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In Defense of Siddique Abdullah
Hasan  
By Staughton Lynd, Prisonersolidarity.org
Oct. 10, 2006
I.
Introduction
Five men have been condemned to death for their alleged activities
during the 11-day uprising at the Southern Ohio Correctional Facility
in April 1993. I believe that these men were selected for prosecution
because they were leaders and spokespersons for the other prisoners.
The five death-sentenced men are at different stages of the appeal
procedure. James Were a.k.a. Namir Abdul Mateen had a second trial
because his claims of mental incompetence and retardation were inadequately
addressed in his first trial. He is directly appealing in state
court a second conviction and death sentence. George Skatzes is
at a later stage of state proceedings known as post-conviction review.
The Court of Appeals took seven years to affirm his conviction and
sentence on direct appeal. His petition for post-conviction review
has been pending for three years.
The other three convicted men -- Keith Lamar, Jason Robb, and Siddique
Abdullah Hasan f.k.a. Carlos Sanders -- have reached habeas corpus
proceedings in federal court. Keith and Jason are in the early stages
of obtaining access to additional evidence, a judicial process known
as "discovery." The magistrate considering Hasan's petition
for habeas corpus recommended on August 14 that his petition be
denied without further opportunity for discovery or an evidentiary
hearing. This decision puts Hasan at the head of the line of the
prisoners awaiting execution for Lucasville-related convictions.
Objections to the Magistrate's Recommendations must be filed in
the United States District Court by October 14. Hasan's lawyers
have asked me to prepare an "amicus curiae" or friend
of the court brief. What I present tonight is the gist of what will
be in that brief [1].
Briefly, I shall argue that Hasan deserves further discovery and
an evidentiary hearing concerning two matters. First, there is overwhelming
evidence that Officer Vallandingham was killed by Anthony Lavelle
and two other members of a gang headed by Lavelle, the Black Gangster
Disciples, not by Hasan and other Muslims. This evidence should
provide a gateway to additional fact-finding. Second, the only
evidence connecting Hasan to Officer Vallandingham's murder is testimony
by a prisoner named Kenneth Law that the prosecution knew to be
false when Law testified and that Law has since recanted. Discovery
is urgently required to test the tentative conclusion that the prosecutor
sponsored perjury.
II.
The Factual Findings Of The Ohio State Courts Are Unworthy Of Respect
[2]
The
Magistrate's Recommendations (hereinafter, "the Recommendations")
recite verbatim the factual findings of the Ohio Supreme Court.
Recommendations at 7-10, quoting State v. Sanders (2001),
92 Ohio St.3d 245, 245-247 [3].
I am an historian as well as a lawyer. In my book
about the Lucasville events I have set out the troubling manner
in which Ohio state courts determine the alleged facts in a capital
case. The jury makes no findings of fact. Yet when a case reaches
the state Supreme Court, the Court typically presents an elaborate
factual narrative at the beginning of its opinion. There are no
citations to the record in these factual narratives. The Justices
were not present during the defendant's trial, could not observe
the demeanor of witnesses, and thus had little basis for evaluating
witnesses' credibility. How did the Court decide who to believe?
The Court does not explain how it weighed conflicting evidence in
reaching its factual determinations.
It is especially troubling that in so many of its determinations
the Supreme Court relies on the testimony of a single witness. Graduate
students in history and aspiring journalists are taught never to
rely on information from a single source. In the Lucasville Five
cases, the Court repeatedly relied on single witnesses. Let me give
two examples from Hasan's trial.
There was a meeting between Arthur Tate, warden of the Southern
Ohio Correctional Facility (SOCF) in Lucasville, and Muslim prisoners
on April 5, 1993. The meeting concerned the Warden's plan to conduct
TB tests by injection under the skin, to which the Muslims objected
because the substance to be injected contained phenol, a form of
alcohol.
The Supreme Court determined that Hasan said: "You do what
you have to and we'll do what we have to do." Recommendations
at 7. This determination was based on the testimony of Warden Tate:
none of the other prison officials present at the meeting were asked
to corroborate his testimony. During cross-examination, the Warden
was confronted with evidence from his deposition testimony in another
proceeding. Tate conceded that he had said it "very well may
have" been another Muslim prisoner, Leroy Elmore, rather than
Hasan, who said that if someone were to attempt to force him to
submit to a test he would resist. State v. Sanders, Transcript
(hereinafter, "Tr.") at 1305. Tate did not deny that he
also said at the deposition that he did not recall Sanders (Hasan)
giving him that same impression. Id.
It is troubling that the Court credits the testimony of the prison
warden, which, if it was true, could easily have been corroborated,
and which was called into question by the warden himself in another
proceeding. It is far more troubling when the Court credits testimony
of single witnesses from a class of witnesses -- prisoner informants
-- whose testimony is inherently unreliable and should have been
considered suspect [4].
For example, the Supreme Court determined that on "the night
of April 14, around 9:00 or 10:00 p.m.," prisoner informant
Miles Hogan heard George Skatzes, Stanley Cummings and Hasan discuss
killing a guard. This entire patch of testimony should have been
called into question by the fact that according to the State of
Ohio's own Negotiation Tape #5 [5], Skatzes
was negotiating on the telephone with prison representative Dave
Burchett from 8:23 to 10:50 p.m. Furthermore, Negotiation Tape #5
ends with an agreement between Burchett and Skatzes that two hostage
officers would be released in return for an opportunity for a prisoner
representative to address the public by radio. It is manifestly
unreasonable to suppose that Skatzes, painfully hammering out this
understanding with Burchett, was simultaneously insisting (during
a pause in the telephone negotiations?) on the necessity to kill
a guard.[6] It is equally unreasonable to
suppose that three leaders of the rebellion would have held the
conversation about which Hogan testified within earshot of Hogan
and several other alleged prisoner snitches locked in L-6. See Tr.
at 2085.
III. The Supreme Court Unreasonably Approved The Decisions Of
The Trial Court Denying Hasan The Opportunity To Make A Record As
To The Causes Of The Riot
The
Supreme Court determined and the Magistrate adopts without comment
the conclusion that Hasan "planned and led the takeover."
Recommendations at 7-8. This supposed factual finding is consistent
with the prosecution's repeated emphasis that this was Hasan's riot,
undertaken to satisfy Hasan's ego, and that once the uprising was
underway Hasan "reigned supreme . . . at all of these meetings."
See Prosecutor's Opening Statement, Tr. at 1153-1154, 1180, 1191-1192,
1206; Prosecutor's Closing Statement, Tr. at 5052-5054. The trial
judge assisted prosecutors in this strategy by three times instructing
the jury that they could link Hasan with the misconduct of other
prisoners by means of what he called "the Saran Wrap of complicity."
Tr. at 5225, 5227, 5232.
One might have hoped that somewhere in the approximately twenty-five
thousand pages of trial transcripts relating to the Lucasville Five,
defendants would have been allowed to offer some evidence as to
why the April 1993 disturbance occurred. Even in a homicide arising
from a barroom brawl, a criminal defendant is allowed to present
evidence of provocation. This is especcially so if the defendant
is convicted of murder and the trial reaches the second stage when
the jury is asked to weigh aggravating and mitigating factors, and
to make a recommendation as to whether death is an appropriate penalty.
Hasan was not permitted to present evidence as to why the uprising
occurred in either the guilt or sentencing phases of his trial.
After Warden Tate testified, Hasan's counsel tried to cross-examine
the warden about prison conditions that caused the rebellion. The
trial court barred the question, ruling: "This is a murder
case. It has nothing to do with a riot, except that it happened
in a prison at the time of the riot." Tr. at 1398-1400, 1414.
In the sentencing phase of Hasan's trial, the defense called as
its first witness Joseph R. Rowan, an expert on prisons who had
testified as an expert in about 350 lawsuits. Tr. at 5309. The judge
asked the witness what he was going to say. Mr. Rowan replied that
he would testify that the uprising "could have been easily
prevented" had Warden Tate followed the advice of Deputy Warden
David See. The judge excluded the testimony, saying:
He's just going to criticize the administrator of prisons, and
riots are not created by the prison. Riots are created by the inmates.
Now I said before in this trial, it is not going to be a trial of
a riot. What this is is a murder that happened to happen in a prison
during a riot.
Tr.
at 5332.
Even
so, evidence of how the uprising began seeped into the proceedings
during the direct examination of prosecution witnesses. Muslim informant
and prosecution witness Reginald Williams testified that there had
been discussion of the impending TB test among Muslim prisoners
on Saturday, April 10.
Q. What was Hasan's advice in regards to the tuberculosis testing?
What was he telling or advising his fellow Muslims to follow him
to do?
A. He only advised us of what he was advised from our scholars in
South Africa, which was that the tuberculosis test was prohibited
for us to take.
Q. And did he tell you about any actions that they would take if
these tests were attempted to be administered to you?
A. At that time?
Q. Yes.
A. He just said we would stand strong. He didn't make any allegations
at that time, not that I recall, to no particular actions that we
would take . . . .
Tr. at 2111-2112.
Even the next afternoon, Sunday, April 11, the "takeover"
was envisioned as a means of protecting Muslim prisoners from forcible
injection by officers the next day. A number of Muslims met on the
recreation yard in the early afternoon, according to Williams. After
a 5-10 minute prayer there was a discussion.
Q. And what was the discussion about?
A. The discussion was about the administration was going to lock
down the institution Monday . . . . Arthur Tate had basically designated
his officers to come around and force us to take this tuberculosis
test.
Q. And what did Hasan say you guys were going to do in response
to that?
A. . . . I feel like he was doing his obligation as a Muslim was
to protect us, you know, and his obligations were to do everything
that he can to assure that the community was safe.
And being down in S.O.C.F., guards are known for excessive force
on inmates. So we decided -- Hasan decided that we were going to
basically barricade ourselves in L-6 until we can get someone from
Columbus to discuss this -- us being forced to take this test without
them having no consideration of our religious belief.
Tr. at 2128-2129.
On cross-examination Williams confirmed this explanation:
Q. You're saying the plan was to have a brief barricade in order
to bring attention to the fact that religious beliefs were being
trounced upon?
A. Exactly.
Tr.
at 2215.[7]
Thus the action contemplated by Hasan and fellow Muslims was characterized
even by this prosecution witness as brief, essentially defensive,
and intended to catch the attention of prison administrators in
Columbus who had authority to overrule Warden Tate. Surely, had
the defense been permitted to supplement this evidence with the
testimony of Mr. Rowan and others, it might have affected at least
the jury's decision to recommend a death sentence.
IV. Inexplicably, The Magistrate's Recommendation Ignores The
Overwhelming Evidence That Anthony Lavelle, Not Hasan, Killed Officer
Vallandingham
The
most serious inadequacies in the Magistrate's Recommendations arise
not from mechanically repeating the factual findings of the Ohio
Supreme Court, but from rejecting significant new evidence of Hasan's
actual innocence.
In its evaluation of Hasan's Eighth Ground for Relief, the Recommendations
state that: 1. All this new evidence was originally presented in
Hasan's petition for post-conviction relief; 2. The evidence was
"uncross-examined"; 3. None of the affidavits have been
authenticated. Recommendations at 42.
Insofar as the new evidence concerns Anthony Lavelle's role as the
actual killer of Officer Vallandingham, it derives largely from
my book.
Therein I based what I said on evidence presented under oath and
subject to cross-examination in the various Lucasville trials, in
each case citing the relevant page or pages of the trial transcript.
If the Magistrate's reason for rejecting this evidence has to do
with the form in which the evidence was brought to his attention,
I have all the transcripts and would be happy to file with the Court
the complete examination and cross-examination of each of the relevant
witnesses, should that be desired.
Hasan's purported responsibility for Officer Vallandingham's death
derives from evidence concerning two episodes: a meeting of leaders
of the uprising on the morning of April 15, and the hands-on strangulation
of the officer at about 10:30 later that morning.
The Ohio Supreme Court determined that a meeting of gang leaders
was held on Thursday morning, April 15, ending approximately two
hours before Officer Vallandingham's murder. The FBI had installed
recording devices under the occupied cell block, and there exists
a tape recording (Tunnel Tape 61) of a meeting alleged to have occurred
between 8 and 9 a.m. Hasan did not chair the meeting, and Hasan
apparently did not speak at the meeting.[8]
Moreover, Tunnel Tape 61 was neither played nor made part of the
record in State v. Sanders, see Recommendations at 48-49,
and the jury was obliged to infer what happened at this meeting
from the testimony of prisoner informants who claimed to have been
present.
The most important of these informants was Anthony Lavelle, the
leader of the Black Gangster Disciples (BGD), one of the three gangs
or groups involved in the uprising. The Recommendations fail to
confront the fact that Lavelle testified in State v. Sanders
that there was no decision to kill a guard at the April 15 meeting
(supposing such a meeting to have occurred) and another meeting
was to be held before any such decision became final. At the
end of the meeting, Lavelle testified:
We hadn't made a clear decision. I had told them, you know, that
we should decide on what we're going to do but we need to come back
after the deadline and make sure that this is what we want to do.
So I said, you know, after we give them a deadline, if they don't
meet it we should come back together and decide, you know, whether
we want to do this or not.
Tr.
at 3649-3650.
At another point, Lavelle stated again that at the meeting on the
morning of April 15 he "suggested after the deadline has been
established and it's passed that we meet back up later and decide
on whether this is what we want to do, be sure that this is what
we want to do." The following exchange ensued:
Q. So then the agreement was that he would not be killed without
another meeting?
A. That's correct. . . . I state, let's meet back up here later
at another time, after we give them this 2:30, 3:30, whatever, and
we decide, okay, they haven't met our demands, they had until such
and such a time, they haven't met it, are we going to do it. Yes
or no.
Everybody said that's a good idea.
Tr.
at 3786-3787. [9]
In
the absence of evidence incriminating Hasan in Tunnel Tape 61, the
question of whether Hasan had any connection with the death
of Officer Vallandingham comes down to the circumstances surrounding
the hands-on murder of the officer.
Hasan has presented substantial evidence that Lavelle himself, in
a rogue action later on the morning of April 15, caused the hostage
officer to be killed. Recommendations at 42-43 characterize this
evidence as "unreliable." Recommendations at 44 assert
that the proffered evidence concerns only "inconsistencies
in the relevant witnesses' testimonies in the various Lucasville
cases" and that most of the inconsistencies are "quite
insignificant." The Magistrate's characterizations of the evidence
Hasan seeks to present may be correct as to the form in which
the evidence has thus far been presented. They misstate the substance
of this critical evidence, which goes squarely to actual innocence.
The following witnesses offered evidence under oath and subject
to cross-examination pointing to Anthony Lavelle, not Hasan, as
the murderer of Officer Robert Vallandingham. [10]
Brian Eskridge and Aaron Jefferson were members of the Black
Gangster Disciples, the gang Lavelle led. Both Eskridge and Jefferson
testified that on April 14 Lavelle tried to enlist them in a plan
to kill a guard, and that Lavelle ordered Eskridge to be beaten
when Eskridge refused. State v. Were II, Tr. at 2043-2048,
2070-2072.
During the uprising, Muslim prisoner Sean Davis slept in
the living area controlled by Lavelle and the BGD, pod L-1. Davis
woke up about 7 a.m. on April 15 and heard Lavelle tell prisoner
Stacey Gordon that "he was going to take care of that business."
Gordon responded, "[Y]ou go ahead, take care of it . . . .
I will come clean it up afterward." State v. Were I,
Tr. at 1640-1644.
Prisoner Willie Johnson also celled in L-1 during the riot.
Around 9 a.m. on April 15 he heard Lavelle tell BGD member Johnny
Long to "put on your mask," and Lavelle, Long, and a third
man who was already masked, left the pod. State v. Robb,
Tr. at 4651; State v. Were I, Tr. at 1762-1764. Later the
three men returned to L-1. Lavelle "was like in a frenzy,"
saying "see how they like me now, see if they think we bullshitting
now." State v. Robb, Tr. at 4653; State v. Were I,
Tr. at 1764.
Prisoners Tyree Parker, Eddie Moss and Sterling Barnes testified
that on the morning of April 15 each observed Lavelle and two other
prisoners knock on the L-6 door and go in. Soon after, Reggie Williams
and three other prisoners came out of L-6 into the corridor. After
a few minutes Williams said, "[T]hey should be finished,"
and Lavelle and his two associates "masked up from head to
toe" (Parker) came out.
State v. Robb, Tr. at 4503-4512 (Moss); State v. Were
I, Tr. at 1686-1688 (Parker) and 1865-1868 (Barnes).
Later that day, Willie Johnson and Eddie Moss testified,
Were went to L-1 and knocked Lavelle to the ground. Johnson recalled
Were saying, "Lavelle, you going to be held responsibility
[sic] for what you caused." Moss remembered Were telling Lavelle,
"[Y]ou gonna be responsible for that call you just made, man.
You didn't have no business making that call."
State v. Robb, Tr. at 4525-4528 and 4660-4662; State v.
Were I, Tr. at 1783-1784 and 1824-1825.
Prisoner Antoine Odom, who celled near Lavelle when Lavelle
decided to turn State's evidence, testified about Lavelle's motivation.
Q. Tell us what he said.
A. He said the prosecutor was sweating him and he had to do what
he had to do -- he was gonna cop out cause the prosecutor was sweating
him, trying to hit him with a murder charge. . . .
Q. Did he say anything about the story he was going to tell the
prosecutor?
A. . . . He said he was going to tell them what they wanted to hear.
State v. Robb, Tr. at 4853-4855.
It
may be objected that the eight witnesses whose testimony has just
been cited[11] were all prisoners. But
so were the informants on whose much more inconsistent stories the
prosecution relied to convict Hasan and sentence him to death. Hasan's
defense should be permitted further discovery concerning all contacts
between the prosecution and these eight men, and all statements
they may have made during the State's investigation.
V. The Single Witness To Hasan's Alleged Role In The Hands-On
Murder Of Officer Vallandingham Has Recanted And Discovery As To
The Truth Of His Recantation Should Be Allowed
Several
paragraphs of the Supreme Court's statement of facts describe the
hands-on murder of Officer Vallandingham. At about 10 a.m. on Thursday
April 15, the Court asserts, Hasan and co-defendant James Were were
in L-6, where hostage officer Robert Vallandingham was confined.
Hasan told Were to wait several minutes, and if he had heard nothing
from Hasan to proceed with his "business." Hasan then
left L-6. About five minutes later, it is alleged, prisoners Alvin
Jones and Darnell Alexander brought Officer Vallandingham to the
downstairs shower and there, directed by Were, killed him. Recommendations
at 9.
These assertions derive from the uncorroborated testimony of a single
prisoner informant, Kenneth Law, who has since repudiated his
testimony in two extremely detailed and persuasive affidavits.
Law repudiated his testimony in affidavits of March 9, 2000 and
September 19, 2003. He stated in 2000:
I, Kenneth Law, am making this confession voluntarily to clear
my conscience of the injustice I was forced to play a part in because
of fear for my life being sacrificed for a crime I did not do nor
had knowledge of.
This Affidavit is to expose the scandal executed by the Ohio State
patrol and the prosecutors involved in the S.O.C.F. riot investigation.
Before my first interview with the Ohio State Patrol myself, Sherman
Sims and another inmate, whose name I will withhold [Stacey Gordon],
talked regularly about regaining our freedom. We knew that information
in the Vallandingham murder was the key to the door . . . .
The
story that Gordon, Law, and Sims concocted in 1994 was the scenario
determined to be fact by the Ohio Supreme Court in State v. Sanders.
However, Sims and Law experienced what Law describes in his 2000
affidavit as a "falling out." When Sims was indicted for
assault early in 1994 he changed his telling of the story in one
important detail: he said that it was not Jones and Alexander who
murdered the officer, but Jones and Law.
Law thereupon asked to see the Highway Patrol. What happened next
is recounted by Law's attorneys:
On April 27, 1994, the Highway Patrol, without prior notice to Mr.
Law, had him surreptitiously removed from the Mansfield prison and
brought to the Highway Patrol station. When Mr. Law left the prison,
he was told he was being taken to a doctor's appointment. Trooper
McGough and Trooper Fleming met Kenneth Law at the Mansfield Highway
Patrol station. . . . [Mr. Law] was told he was to be interrogated
by the Highway Patrol regarding the events of the riot and C.O.
Vallandingham's death.
The
interrogation began between 9 and 10 a.m. There was conflicting
testimony as to whether Law was given Miranda warnings. At 1:22
p.m., approximately four hours later, the officers turned on the
tape recorder.
"Memorandum in Support of Motion to Suppress," State
v. Law, Case No. B9409511 (Hamilton County), at 3-7.
On the tape, Law recounted the original story he, Gordon and Sims
had fabricated. Case No. 900-1500-93, Tape A-189, Interview 1245
with Troopers R. T. McGough and J. W. Fleming, April 27, 1994. The
authorities continued to talk with both Sims and Law. Opening Statement
of Prosecutor Breyer, State v. Law, Tr. at 947-953. Choosing
to believe Sims rather than Law, they indicted Law for the kidnapping
and aggravated murder of Officer Vallandingham.
In opening and closing statements, prosecutors told the jury that
Law was a hands-on murderer of Officer Vallandingham.
[S]hortly after 10:00 in the morning, Hasan, Carlos Sanders, the
leader of the Muslims and the leader of this riot, told a group
of Muslims in L6, and it was a group which included this gentleman,
Kenneth Law, if you do not have a phone call from me, or if we do
not get a phone call in the next ten minutes, then you, Kenneth
Law, you, James Were, you, Alvin Jones, take care of business.
Within minutes Carlos Sanders, left the block, and within minutes
after that James Were turned to Kenneth Law and Alvin Jones and
told them to proceed. And Kenneth Law and Alvin Jones took that
cord and wrapped it around the neck with one man on one end, and
one on the other, and they yanked on that cord, and they put a bar
bell over his neck until he was dead.
Prosecutor's
Opening Statement, State v. Law, Tr. at 937 (emphasis
added).
Kenneth
Law is here before you today because the State of Ohio believed
it had sufficient evidence to prove to you beyond a reasonable doubt
that he was the hands-on killer of Robert Vallandingham on April
15, 1993. . . .
Law . . . was the hands-on killer that was doing as instructed .
. . .
Ladies and gentlemen, the credible, believable evidence that
you have heard is that Kenneth Law . . . on April 15th, acting at
the direction of first Sanders, Hasan, down through Were, that he
was given the instructions he was to kill Officer Vallandingham
. . . .
Prosecutor's
Closing Statement, Tr. at l521, 1613, 1619 (emphasis added).
In
August 1995, the jury convicted Law of kidnapping the officer
but hung on the more serious murder charge. In his second
affidavit in 2003, Law recounted the whole story including what
happened after the jury hung.
During the Lucasville riot of 1993, I slept in the cell belonging
to James Were in block L-1. Although I was a mid-level Muslim, L-1
was the block that Anthony Lavelle and his Black Gangster Disciples
controlled during the riot, and I overheard many of their conversations.
On the morning of April 15, 1993, I was in L-1 and heard Anthony
Lavelle, Aaron Jefferson, and Tim Williams talking about killing
a guard. Lavelle left L-1, along with two others whom I recognized
to be Gangster Disciples, despite their masks.
A few minutes later, I also left L-1 and went toward L-6. As I approached
the door of L-6, the two masked Disciples came out. I entered L-6
and saw Lavelle inside. I looked into the shower and saw Officer
Vallandingham dead. It was very clear to me what had just happened:
Lavelle and his associates had killed the guard. . . .
After the riot, prosecutors, including Brower, and troopers, including
McGough, placed tremendous pressure on me . . . . At one point,
I revealed to them that Lavelle had killed Vallandingham. The prosecutor
told me that my story would have to change, because Lavelle was
a State witness.
. . . I refused to cooperate any further. I went to trial for the
Vallandingham murder and the jury hung. The prosecutors increased
the pressure on me, and even my own lawyer pressed me to cooperate
and avoid a second trial. They made it clear that I would die for
something I had not done unless I said what they wanted me to say.
I eventually broke, and gave false testimony.
To this day, I regret having lied in my statement and on the stand.
I do not want to go to the grave with this on my conscience. I am
willing and able to testify to the foregoing, if called.
The testimony the authorities forced Law to give against
Were and Hasan in 1995-1996 was exactly the same story that the
authorities had determined to be false a year and a half earlier,
so much so that they had put Law on trial for his life. The
prosecutor told Hasan's jury that they should not doubt Law's testimony
because Law was simply repeating the statement he made to the authorities
in April 1994.
Q. [I]n return for you pleading guilty to conspiracy to commit
murder and receiving a sentence of 7 to 25 concurrent, what were
you supposed to do for the State of Ohio?
A. Testify against three of the . . . alleged co-defendants in my
case.
Q. Which co-defendants were they?
A. Siddique Hasan, James Were . . . and Alvin Jones.
Q. And you testified in the case of the State of Ohio versus James
Were?
A. That's correct.
Q. And you're here today to testify in the case of State of Ohio
versus Hasan, is that correct?
A. Yes.
Q. Now was there an agreement in regards to what you were supposed
to testify to?
A. The truth of the statement that I originally made.
Q. You made a statement to the State Patrol at some time prior,
is that correct?
A. That is correct.
Q. And you're supposed to tell us basically what you told us in
that statement, is that correct?
A. That's the truth.
Q. And what's to happen if you don't testify consistently to the
statements that you've already made to the State Patrol?
A. The original charge can be reinstated with death specifications.
Tr.
at 2301-2302 (emphasis added). What the prosecutor failed to tell
the jury is that the State considered this statement to be false.
Law's testimony at the Were and Hasan trials must be rejected not
only because he himself has recanted it, but also because, first,
it is contradicted by the medical examiner's testimony, and second,
the State's chief investigator stated shortly before Hasan's trial
that it continued to be the State's position that Law's statement
of April 1994 was, in part, not true.
Law testified in State v. Sanders that he saw prisoners Alvin
Jones and Darnell Alexander place
a bar, a weight bar over [Officer Vallandingham's] neck and
both of them stood on both ends of it. Jones held onto the bars
to balance himself on the bar, and Alexander was in the doorway
and was holding onto the doorway standing on it, pressing down on
the officer's neck.
Tr.
at 2354. Law elaborated on cross examination.
Q.
Now you indicated that they stood on that bar to sort of press it
down on the front of his throat?
A. Yes, something like a seesaw manner, both of them pressing down
and standing on him.
Tr. at 2425.
The
autopsy on Officer Vallandingham was performed by Dr. Patrick Fardal,
chief forensic pathologist and deputy coroner for Franklin County,
Ohio. Dr. Fardal testified that the cause of death was ligature
strangulation, that the larynx had not been crushed, that there
was no evidence that a bar had been used, Tr. at 4166-4167,
and that he could say with a reasonable degree of scientific certainty
that there had been no rocking back and forth on Officer Vallandingham's
neck by two men standing on a weight bar, Tr. at 4173-4176.
[12]
Not only did the medical examiner's evidence contradict Law's testimony
but Sergeant Howard Hudson, the State's chief investigator, testified
just a few weeks before Hasan's trial that Law's story was not true.
Alvin Jones, one of the two men named by Law as hands-on murderers
of Officer Vallandingham, was not criminally indicted but was administratively
tried by a Rules Infraction Board in January 1996. A summary of
Sergeant Howard Hudson's testimony was reported by Andrea Carroll,
Secretary of the Rules Infraction Board, and certified as true and
accurate by Sergeant Hudson. Hudson stated in part:
Law failed polygraph. Law took himself out of the act [of murdering
Officer Vallandingham] & replaced himself with inmate Darnell
Alexander.
Testimony
at Rules Infraction Board, Jan. 18, 1996.
Thus when the prosecution presented Law as a witness in the subsequent
State v. Sanders trial to testify as he had at the Rules
Infraction Board hearing for Alvin Jones, that Jones and Alexander
had killed Officer Vallandingham and that the killers rocked back
and forth on a weight bar placed on Vallandingham's neck, the prosecution
presented evidence that it knew or should have known to be false.
VI. Under The Law Announced By The United States Supreme Court
In House v. Bell And Napue v. Illinois, Hasan Should Be Permitted
Further Discovery And An Evidentiary Hearing
In
House v. Bell, -- U.S. -- , 126 S.Ct. 2064 (2006), the United
States Supreme Court held that compelling evidence of actual innocence
may be presented to a federal court at any procedural stage prior
to execution.
In Napue v. Illinois, 360 U.S. 264, 269-271 (1959), the Supreme
Court held:
[I]t is established that a conviction obtained through false
evidence, known to be such by representatives of the State, must
fall under the Fourteenth Amendment. . . . The same result obtains
when the State, although not soliciting false evidence, allows it
go uncorrected when it appears.
This
principle remains rock solid in the Sixth Circuit Court of Appeals.
In Wesener v. Straub, 110 Fed. Appx. 614, 625 (6th Cir. 2004),
that Court reiterated:
The knowing use of perjured testimony, including the failure
to correct false 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. [Citations omitted.] This
claims encompasses use of testimony, whether elicited or left uncorrected,
that the prosecutor knows or should know is false.
See to the same effect Stumpf v. Mitchell, 367 F.3d 594,
619 (6th Cir. 2004), Boggs, Chief J., dissenting ("Knowingly
putting on false evidence is prosecutorial misconduct that violates
the due process clause").
Applying this clearly established law to the facts elaborated above,
prosecutors in State v. Sanders appear to have violated Napue
v. Illinois in presenting evidence by Kenneth Law that they
believed to be false. At the very least, counsel for Hasan should
be permitted further discovery. Should the federal courts conclude
that Napue was violated, both Hasan's conviction and Hasan's death
sentence would have to be reversed. All documentation concerning
all contacts between Kenneth Law and the authorities should be made
available.
The Magistrate's Recommendations should be denied, and Hasan's habeas
petition should be remanded to the Magistrate for further discovery
and an evidentiary hearing.
Footnotes
1 The Lucasville Five were convicted of
kidnapping as well as murder. Under Ohio law, it is apparently "kidnapping"
to bring blankets, food, and medicine to a hostage correctional
officer, and you can be sentenced for up to 25 years in prison for
each alleged kidnapping. I am going to concentrate on Hasan's murder
conviction because it resulted in a death sentence.
2 The Antiterrorism and Effective Death
Penalty Act provides that habeas relief shall not be granted on
a claim unless "the adjudication of the claim . . . resulted
in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. Section 2254(d)(2) (emphasis added).
The Act also provides that a State court's determination of a factual
issue shall be presumed to be correct unless the petitioner succeeds
in "rebutting the presumption of correctness by clear and
convincing evidence." 28 U.S.C. Section 2254(e)(1) (emphasis
added).
3 The Recommendation inserts an elipsis
prior to the last paragraph of its factual recitation. The elipsis
corresponds to the paragraph in the decision of the Ohio Supreme
Court concerning the murder of Bruce Harris. The jury acquitted
Hasan of this charge. State v. Sanders, 92 Ohio St.3d at
248.
4 Ohio Revised Code Section 2923.03(D) states:
"[T]he admitted or claimed complicity of a witness may affect
his credibility and make his testimony subject to grave suspicion,
and require that it be weighed with great caution. . . ." See
also Dodd v. State, 993 P.2d 778, 783 (Okla. 2000) ("Courts
should be exceedingly leary of jailhouse informants, especially
if there is a hint that the informant received some sort of a benefit
for his or her testimony"); McNeal v. Mississippi, 551
S.2d 151 (Miss. 1989) ("The testimony of jailhouse informants,
or 'snitches,' is becoming an increasing problem").
5 State v. Skatzes, Ex. 296A.
6 The day ended for the exhausted negotiators
like the end of an episode of "The Waltons":
Skatzes: All right, Dave.
Burchett: All right. Thanks, George.
Skatzes: All right. Say a prayer for us.
Burchett: I sure will.
Skatzes: God bless you.
Burchett: You too.
State v. Skatzes, Exhibit 296A at 32. At Skatzes' trial,
chief State investigator Howard Hudson conceded that Skatzes and
Burchett ended April 14 "on the verge" of the release
of two hostages and in "elevated spirits." State v.
Skatzes, Tr. at 2158.
7 Seven years later, at the second trial
of fellow Muslim Namir Abdul Mateen a.k.a. James Were, Williams
testified again that the Muslims' plan was to occupy a single living
area or "pod," L-6, so as "to get someone from central
office to come down and address our concerns." State v.
Were II, Tr. at 1645.
8 According to the tape itself and all versions
of the transcript prepared from the tape, the meeting was chaired
by Stanley Cummings. As to Hasan's participation, at James Were's
second trial Sergeant Hudson was asked to identify the prisoners
whose voices could be heard on Tunnel Tape 61. He named Were, Anthony
Lavelle, Jason Robb, Stanley Cumminds, Rodger Snodgrass, George
Skatzes, Cecil Allen, and Johnny Roper. "I believe that's everybody
that is on Tape Number 61," Hudson said. State v. Were II,
Tr. at 1370-1373.
9 Lavelle testified to the same effect in
State v. Were I, Tr. at 1238 ("Q. When you left the
meeting, was that the understanding, that a guard was going to be
killed? A. No. . . [W]e was going to meet up later on this afternoon
. . . and take the final vote"), and State v. Skatzes,
Tr. at 3909, 4066-4067, 4098-4099.
10 In addition, there are signed affidavits
by Wayne Flannigan, a member of the BGD ("Lavelle ..
. told AJ to kill a guard"); by Greg Durkin ("I
. . . saw Lavelle and the two masked inmates come out of L-6. Lavelle
was laughing. He later said that he had taken care of business");
and by the late Roy Donald ("Lavelle told me that Gordon
had given him the okay to kill a guard and that he took care of
his business"). See Lynd, Lucasville,
at 65, 68.
11 If one adds the three prisoners whose
affidavits are cited in n. 10 (Flannigan, Durkin and Donald), and
prisoner Kenneth Law, whose detailed affidavits are quoted below,
twelve (12) witnesses have presented under oath facts leading them
to believe that Anthony Lavelle was responsible for the murder of
Officer Vallandingham.
12 The prosecution knew that Law's testimony
about a weight bar would be contra-dicted by Dr. Fardal. Dr. Fardal
had previously testified, on direct examination, that Officer Vallandingham's
injuries were not consistent with a belief that an object such as
a weight bar had been placed on the officer's neck by men on either
side pushing or standing on the bar. State v. Skatzes, Tr.
at 4870-4871.
---
Staughton Lynd
1694 Timbers Court
Niles, OH 44446-3941
Salynd@aol.com
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