingham died solely and exclusively as a result of ligature strangulation.”  State v. Robb, Tr. at 4433, 4442.  Undaunted, the prosecution presented the same lurid testimony about a weight bar in Hasan’s trial a year later.   Dr. Fardal once again stated under oath that the cause of death was ligature strangulation, that the larynx had not been crushed, and that he could say with a reasonable degree of scientific certainty that there had been no rocking back and forth on Officers Vallandingham’s neck by two men standing on a weight bar.  State v. Sanders, Tr. at 4166-67, 7174-76.


Who Killed Officer Vallandingham?

            The fundamental incoherence between, on the one hand, the narrative offered by prosecutors to southern Ohio juries, and, on the other hand, a fair-minded later investigation, is suggested by the fact that the State of Ohio still does not know who killed Officer Vallandingham.
There is general agreement of all parties that Officer Vallandingham was murdered by prisoners in pod L-6 on the morning of April 15.  Who were these murderers?
On January 18, 1996, prisoner Alvin Jones (a.k.a. Mosi Paki) was tried before an administrative body known as a Rules Infraction Board for being one of two killers.  Jones was found guilty.  Sergeant Howard Hudson, the chief investigator of the Lucasville murders for the State, signed a summary of his own witness testimony to the R.I.B. including the statement:  “[Kenneth] Law took himself out of act & replaced himself with inmate Darnell Alexander.”  (Emphasis added.)  Thus, as of 1996, the State identified Officer Vallandingham’s hands-on killers as Alvin Jones and Kenneth Law.
On February 24, 2004, however, Chief Lucasville Prosecutor Mark Piepmeier and Assistant Prosecutor William Breyer filed a “Motion to Dismiss Defendant’s Petition to Vacate” in the Skatzes case wherein they outlined a theory that Carlos Sanders had ordered James Were to supervise the killing of Officer Vallandingham, and stated on page 26 of the brief that “Inmates Law and Allen were the other two participants.”  (Emphasis added.)  “Allen” was Cecil Allen, another Lucasville defendant.
Thus, the State of Ohio has identified four men--Alvin Jones, Kenneth Law, Cecil Allen, and (in place of Law) Darnell Alexander--as possible candidates for the two men who killed Officer Vallandingham.
In 2010, documentary filmmaker Derrick Jones interviewed Daniel Hogan, who prosecuted Robb and Skatzes and is now a state court judge.  Hogan told Jones on tape:  “I don’t know that we will ever know who hands-on killed the corrections officer, Vallandingham.” Later Mr. Jones asked former prosecutor Hogan:  “When it comes to Officer Vallandingham, who killed him?” and Mr. Hogan replied:  “I don’t know.  And I don’t think we’ll ever know.”


If Not Them, Then Who?

            Unsure who the actual killers of Vallandingham were, the State concentrated at trial on naming those who it claimed ordered the killing.  Conveniently for the prosecution, these were alleged to be the leaders of the uprising who met periodically to determine the occupation’s strategy, who acted as spokespersons for the prisoners in rebellion, and who negotiated the peaceful surrender that took place on April 21:  Sanders, Robb, Skatzes and Were.  By seeking the death penalty for these supposed leaders, the State could kill four potential organizers of future rebellions with one set of executions. 
            All four men were said to have been present at a meeting of prisoner representatives between 8 and 9 a.m. on the morning that Officer Vallandingham was killed, Thursday, April 15.  The critical evidence was a so-called tunnel tape  that secretly recorded the conversation above the tunnel in pod L-2.
Tunnel Tape 61 was revised over a period of years in preparation for trial.  Prisoner informants Anthony Lavelle and Rodger Snodgrass took part in the editing process, supposedly identifying for members of the prosecution team the voices of prisoners who were present at the meeting.  Nevertheless, the product was so problematic that, in the second trial of James Were, Judge Fred Cartolano ordered the court’s own reporter to listen to Tunnel Tape 61 over a weekend and report her corrected version.  When the reporter testified on Monday that what she heard was dramatically different from the version of Tunnel Tape 61 offered as an exhibit by the State, Judge Cartolano abruptly ordered that her work product should be disregarded and the prosecution’s version received into evidence.
Even so, Tunnel Tape 61 does not report a decision to kill a hostage guard.  The transcript of Tunnel Tape 61 that became the official version, first at the Robb trial and then in later proceedings, is available to the reader as Appendix One to the first and second editions of my book, Lucasville.  The transcript shows that the prisoners who took part in the April 15 meeting certainly discussed killing a guard.  But, recognizing the grave possible consequences of such action, the discussants agreed to wait until a second meeting later that same day to make a final decision.
Given the State’s inability to determine who did the actual murder and the inconclusive content of Tunnel Tape 61, a fair assessment of who ordered the killing of a hostage officer requires more than a transcription of that tape.  Such an assessment must examine what the prisoner in question did and said, individually, at the meeting and afterwards.            
For the moment, let us consider only the alleged role of Hasan (Sanders), whom the State portrayed as the mastermind and supreme leader of the whole insurrection. 
Informant Rodger Snodgrass testified at Hasan’s trial that Hasan was present at every meeting of the prisoners in rebellion and played the role of “lead chair” at the morning meeting on April 15.   It was Hasan, Snodgrass stated under oath, who called for a supposed vote on whether to kill a guard.  State v. Sanders, Tr. at 2651.
Yet the transcript of Tunnel Tape 61 is unclear whether Hasan was even present at the meeting.  In James Were’s first trial, Sergeant Howard Hudson, the prosecution’s lead investigator, was asked if he recognized the voices on Tunnel Tape 61.  He said that he did, and named the men whose voices he recognized   Sergeant Hudson was asked and answered:  “Q.  [Did you hear] any voice that you have identified as belonging to Hasan, the Muslim faction leader, the imam?  A.  No, sir, I don’t believe he appears.”  State v. Were I, Tr. at 1037, see also 1046.  The prosecution’s own transcript of Tunnel Tape 61 shows  that Stanley Cummings, not Hasan, chaired the meeting on the morning of April 15.
Perhaps recognizing the problem they would face in connecting Hasan with the April 15  “vote [to kill] meeting,” prosecutors presented to the Were and Sanders juries an imagined sequence of events in which, later that morning in pod L-6, Hasan directed Were to direct the killers to murder an officer.
This scenario rested entirely on the testimony of a single prisoner, Kenneth Law, who was at the time an informant.  In a later essay we shall follow the concoction of this falsehood step by step as it evolved and was used at trial in 1995-1996, and then unraveled when Law recanted.


The Law of Prosecutorial Misconduct and What Is to Be Done?

            Here we shall pause in the recitation of official skullduggery and ask, as a conclusion to this Essay 1, What is the law of prosecutorial misconduct?  And if we satisfy ourselves that such misconduct occurred in the Lucasville prosecutions, what can we do about it?     
The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.  United  Sates v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989), citing United States v. Bagley, 473 U.S. 667 (1985).  The same result obtains when the prosecutors, although not soliciting false evidence, allow false evidence to go uncorrected when it appears.  Napue v. Illinois, 360 U.S. 264, 269 (1959);  Giglio v. United States, 405 U.S. 150, 153 (1972).  And the principle that a State may not knowingly use false evidence, including false testimony, to obtain a conviction, continues to apply when the false testimony goes merely to the credibility of the witness, because the jury’s “estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.”  Napue, 360 U.S. at 269.
The burden in establishing prosecutorial misconduct is on the defendant.  It is not enough to show that two government witnesses testified differently.  In order to prevail on a claim that his or her due process rights had been violated by the use of perjured evidence, a defendant must show the statements (a) were actually false; (b) were “material,” that is, sufficiently significant to have potentially caused a different outcome; and (c) were known or should have been known by the prosecution to be false.  United States v. O’Dell, 805 F.2d 637 (6th Cir. 1986), cert. denied, 484 U.S. 859 (1987).
            Underlying these formulations there is an interesting history going back to the false imprisonment of a radical labor organizer named Tom Mooney at the time of the first World War.  See the opening pages of my article, “Napue Nightmares.”  But for us, confronting the 20th anniversary of the apparent miscarriage of justice in the Lucasville trials, there is a more immediate question:  What can we do about it?
            The answer that has come into focus for the Lucasville Five and for our support group as a whole, is: amnesty   That is why our website is named “lucasvilleamnesty. org.”
            The dictionary defines “amnesty” as an English word derived from the Greek word for “forgetting.”  “Amnesty” differs from “clemency” in that each is a form of pardon, but “amnesty” applies to a group, not just to a single defendant.  Thus Webster’s Encyclopedic Unabridged Dictionary of the English Language defines “amnesty” as  “an act of forgiveness for past offenses, especially to a class of persons as a whole.”
            I base my own support for a Lucasville amnesty on arguments brought to my attention by two members of the Lucasville Five.  One of them said to Alice and myself more than fifteen years ago:  “I don’t believe in the criminal injustice system.  We have to reach the court of public opinion.”  He hoped that we could develop a documentary like The Thin Blue Line to prove the innocence of the prisoners sentenced to death.  The other said only a few weeks ago:  “We must find a way to go on the offensive.”
            Each of the Lucasville prisoners condemned to death has a separate case and a separate defense team.  These individual cases cannot readily be used to demonstrate patterns of prosecutorial misconduct that affect all Lucasville defendants, like the blatant use of uncorroborated snitch testimony.  Therefore, we need an out-of-court strategy. 
            There are important precedents for an amnesty.  In 1975, Governor Hugh Carey of New York proclaimed an amnesty for both prisoners and guards involved in the Attica events of 1971.  In 2000, after the grounds for convicting several defendants had been shown to be unreliable, Governor George Ryan of Illinois declared a moratorium on exevcutions.  Later, he pardoned four prisoners and commuted the sentences of the remaining prisoners on death row to life without the possibility of parole.  In 2011, Governor Pat Quinn signed a bill abolishing the death penalty in Illinois.  We will discuss these precedents in a later essay in this series. 
And at our conference in April 2013, we must define our strategy for achieving the same result in Ohio.       
                              
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1 comment:

  1. The article "Napue Nightmares..." can be read here: http://publicdefender.mt.gov/training/09/Annual09/LyndLawReview.pdf
    (for hyperlink) or ordered here: https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=36+Cap.+U.L.+Rev.+559&srctype=smi&srcid=3B15&key=fc3f61ce60d588d9bb06e05b7d859e3d.

    The book can be ordered here: http://www.pmpress.org/content/article.php?story=staughtonlynd#lucas

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