Hoping for Clemency – or a Miracle – or Both

If a prosecutor allows two clearly innocent men to be convicted of a murder neither committed, is that a praiseworthy event?

Felix Rodriquez and Russell Weinberger spent over 21 years in prison for crimes they did not commit. Convicted of murder, Rodriquez and Weinberger were released from prison in 2002 after another man confessed to the killing they were incarcerated for. Through the diligent efforts of the Philadelphia District Attorney’s Office, new evidence demonstrated their innocence and identified the true perpetrator of this crime, an inmate named Anthony Sylvanus.

 

In an unprecedented move for the organization, the PA Innocence Project is looking to the executive branch to remedy this incredible case of injustice. Constitutionally vested in the executive wing of our government, the pardoning power represents Rodriquez and Weinberger’s last resort for relief. In Pennsylvania, the governor shares the authority to grant pardons with an administrative body known as the Board of Pardons. The pardon is the most far-reaching clemency mechanism—it acts as an official nullification of a criminal conviction.When properly employed, pardons advance the causes of justice and serve to memorialize mistakes made in the criminal courts. The late Chief Justice William Rehnquist explained that the power to pardon is “deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice.” Herrera v. Collins, 506 U.S. 390, 412 (1993).

Rodriquez and Weinberger were convicted in Philadelphia in 1985 for the 1981 robbery and murder of a Kensington optometrist, Dr. Charles Langley. Dr. Langley was strangled to death with his own necktie and robbed of $123 and a wristwatch. No eyewitnesses were found and no physical evidence linked the men to the crime scene. Their convictions resulted from a phenomenon that has been identified as a leading cause of wrongful convictions: false confession. Both Rodriquez and Weinberger possessed vulnerabilities that experts say make false confessions more likely. The detective who interrogated them was not sensitive to the fact that Russell Weinberger had an IQ around 60 and that English was a second language for Felix Rodriquez.  Th?id=hn.608011762580786558&pid=15

Weinberger initially plead guilty to third-degree murder and was sentenced to 15 to 30 years in state prison. In exchange for this deal, he agreed to testify against Rodriquez. A jury convicted Rodriquez of second-degree murder and he was sentenced to life without parole. The two men maintained their innocence for the 21 years they spent behind bars. In 1997, Weinberger was up for parole but the board denied his release because he refused to accept responsibility for the Langley murder. Years before the Pennsylvania Innocence Project was born, Rodriquez wrote to Barry Scheck of the Innocence Project in New York asking for help.

He explained: “two men come forward and confess about the crime I doing time for.”

Anthony Sylvanus came to the attention of law enforcement when then Philadelphia Police Captain Alan Kurtz ran a fingerprint from a cold case through the Automated Fingerprint Identification System. It matched Sylvanus, who admitted his guilt and subsequently confessed to a string of murders of elderly folks in the Kensington area from 1981-1982—including Dr. Charles Langley.  Sylvanus was not charged with the Langley homicide but plead guilty to four other murders, all of which had been unsolved for three decades.

On September 20, 2002, Rodriquez and Weinberger were released from prison only after they plead nolo contendere and Judge Benjamin Lerner sentenced them to the time they had already served. Counsel for both Mr. Rodriquez and Mr. Weinberger lauded the District Attorney  for having done “the right thing,” in not objecting to the plea. That praise was given notwithstanding the fact that the DA allowed two blatantly innocent men to be convicted of a murder neither one committed.

Today, Rodriquez explains that he was tricked into confessing – that he didn’t understand that the papers he signed constituted an official statement.  Though the men were released without any opposition from the Commonwealth, to this day they have not been exonerated and neither received any kind of apology from the state.

Russell Weinberger passed away in 2011. PIP will be pursuing a posthumous pardon on his behalf.  Granting a pardon for Mr. Rodriquez would help to repair his life, which was shattered by this experience.

While the Pennsylvania Board of Pardons does not specifically include wrongful convictions as a ground for clemency, the pardoning power is not limited to mercy. This is not merely about compassion—it is about memorializing a miscarriage of justice and holding the justice system accountable. This country has long recognized the pardoning power as an acceptable check on the other branches of government, enabling the executive to act when necessary for the public interest. Because the men have exhausted their judicial remedies, a pardon is the only hope for clearing their names.

Waiting for Justice in Pittsburgh

This afternoon, in a Pittsburgh courtroom, Judge Joseph Williams will tell the world whether Greg Brown’s 17 year ordeal could be coming to an end. Two years ago, we presented evidence to the court that the federal government had withheld critical information that the jury never heard: that the only 2 witnesses to implicate Greg testified under the expectation of receiving thousands of dollars from the federal government. Convicted of setting a fire that was actually a tragic accident he had nothing to do with, Greg waits to learn his fate.

THE FIRE

On February 14, 1995, a fire broke out in the Brown and Buckner family home in Pittsburgh, Pennsylvania. While all of the family members got out safely, tragically three firefighters working to extinguish the fire died. A fire analyst went into the house after the fire was finally put out to conduct a “cause and origin” investigation – to find out how and where the fire started. Without conducting the true investigation of accidental causes mandated by the professional standards, the fire was declared “incendiary” and the work of “arson.”

A year later, 17 year-old Greg Brown was arrested and charged with intentionally setting the fire in his own home. His mother was charged as a co-conspirator. The motive was a minimal $15,000 renter’s insurance policy. Greg and his mother maintained their innocence from the very beginning: they had been at a food store getting supplies for a family function the next morning – they even still had the time-stamped receipt. They were not at the house, and no-one started the fire. Indeed, Greg and his mother always said the same thing: the heater had been giving them trouble. Maybe it was a gas leak.

But authorities had their conclusion: we lost three heroes. This was arson.

THE TRIAL

At his trial, 2 witnesses offered testimony to implicate Greg. The first, Keith Wright, was a neighbor who lived down the street from Greg’s home. He testified that he saw Greg standing outside his home staring at the smoke coming from the windows before the fire trucks arrived. This testimony was challenged by the witness’ mother who testified that she called her son to make sure he was safe and that he had been sleeping when she called. This directly challenged Greg’s testimony that he had been at the store. When asked whether he was getting anything for his testimony, he said no. When asked why he only came forward 10 months after the fire, he had no answer.

The second witness – a troubled 15 year-old boy from a dysfunctioinal home – testified that while at a juvenile placement with Greg months after the fire, Greg told him that he had set the fire. When asked whether he expected to receive any benefit for his testimony, the boy said no, and that “it’s the right thing to do.”

After closing arguments, a former neighbor of Greg’s family came to court and showed Greg’s lawyer a flier that had been circulated in the neighborhood 10 months after the fire. It was from the Bureau of Alcohol, Tobacco, and Firearms, and offered a reward of $15,000 to anyone who could provide information about who had set the fire. The flier was dated 2 days before Keith Wright first identified himself to authorities as having any information.

Greg’s lawyer – a former federal prosecutor himself – was stunned. To him, this was information the government was required to provide to him before trial under the constitutition. Had he known there was a reward out there, his entire case presentation would have been different.

Greg’s lawyer asked the judge to re-open the case to tell the jury about the reward and ask Keith Wright directly whether he knew about the reward offer and whether he expected to receive any of the money. The judge said no. Since Wright had already denied receiving any benefit for his testimony, the evidence was before the jury.

Greg’s mother was found not guilty, but Greg was convicted of arson and second-degree murder. He was sentenced to 2 mandatory life sentences without parole. He was 18 years old.

THE INNOCENCE INSTITUTE INVESTIGATES

In 2010, veteran journalist Bill Moushey of the since-closed Innocence Institute began looking into Greg’s case. He managed to obtain information from the Bureau of Alcohol, Tobacco, and Firearms about the investigation of the fire. What he found shocked him: both witnesses, despite their protestations to the contrary, had received thousands of dollars from the federal government a year after Greg’s conviction. The neighbor? He received $10,000 cash. The troubled boy? $5,000. Cash.

Moushey also contacted world-reknowned scientist Gerald Hurst, and asked him about the cause of the fire. Dr. Hurst reviewed all of the materials available and came to a stark conclusion: there was no evidence that the fire was started intentionally. Indeed, from the statements of other firefighters on the scene who saw a “steady blue flame” shooting across the basement of the house, it appeared that it was exactly what Greg’s family had said all along: the fire was accidental, not arson.

THE PENNSYLVANIA INNOCENCE PROJECT GETS INVOLVED

Moushey contacted the Pennsylvania Innocence Project, and we went to work. We were lucky enough to engage a pro bono attorney in Pittsburgh to help us out. Dave Fawcett was a prominent figure in the Pittsburgh legal and political communities. When he learned of the apparent injustice Greg suffered, he jumped right in. Dave located the neighbor who had received the $5,000 and learned that Wright had known about the reward before he testified, and that he had learned about it from the ATF agent in charge.

Even more alarming, the Project and an investigator located the boy who had testified against Greg. He willingly admitted not only that he was aware of the reward before he testified, but insisted that he expected to get $15,000, not $5,000, for his assistance. We also contacted his former girlfriend and 2 former juvenile probation officers who also confirmed the boy knew about the reward before trial. In fact, all three – who lived in different states and had never discussed the case – told us that the boy was “focused” on the reward, thinking getting the money would solve all his problems.

THE HEARING

In February and May, 2012, several witnesses testified before Judge Williams about their experiences with Greg’s trial. Keith Wright, now suffering from painful medical conditions that limit his ability to speak clearly, testified first. A few months later, the remainder of the witnesses took the stand.

  • The boy who received the $5,000, now a 32 year-old man,  told the court he knew about the reward, and he fully expectted to receive the money for having participated in Greg’s prosecution. In fact, he said that he wanted to back out but was put in a room with the firefighters’ families, who thanked him for his help. After enduring this pressure, he agreed to go through with the testimony.
  • One probation officer told the court that he spoke with the ATF agent many times, and that in their first conversation the agent told him that if the boy participated, he could get a reward of $15,000.
  • The other officer told the court the boy was so “focused” on the money he’d get for helping the government that he was not benefitting from his therapy.
  • The boy’s former girlfriend told the court of many conversations she had with the ATF agent, and about conversations she had with the boy about the money. She talked of specific plans he had for what he would do once he got the money, and that he would “say anything they wanted” to get it.

THE WAIT

The hearings closed in May, 2012, and final briefs were submitted in November, 2012. The wait for Greg and his family has been excrutiating. Finally, in January, we received an Order from the Court requiring Greg and his lawyers to be in court today for his ruling. Today we learn his fate. Stay tuned…

Eugene Gilyard Is HOME!!!

Gene and his dadLast Friday, after a whirlwind week, Eugene Gilyard came home to his family after over 15 years. The homecoming  was an emotional high point after years of battling to prove his innocence. On October 8, 2013, Judge Rose Marie DeFino-Nastasi granted Eugene’s petition and vacated his conviction. For the next month, Eugene and his team waited tensely to see whether the Philadelphia District Attorney’s Office would appeal the judge’s decision. The whole gang

On November 9, 2013, we learned that the DA did not appeal, and in fact was conducting independent investigations to determine whether they wanted to retry Eugene and his co-defendant, Lance Felder. While Judge DeFino-Nastasi wanted Eugene and Lance released immediately, given that they are both still facing murder charges, she accepted the DA’s request that they be released to house arrest. Just one week later, on Friday November 15, Eugene came home. Welcome home, Eugene!

Charlotte and GeneShaina and Gene

Eugene Gilyard, Part 5: Evidence is Closed – Finally

A few days before we returned to court, the District Attorney’s Office provided us with the evidence they’d gathered which they felt showed that Rolex’ confession to the murder of Thomas Keal was not genuine, but orchestrated by some unknown person. In addition to providing financial records of all of Rolex’ money transactions in prison – times when people put money into his account for him, and times when he made withdrawals from his account for postage or personal purchases – prosecutors handed over 6 compact disc recordings of hundreds of phone calls made by Rolex, Eugene, and Lance. On the discs for Rolex’ calls alone there were over 500 calls, each one about 15 minutes long. They also gave us a partial transcript from one of the calls – dated July 31, 2013 – from Rolex to his “wife” saying that he just did what “they” told him, that “they” gave him the money, then he talked to “their” investigator.

With the recordings, prosecutors handed over two handwritten letters which had been intercepted by prison officials before they went out. One was written to a name no-one recognized at an unknown address, the other to Lance’s brother at an equally unknown address. In the letters, Rolex spoke of “the deal,” claiming that he was owed “$10,000″ for doing what he did. He threatened to “tell the DA” about it unless he received his money.

The volunteers and staff of the Pennsylvania Innocence Project went into overdrive. gold-line-1021834-mLiterally around the clock, volunteers listened to every minute of the Rolex calls to find out whether there really was a deal, and if so who with. Our investigator went out to the addresses on the letters, to speak with those folks to see what they knew about Rolex and his claimed “deal.” And what we found out made one thing very clear: there was no “deal” and never had been. In fact, what we learned showed only one logical conclusion: fearing prosecution for Thomas Keal’s murder, Rolex tried to get out of his detailed confession by claiming it was the product of a deal. Here are just some of the things we learned:

  • th (16)The address on the enveloped addressed to Lance’s brother was an abandoned house, uninhabited for over 35 years (in fact, our own blank enveloped sent to “Occupant” at that address came back stamped “VACANT”);
  • The person at the other address had no idea who any of these people are, and had no knowledge of any of the events at issue;
  • Rolex’ ‘wife’ had been a virtual stranger to him only 2 months before the transcribed call – he had to ask a friend for her name to put on his visiting log;
  • Rolex had repeatedly lied to his new wife, hiding from her that he was serving a life sentence (he had told her he would be paroled soon);
  • While Rolex often talked about money on the tapes of his calls, it was always to complain that he had none, and to ask that others put money on his books – there was no talk of the situation being temporary, or allusions to a future payout;
  • The day before the call presented by the prosecutors, Rolex told his wife that he didn’t know what to do, that he couldn’t discuss anything on the phone or write anything to her in a letter;
  • Rolex knew that his mail was being opened by prison officials before it went out;
  • Under prison rules, inmates know that sending letters containing threats or extortion is prohibited and any such letters are subject to confiscation;
  • While outgoing mail may or may not get read by officials, all incoming mail – even for mail that had to be returned for a bad address – would be opened before forwarding to the inmate.

In the final day of testimony, prosecutors played the one phone call for the judge and gave her the letters intercepted at the prison. Refusing to accept a stipulation to the testimony, the District Attorney called a live witness – the head of Intelligence for Rolex’ home prison.th (17) He confirmed that Rolex’ mail was being opened before going out, that of over 50 letters sent out only these 3 had been confiscated, and that if an inmate uses another inmate’s name and institutional number in the return address he can avoid having his mail read altogether. Indeed, the prison official even talked of “boomerang” letters where inmates bounce correspondence to each other using other inmate names and numbers.

Finally, we also played excerpts of Rolex’ calls for the court. The judge heard for herself Rolex admitting

  • he was “trying to do the right thing”;
  • that if he was in “those boys” situation, he hoped someone would do what he was doing; and
  • that “the boys” didn’t have anything to do with “the situation” and that people get locked up for “stuff they didn’t even do.”

After the last call was played, prosecutors again asked for more time. The judge denied it, saying “You’re done. You’re done” and listed the case for final arguments on October 8, 2013.

As we write this, that date is one day away. Eugene is holding together well, hopeful but not making any predictions. His family – particularly his mother – speaks to him as often as possible, keeping his spirits up. And we are readying our final arguments, anxious to convince the court that a gross injustice has been done, and that she has the power to make it right.

Eugene Gilyard, Part 4: Eugene Finally Gets His Days in Court

The Court set hearings for Eugene and his co-defendant, Lance Felder, for the week of July 15. The weeks before, our summer interns were all involved in trying to make sure everything would be ready: legal arguments were honed, documents marked and copied, every witness statement was reviewed and reviewed again.

From the Start, Witnesses Said it was Rolex and Tizz

On the first day of hearings, the judge asked the Commonwealth whether they would argue that Eugene had not been diligent (and should therefore be denied relief) even if the evidence showed he did not commit the murder. The DA responded they will have to “see where it goes.” And so the tone was set.

During the next few days, we presented multiple witnesses who testified to the same thing: they were outside the evening Mr. Keal was murdered, hanging around a store on Venango Street. Eugene and Lance, both teenagers at the time, were there too. Some of them, including Eugene and Lance, were selling drugs. It was where they always sold drugs, directed by Lance’s older brother Rob. Rolex and Tizz were known as Rob’s “enforcers” – the men who would go after anyone who threatened the drug operation.

At some point, Rolex and Tizz came up and talked about robbing the bar on the corner. The people outside objected, saying it would “draw” police to the area. The two men left, saying they would go up the street. Eugene and Lance stayed right where they were.

The witnesses heard gun shots, then saw Rolex and Tizz running away from the scene. Some saw them get into a car driven by Rob Felder. The three men drove off. When police came to the scene, only one witness was willing to say she saw anything. She told police it was Rolex and Tizz. There was no other information given to police. Everyone else had scattered or would not talk.

And, finally, through our staff investigator, we heard Rolex’ confession. His chilling admission to not only Mr. Keal’s murder but to other assaults and robberies committed with the same gun, brought everyone in the courtroom to silence. Some highlights:

In August of 1995 I robbed and shot a man on 17th Street in between Erie and Venango.  Around 2 or 3 p.m. the day of the shooting I shot a man named Anthony Stokes around 58th and Christian with the same gun I used to shoot the man on 17th Street.  After I shot Mr. Stokes I went to N. Philly with a friend.  My friend knew a man named “Rob” who lived in N. Philly.

We were hanging out with Rob and his friends at the Chinese store on 17th in between Venango and Tioga.  Sometime between midnight and 2 a.m. my friend and I approached the man as he left a bar and was crossing the street.  I approached the man from the front (he was on the sidewalk) and my friend approached him from the back.

I had a double-barrel sawed-off shotgun.  My friend had a .22 revolver, silver with tape around the handle.

My friend held the .22 to the back of the man’s head.  The man had a chrome revolver with a black grip-it was a chrome .357.  The man pulled out his gun and said “I ain’t giving you shit.”  I shot the man in the leg and he fell.

My friend stood over him and shot him in the head.  I think my friend fired 3-4 shots.

I took the man’s gun – I had to pry it out of his hands.

After my friend shot the man on 17th Street I said “What the fuck did you do that for?”  He said, “Man, you shoot everybody, I want to shoot somebody too.”

No one has promised me or given me anything to get me to make this statement.  No one has threatened me.  Eugene Gilyard had nothing to do with the murder of the man on 17th Street.

Never would Rolex name his “friend,” protecting him even in coming clean himself. Nor did he want “Rob” (Rob Felder) to be identified in the statement. And, of course, the words came through our investigator, not Rolex. But as they were to be considered for their truth – that is that Rolex did, in fact, kill Thomas Keal – Eugene hoped it would be strong enough.

Did Eugene and Lance Act Diligently?  

A recurring theme in the questions the District Attorney asked the witnesses was whether Eugene or Lance could have gotten the information about Rolex and Tizz earlier. These questions were asked because, as the DA said, “They have to do everything in their power to pursue their cases.” Sadly, this is simply untrue. The law does not require a convicted innocent person to do “everything in his power” to prove his innocence; he only has to show he acted with “due diligence” – in other words, that he did what would reasonably be expected.

What became clear from the witnesses was that all of those involved knew that Eugene and Lance were innocent, and that Rolex, Tizz, and Rob were the ones responsible. But, as Philadelphia Inquirer reporter Joe Slobodzian pointed out in an article about the hearings, Rob had made it clear no-one should talk to police about the murder; even if it meant his own brother went to prison for something he didn’t do. The “code of the streets” protected Rolex and Tizz, but sent Eugene and Lance to prison as teenagers.  Eugene’s freedom depended upon getting Rolex, Tizz, or Rob to finally come forward and credibly admit the truth. Only once Rolex did that could Eugene hope to gain his freedom.

Another Twist: Follow the Money?

On what was supposed to be the final day of the hearing, the District Attorneys had a surprise: they had subpoenaed Rolex’ financial records from prison. In 2011, after he met with the investigator Eugene’s family hired to speak with him, there was a $500 deposit on his books made by a woman. The deposit appeared to be larger than ones regularly made by the same person, but it appeared only one time. The prosecutors wanted time to get all of Rolex’ phone calls that he made while in prison (all inmate calls are recorded going into and coming out of the prison) and all of his financial records.

Although she remarked that “$500 isn’t a lot of money to admit to a murder,” the judge allowed the prosecutors time to gather their evidence. But not much. What was uncovered during the next few weeks could show either an interrupted promise of payment for confessing, or a confessed murderer’s weak and failed attempt to get himself out of a murder arrest.

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Eugene Gilyard, Part 3: Asking for Justice

The laws in Pennsylvania are among the strictest in the nation for the convicted innocent trying to prove their innocence and secure their freedom.  Under the Post Conviction Relief Act (“PCRA”), those convicted of crimes must file any petition asking for a new trial within one year of the time their conviction became final – generally, a year after their appeals are completed. After that, any petition filed must meet extremely strict requirements:

    • the petition has to show that a “manifest injustice” occurred and that the petition th (12)has to be granted to fix it; or
    • the petition has to show either that the government “interfered” with the defendant’s ability to present the claims in the petition earlier; or
    • that the defendant has discovered new “facts” which were “unknown” to him and “could not have been ascertained by the exercise of due diligence; and
    • he has to file his petition within 60 days of “the date the claim could have been presented.”

If the defendant gets over those barriers, only then can he ask the court to review the real substance of his claim. And those claims have to fit within the limits of the PCRA itself. A court can only grant relief if it finds that the defendant’s conviction was the result of:

    • a constitutional violation which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”;
    • ineffective assistance of counsel which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”; or
    • new, exculpatory, evidence which was not available at the time of the defendant’s trial and which “would have changed the outcome of the trial if it had been introduced.”

th (13)The standard is, obviously, very high. And, of course, it should be high. It should not be easy to overturn a criminal conviction. But Eugene’s case and dozens more like it raise the question of how hard should it be. If the evidence of innocence is strong enough, should it matter how “diligently” the defendant pursued it, or if he filed within 60 days of learning of the evidence? Those questions clearly troubled the judge, even on our first day of hearings.

Eugene’s Petitions and the D.A. Response

We have previously posted in this blog about the substance of Eugene’s claims, and how the District Attorney’s Office responded. Those posts, which you can access here, include links to the actual petitions and filings. Essentially, the Commonwealth’s response to Eugene’s evidence that Rolex’ confession entitles him to a new trial was that he had failed to show he acted “diligently” in getting Rolex to confess. As a result, the District Attorney’s Office asked the Court to dismiss Eugene’s petitions. The Court decided that she would hear Eugene’s evidence and make a determination about his diligence at the same time.

A Wrinkle: Rolex Takes the Fifth 

Because Rolex was now admitting to having participated in a murder for which he had never been arrested, he needed his own legal counsel. In Pennsylvania, there is no statute of limitations for murder. That means that for murder, unlike any other crime, there is no specific time in which the Commonwealth has to act to arrest and prosecute the perpetrator. Because of that, Rolex could still be arrested and prosecuted for Thomas Keal’s murder. So he needed a lawyer to see whether he was willing to come to court to tell the judge directly what he had told numerous other people: that he had gotten away with murder.

Quickly the word came back: Rolex was refusing to testify. He intended to exercise his constitutionally protected right to remain silent. No-one doubted that he had a legitimate right to invoke that right.

The question now became, could Eugene call the Project investigator to tell the judge what Rolex had confessed to? The District Attorney’s position was no: the statement to the investigator took place outside of court and was therefore inadmissible as “hearsay” and unreliable. Our position was that the law has exceptions to that rule, such as when someone admits to criminal activity that could get them prosecuted and convicted of a crime they weren’t otherwise under suspicion for. The judge agreed with Eugene: Rolex’ confession would be admitted.