It is now only a matter of weeks, or days perhaps, before Herman Wallace dies of the liver cancer that is ravaging his body. He will likely die in prison, at age 72, without proper medical treatment, after spending nearly four decades in a 6' by 9' cell. He was placed in solitary confinement after being convicted in January 1974 of killing a prison guard at Louisiana's notorious Angola prison. Wallace is black. The guard was white, and so was each member of the southern jury that convicted him.
The case against Wallace was pitifully weak when it was presented to that jury; some of the constitutional infirmities at trial were almost farcical. But over the years the courts of that state, along with Congress and the federal courts, have constructed a mighty wall protecting that jury's verdict. Layer upon layer of procedural protections has been built around it so that today, as Wallace nears death, it is easy to see the vast gulf that exists here between law and justice.
And that, ironically, may be the most important legacy Wallace leaves from his miserable time on this earth. A member of the famed "Angola 3," Wallace in life has been a symbol of many different things to many different people. He has generated more than his share both of pity and scorn. In death, however, he will become a symbol of a justice system that too often prizes finality over accuracy, but without the candor or courage to actually say so. The law says that Herman Wallace got a fair trial. But we all can judge for ourselves what that really meant to a black inmate in Louisiana in 1974.
Wallace and three other black prisoners at Angola were charged in May 1972 with the murder of a white guard named Brent Miller. The investigation into the crime was aggressive, naturally, and all of the witnesses, of course, were already incarcerated. There was trouble from the start. The prison warden and the associate warden feuded over how to proceed. At least one inmate later testified that he was beaten during the interrogations that followed. One coerced witness fingered another, who in turned fingered Wallace, who was already well-known to prison officials because of his work on the nascent Angola chapter of the Black Panther Party. Apart from the lack of evidence against him, Wallace was a perfect defendant.
Bloody fingerprints and a knife were found at the crime scene, but none of the prints belonged to Wallace or any of his co-defendants. The state police testified later that although they had on file the fingerprints of every Angola prisoner the bloody prints from the crime scene were checked only against the suspects that prison officials already had identified and just a few more people. Seven witnesses testified that Wallace could not have been at the scene at the time of the crime. Two other witnesses directly implicated Wallace; two others testified against him less directly. Not only was the testimony of these four inmates internally inconsistent, it also was inconsistent with the testimony each of the others had given.
At first, all four co-defendants were represented by the same attorney -- a clear and actionable conflict of interest. Then, midway through the trial, one of Wallace's co-defendants switched sides, made a deal with prosecutors, and became a government witness. During one recess, Chester Jackson left the courtroom as a defendant and returned minutes later, taking a seat with prosecutors at their table. The judge gave Jackson's stunned (now) former attorney all of 30 minutes to "regroup" before requiring him to cross-examine the man who just minutes earlier had been his client. Later, state attorneys would argue that this gave Wallace an advantage because the lawyer had inside information on his former client.
The trial lawyer later said that prosecutors never approached him to ask permission to talk with Jackson. Nor did the judge permit the defense to see two prior written statements Jackson had signed that might have impeached his credibility. In the version of the story Jackson offered at trial, he was able to offer details about the murder -- to implicate Wallace -- even though he said he was hiding behind a wall at the time of the crime. In one of the versions he had signed before trial, he had testified that he had seen, through a window, Wallace stabbing the guard.
In a case with no physical evidence and no confession, the testimonies of the other witnesses against Wallace were both crucial and tainted. One such witness suffered from schizophrenia, a fact hidden from Wallace's attorney. Another witness evidently was at one time during the investigation a suspect in the murder (another fact that was not disclosed at the time of the trial). Yet another inmate, who was not called as a prosecution witness at trial, had given prison officials a statement that might have helped exonerate Wallace. But that statement was never disclosed to the defense.
In the end, after quick deliberations, Wallace was convicted of murder and given a life sentence in Angola -- which meant decades of isolation in a 6' by 9' cell. To make matters worse, his lawyer then failed to appeal his conviction. It would take 16 years, until 1990, before an appellate court took a look at Wallace's case. And by that time, those procedural barriers had begun to pile up. More than 25 years after trial, a hearing commissioner reviewing the record of the case called it "the most disgusting thing I have ever seen." But it didn't matter. That commissioner's recommendation of relief was immediately, and virtually without comment, reversed.
The Next 40 Years: Louisiana
What happened next, what happens so often when the flaws of old tainted trials are exposed to the light of day, is that the gatekeepers of the criminal justice system, the prosecutors and state judges, became more interested in defending the verdict than in testing its accuracy. From 1992 to 2009, confronted with more and more compelling evidence of the constitutional failings of the trial, the Louisiana Supreme Court nonetheless refused on four separate occasions to consider Wallace's claims for relief. To this day, the highest court in that state has never issued a substantive ruling on any of the material issues arising from one of the state's most infamous cases.
Worse, the few dissenting voices that emerged from decades of judicial review were promptly squashed. In 1999, one state appellate judge declared that witness Jackson's mid-trial switch from defendant to prosecution witness suggested the presence of an undisclosed deal with the state. In 2006, another state judge recommended that Wallace's conviction be overturned because the defense was never told at trial about "material impeachment evidence" regarding Hezekiah Brown, the second primary witness against Wallace. When Louisiana's appellate judges reversed these rulings, they did so with virtually no substantive legal analysis.
Wallace's last chance for relief is now pending in federal court. The state's brief is a classic example of the types of procedural arguments states now use to block meaningful appellate review. Twenty-six pages of Louisiana's 64-page brief, for example, are devoted to reminding Chief U.S. District Judge Brian A Jackson that he is duty-bound to reject Wallace's claims unless he finds that the Louisiana courts were both "incorrect" and "unreasonable" in their application of the law. No matter how egregious those state court rulings may be, Louisiana argues, they are presumed to be correct and Wallace must prove otherwise by "clear and convincing" evidence.
Trial prosecutors failed to tell Wallace about a deal with witness Hezekiah Brown? No matter, state lawyers now argue; even if such a deal occurred, it was between the prison warden and the witness, and not between prosecutors and the witness. Brown received special privileges in prison after he incriminated Wallace? Received weekly deliveries of cigarettes and other favors? No matter, state lawyers now argue, because there is scant proof that any agreement existed between the warden and the prisoner before trial. There is scant proof because all of the witnesses now are dead and because Wallace's attorney never appealed the verdict.
So inmate Brown, who was once a suspect in the murder of the guard, later testified against Wallace and received extensive benefits from the warden. Brown was removed from the general prison population. The warden wrote letters on his behalf for parole. And decades later, the warden testified that he had promised Brown aid before trial because "he had cracked the case for us." Yet none of this was enough to convince the state courts of Louisiana that Brown's testimony might have been tainted and that, even if it weren't, that Wallace was entitled to know about these arrangements at the time of trial.
The state court review of the Wallace verdict, in other words, was deliberately indifferent. But the law accounts for this. It's why there is a federal habeas review -- a procedural mechanism that permits federal judges to give men like Wallace a fairer and more neutral evaluation of their claims. But here, especially, lawmakers and judges have built walls separating law and justice. The Wallace case is a prime example of the ways in which the Antiterrorism and Effective Death Penalty Act and other statutes have undercut the strength of the Great Writ of Habeas Corpus, a building block of Western law.
The Next 40 Years: The Feds
Wallace filed his last appeal in 2009. It took 18 months for Louisiana to respond. And then it took more than two years -- until September 13th of this year, two weeks ago -- for U.S. Magistrate Judge Stephen C. Riedlinger to issue a ruling on the merits denying all of Wallace's claims for relief. That ruling, styled as a "Report," is a 65-page paean to form over substance, an example of how diligent the law can be in avoiding a search for the truth. First, there was the obligatory recitation of the statutory and case law that has whittled down to a nub the scope of the writ of habeas corpus. Then there was the logic. Here is just one example:
Petitioner asserted that in 1998, 14 years after he was convicted, he obtained documents discovered by co-defendant Woodfox which indicated that the State suppressed evidence that Warden Henderson provided Brown favors and promised to help him obtain a pardon in return for Brown's testimony at the petitioner's trial..
The foundation of the petitioner's Brady claim is centered on testimony of Warden Henderson and corrections officer Bobby Oliveaux at Woodfox's 1998 retrial. Oliveaux testified that Brown was housed at the dog pen and received cigarettes, birthday cakes and incentive wages. Warden Henderson testified essentially that at some unspecified time prior to Brown's trial testimony he promised to help Brown obtain a pardon...
Wallace's Brady claim that the State failed to divulge the fact that Brown had received "favors," such as desirable housing in exchange for his testimony, is without merit. Suppression exists only where a defendant did not - and could not - know about the essential facts that would enable him to take advantage of the evidence... Garretson, the petitioner's attorney, testified... that prior to the petitioner's trial he was aware of the favorable treatment Brown was receiving (Citations omitted by me)
There is a lot going on here so let me be brief. First, the magistrate cites unfavorably the length of time it took for Wallace to make his claim -- 14 years -- without acknowledging that Wallace's attorney was to blame for that delay by failing to appeal the original verdict. Then, the magistrate denies Wallace relief on the ground that this lawyer was aware of Brown's special treatment at the time of trial. This is the same lawyer, mind you, who in addition to not appealing his client's murder conviction also failed to recuse himself from representing all four co-defendants at the start of the trial. In the magistrate's revisionist history, under applicable legal standards, this lawyer, of all lawyers, is presumed to be both diligent and competent.
Here from the magistrate's "Report" is another example of this sort of warped reasoning countenanced by current federal review standards:
Petitioner has not carried his burden to establish that evidence [of witness Brown's deal] was suppressed.... Warden Henderson emphatically denied that an agreement had been struck with Brown. Then... he testified that nothing was promised to Brown initially, other than protection. Warden Henderson testified that sometime after that... he told Brown he would support a pardon application. Later, Warden Henderson agreed with defense counsel that promises were made before Brown testified. Obviously, this testimony was inconsistent.
Even assuming, without deciding, that the petitioner has established that the prosecution suppressed evidence that Warden Henderson promised Brown help with a pardon in exchange for his testimony against the petitioner, there is no likelihood of a different result. Brown's testimony was consistent with Jackson's testimony, the co-defendant who testified on behalf of the State against the petitioner. Moreover, Brown was a neutral witness.
See what's happening here? Even though the warden ultimately conceded under oath that there was a prior deal with Brown, and even though logic and common sense tell us that such a deal existed, the magistrate instead concludes that this evidence is "inconsistent." Then he labels Brown, the inmate who first was a suspect in the murder and who later had cigarettes delivered to him by prison guards, to be a "neutral witness." This is not a searing search for truth and justice. This is not a meaningful review of a trial record. It is instead a post-hoc rationalization of a dubious status quo.
Terminally ill, Wallace finally has been removed from solitary confinement. There have been calls from public officials and others for his "compassionate release" from prison but state officials are adamant in rejecting such requests. They say that Wallace's life sentence has always meant that he would die in prison, that elderly prisoners die regularly in confinement as part of their sentences, and that the inmate is entitled to no special medical treatment. So there he sits, a sick old man who spent four decades in solitary confinement for a crime he contends he did not commit, a prisoner running out of time to get any vindication from our courts of law.
When Herman Wallace dies, his case will die with him. And that will be a shame not just for him but for anyone who still believes that our criminal trials should from time to time be more than mere tests of evidence -- that they should strive, especially when a man's life or liberty are on the line, to find the truth of the matter. After Wallace's death, none of us will ever know what happened inside that prison in May 1972 -- what promises were made, what truths were hidden -- because no one other than Wallace has ever had any incentive to care about what happened that day. That's a failure of our justice system; a failure both in concept and execution.
Today, Judge Jackson, the federal trial judge, is likely the last judge who will ever have the job of reviewing Wallace's case. He can reject Magistrate Riedlinger's "Report," he can embrace it, or he can come down somewhere in between. Judge Jackson, an appointee of President Barack Obama, is a relatively new judge and this high-profile case presents the first big test of his young career on the bench. Win or lose, Wallace's legacy is secure -- he's always going to be the guy who spent 40 years in solitary after a sham trial. But how this judge handles this case now surely will say a great deal about what his legacy is likely to be -- and whether our justice systems will be capable than they have been of acknowledging and then fixing even their most grievous mistakes.