2017-09-19 13:25:37 UTC
Relief hearing held for Lancaster man on death row for 2010 slaying of musician
A Lancaster man sentenced to death for fatally shooting a local hip-hop
musician in 2010 was at Lancaster County Courthouse Monday, attempting to
convince the court that his case deserves another trial.
Jakeem Towles, 28, claimed his trial lawyers were ineffective in a Post
Conviction Relief Act hearing held before Judge Howard Knisely.
Towles was convicted of killing Cornell 'Young E-Z' Stewart, 20, following a
performance at a Columbia fire hall in May of 2010 and was subsequently found
guilty and sentenced to death in 2012.
In court filings, Towles has questioned whether his trial attorneys - Samuel
Encarnacion and Patricia Spotts - erred in certain elements of the trial
including his own ability to testify, his attorney's handling of certain
evidence and witnesses; and for failing to object to the striking of 2 jurors
based on gender. He has also called his death sentence unconstitutional.
Encarnacion, Spotts and Towles all testified about the case Monday.
Forensic psychologist Gerald Cooke, who diagnosed Towles with a personality
disorder with antisocial and paranoid features, and a witness to the shooting,
Robert Sanders, also testified.
Knisely is expected to make a ruling on the case in the coming months after
attorney briefings are filed.
Towles is on death row at State Correctional Institution-Greene in Waynesburg,
which is about 52 miles south of Pittsburgh.
The Pennsylvania Supreme Court affirmed Towles' death sentence in 2014, finding
Towles acted with malice and specific intent to kill when he opened fire on
Stewart and others following a fight inside the building minutes earlier.
8 Lancaster County residents are currently on death row. No one has been
executed in Pennsylvania since 1999.
Gov. Tom Wolf issued a moratorium on the death penalty in 2015, calling the
system "error-prone, expensive and anything but infallible."
40 years after ritual serial killings, 'Stocking Strangler' Carlton Gary's
appeals are running out
Saturday was the 40th anniversary of Columbus' 1st "Stocking Strangling," when
59-year-old Mary "Fern" Jackson was found murdered in her 2505 17th St. home.
She brutally had been beaten and raped, and strangled with a stocking and a
sash. Her body was left covered.
That Friday morning, Sept. 16, 1977, the city did not foresee the terror to
come, but it soon learned to its shock and horror a serial killer stalked the
night, preying upon older women who lived alone, ritually killing each by
strangulation with a ligature, usually a stocking, and leaving the body covered
for others to unveil.
More 40th anniversaries are coming: Sept. 24 for the rape and murder of Jean
Dimenstein, 71; Oct. 21 for Florence Scheible, 89; Oct. 25 for Martha Thurmond,
70; Dec. 28 for Kathleen Woodruff, 74; Feb. 12 for Mildred Borom, 78; and April
20 for Janet Cofer, 61.
Convicted and sentenced to death Aug. 27, 1986, for the rapes and murders of
Scheible, Thurmond and Woodruff, with evidence in other cases used to show a
pattern of criminal conduct, Carlton Gary today remains on Georgia's death row
at the Diagnostic and Classification Prison in Jackson.
Born Sept. 24, 1950, he has an anniversary of his own coming up - his 67th
It could be his last.
Time is running out
With Muscogee Superior Court Judge Frank Jordan Jr.'s Sept. 1 50-page order
denying Gary a new trial, the serial killer's final appeals are running out.
They've run out before: On Dec. 16, 2009, Gary was to die by lethal injection,
a method not in use when he was sentenced to the electric chair. Hours before
his appointed time, the state Supreme Court issued a stay and sent the case
back to Muscogee Superior Court for hearings on DNA-testing stranglings
evidence. 8 more years of legal maneuvering ensued.
Now, with the DNA testing completed and argued at the Superior Court level, the
next step is for Gary's defense team to file an application of appeal to the
Georgia Supreme Court, asking it to review Jordan's ruling.
Gary's lead attorney, Atlanta lawyer Jack Martin, has not returned calls for
comment. Court clerks say so far no application has been filed.
If the Supreme Court agrees to hear the appeal, the defense files briefs and
the prosecution responds, possibly with oral arguments before the court.
If the appeal is denied, the window through which Gary once more may escape
death narrows significantly, as events pick up speed.
The defense may file a final appeal to the U.S. Supreme Court, which repeatedly
has refused to hear Gary's case. Many of the issues raised in his new-trial
motion already have been litigated in federal court.
If higher courts reject Gary's appeals, Jordan will issue a death warrant
designating a week for the Department of Corrections to schedule Gary's
In 2009, then-Superior Court Judge Robert Johnston issued a Dec. 3 death
warrant book-ended noon Dec. 16 to noon Dec. 23. The Department of Corrections
picked the 1st day.
Anyone sentenced to death gets one last shot at clemency with the state Board
of Pardons and Paroles, which can commute the sentence to life in prison, or
stay the execution for 90 days. The board in 2009 turned Gary down Dec. 15.
All of that - from the judge's order, to the corrections department's setting a
date, to the parole board's denying clemency, to the day of execution - spanned
2 weeks, and could be just as quick this time around.
The board has a death-penalty case coming up: Keith Leroy Tharpe is sentenced
to die for the 1990 kidnapping and murder of sister-in-law Jaqueline Freeman in
Jones County. The Georgia Supreme Court has upheld his sentence and the U.S.
Supreme Court denied his appeal.
The board meeting will be 9 a.m. Sept. 25. Tharpe is to die by lethal injection
at 7 p.m. Sept. 26.
Under Georgia law, parole board meetings are closed to the press. "No public
comment will be taken at this meeting and no other business will be conducted,"
says the notice for Tharpe's case.
The evidence in dispute
The legal standard Jordan used to weigh the evidence is set in the Georgia
Supreme Court precedent Timberlake v. State, decided Sept. 23, 1980:
"It is incumbent on a party who asks for a new trial on the ground of newly
discovered evidence to satisfy the court: (1) that the evidence has come to his
knowledge since the trial; (2) that it was not owing to the want of due
diligence that he did not acquire it sooner; (3) that it is so material that it
would probably produce a different verdict; (4) that it is not cumulative only;
(5) that the affidavit of the witness himself should be procured or its absence
accounted for; and (6) that a new trial will not be granted if the only effect
of the evidence will be to impeach the credit of a witness."
2 crucial requirements are that the evidence be "new" and nothing the defense
knew about or should have discovered, and that it be so significant it likely
would have resulted in a different verdict or sentence.
Here are Jordan's rulings on the evidence Gary's attorneys presented:
Fingerprints. The defense argues police failed adequately to match fingerprints
found at the Jackson, Scheible, Thurmond and Woodruff crime scenes to Gary,
lacking sufficient "points of comparison" to declare a match, and failing to
photograph where prints were found. Also Edward Covington, who served on a
stranglings task force, said he was told no useable fingerprints were ever
Jordan said the fingerprint evidence was introduced and argued at Gary's 1986
trial, so it is not new.
-- The shoeprint. The day before Mildred Borom's body was found 2 blocks away
on Forest Avenue, an intruder climbed through a window of Ruth Schwob's 1800
Carter Avenue home and tried to strangle the 70-year-old. She triggered an
alarm, and the assailant fled. On an air-conditioning unit outside the window,
police found a shoeprint about size 10. Gary wears a size 13 1/2.
Noting this relates not to a murder for which Gary was convicted, but to a
similar case used to show his pattern, Jordan said the evidence likely would
not have resulted in a different verdict.
-- The bite mark. On Cofer's left breast, investigators found a bite mark from
which a dentist made a cast. This evidence was not presented during Gary's
trial, and the defense claims prosecutors deliberately withheld it because it
could have exculpated Gary. The cast was lost until then-Coroner James
Dunnavant found it in a file cabinet Nov. 9, 2005.
A forensic dentist examining the cast said the biter's upper teeth had a gap,
and his lower teeth were crowded, with 1 crooked. Gary's teeth had no such
As this evidence also stems from a case for which Gary was not convicted, it
likely would not have led to a different verdict, Jordan said.
-- The composite sketch. Authorities believe the Sept. 11, 1977, rape and
beating of 64-year-old Gertrude Miller was a precursor to the subsequent
stranglings. Following Thurmond's Oct. 25 murder, investigators had Miller
hypnotized and told to describe her assailant as an artist made a sketch. The
sketch does not resemble Gary, whom Miller identified as her attacker during
Jordan said the defense knew about the sketch in 1986, as Gary's defense
attorney questioned Miller about it during cross examination, so it is not
newly discovered evidence.
-- The confession. After his arrest in Albany, Ga., on May 3, 1984, Gary was
brought to Columbus, where police escorted him on a tour of the area where the
stranglings occurred. Police did not record what Gary told them, but testified
he pointed out victims' homes, as well as other houses he'd broken into. During
new trial hearings, the defense had an expert testify that even false
confessions can be accurately detailed.
Jordan said the confession evidence was presented during Gary's 1986 trial, so
it is not new.
-- The "secretor evidence." DNA testing was not available in 1986, so
investigators had semen evidence tested for markers of the secretor's blood
type. Most people are "strong secretors," meaning their blood type is readily
apparent. Fewer are weak or "non-secretors." Prosecutors during Gary's trial
presented testimony the strangler was a weak or non-secretor, and so was Gary.
Later tests showed Gary was a strong secretor.
Jordan said this evidence, which was available to the defense at trial, likely
would not have resulted in a different verdict.
-- The DNA evidence. After Gary's 2009 stay of execution, the defense and
prosecution on Feb. 19, 2010, agreed to DNA-test suitable stranglings evidence.
The initial results were mixed, matching Gary to Dimenstein's rape and
strangling, but not Thurmond's. Later the GBI crime lab said it contaminated
the Thurmond evidence with a "control sample" used to test lab equipment.
Jordan then ordered DNA-testing on clothing police collected from Gertrude
Miller's assault. The result did not match Gary.
As the conflicting DNA evidence relates to no murder for which Gary was
convicted, it likely would not lead to a different verdict, Jordan ruled.
-- Adequate defense funding. From the outset an issue in Gary's trial was
whether his attorneys had the funding to mount an effective defense. After his
conviction, he appealed to the state Supreme Court, claiming ineffective
assistance of counsel. On June 26, 1987, the court sent the case back to
Columbus for hearings on that issue. But during hearings the following
November, Gary refused to waive attorney-client privilege so his lawyers could
testify to their difficulties. Judge Kenneth Followill ruled Gary waived his
right to such a challenge, and the state Supreme Court upheld Followill.
Jordan said he must abide by the Georgia Supreme Court's decision, so
effectiveness of counsel is not an issue he can consider.
Carlton Gary timeline
This timeline was compiled from Columbus police, court records and
Sept. 24, 1950: Carlton Michael Gary is born in Columbus, Ga., where he lives
until age 16, when he moves with his mother to Fort Myers, Fla., and later
Sept. 3, 1964: Gary attends Carver High School.
Nov. 18, 1965: Gary attends Spencer High School.
Jan. 31, 1966: Gary returns to Carver High School and later transfers to Dunbar
High School in Fort Myers, Fla.
Oct. 31, 1967: Gary's charged with breaking into an automobile in Gainesville,
March 17, 1968: Gary's charged with arson in Gainesville, Fla.
Nov. 26, 1969: Gary's charged with assaulting a police officer in Bridgeport,
Conn. April 14, 1970: Nellie Farmer, 85, is raped and strangled and her body
left covered in her home in the Wellington Hotel, Albany, N.Y. Gary's
fingerprint is found at the scene. Gary claims another man killed Farmer, and
is convicted only of robbery.
July 15, 1970: Gary's sentenced to 10 years in prison for robbery.
March 31, 1975: Gary is released from prison and moves to Syracuse, NY.
June 27, 1975: The body of Marion Fisher, 40, is found on a road just outside
Syracuse. She was raped and strangled. Authorities in 2007 say they match
Gary's DNA to the cold-case evidence.
July 25, 1975: Gary's charged with escape, resisting arrest and violating
July 17, 1976: Gary's released on parole.
Sept. 3, 1976: Gary's charged with assault.
Jan. 2, 1977: Jean Frost, 55, is raped and nearly choked to death in her home
in Syracuse, N.Y. Gary has a watch taken from Frost's home when police arrest
him 2 days later. Again he blames another man for the assault. He is charged
with possessing stolen property, resisting arrest, perjury and assault.
Aug. 23, 1977: Gary escapes from New York's Onandaga County prison by jumping
from a 3rd-floor window. He goes home to Columbus, where he soon moves to 1027
Sept. 11, 1977: Gertrude Miller, 64, is beaten with a board and raped in her
2703 Hood St. home, about 2 blocks from Fisk Avenue. Her assailant leaves
behind knotted stockings he took from her dresser. She in 1986 identifies Gary
as the rapist.
Sept. 16, 1977: Mary Willis "Fern" Jackson, 59, of 2505 17th St., is found
brutally beaten, raped and strangled with a stocking and sash. Her body is left
covered. Her stolen car is later found on Benner Avenue near Fisk Avenue.
Sept. 24, 1977: Jean Dimenstein, 71, is found raped and strangled with a
stocking in her home that then had the address 3027 21st St. (the street has
since been renamed). Her body was left covered with sheets and a pillow Later
tests match Gary's DNA to crime-scene evidence.
Oct. 4, 1977: Gary moves to 3231 Old Buena Vista Road.
Oct. 8, 1977: The 1427 Eberhart Avenue home of sisters Callye East, 75, and
Nellie Sanderson, 78, is burglarized. Sanderson's son Henry is visiting. The
intruder steals his Toyota, which has a .22-caliber Ruger pistol under the
seat. The car's left on Buena Vista Road.
Oct. 21, 1977: Florence Scheible, 89, is found raped and strangled with a
stocking in her 1941 Dimon St. home, which today has a different address. Her
body was left covered. Gary's right thumbprint was found on a door frame
leading into Scheible's bedroom.
Oct. 25, 1977: Martha Thurmond, 70, is found raped and strangled with a
stocking in her 2614 Marion St. home. Her body was covered by a pillow,
blankets and sheets. Gary's fingerprint is found on the frame of a rear bedroom
Nov. 11, 1977: Gary moves to 2829 Ninth St. and gets a job working the late
shift at Golden's Foundry.
Dec. 16, 1977: Gary leaves the foundry job.
Dec. 20, 1977: The 1710 Buena Vista Road home of William Swift is burglarized
while the residents are away. Swift later discovers the burglar removed bars
from a kitchen window to get in, then set the bars back on the windowsill.
Detectives later say Swift never told police this; Gary did.
Dec. 28, 1977: Kathleen Woodruff, 74, is found raped and strangled in her 1811
Buena Vista Road home, which later was demolished during an Aflac expansion.
Gary's right little fingerprint is found on the aluminum window screen where
the intruder entered, and his palm print is found on the windowsill just
Jan. 1, 1978: The 2021 Brookside Drive home of Abraham Illges, who is 85 and
whose wife is 75, is burglarized and a Cadillac stolen. The car's left at a
restaurant on Victory Drive. Police say Gary later refers to this home as "the
Feb. 11, 1978: Ruth Schwob, 74, of 1800 Carter Ave., is nearly strangled to
death by an intruder she fights off, pressing a panic alarm by her bed. Police
find her sitting on the edge of her bed, gasping, a stocking wrapped around her
Feb. 11, 1978: The Illges home is burglarized again, but the intruder triggers
an alarm and flees. Police said Gary later told them he ran and hid in Wildwood
Feb. 12, 1978: Mildred Borom, 78, 1612 Forest Ave., about 2 blocks from
Schwob's home on the west side of Wildwood Park, is found raped and strangled
with a cord cut from window blinds. Her body's covered with a garment. This
series of rapid events becomes known as "The Night of Terrors."
April 20, 1978: Janet Cofer, 61, of 3783 Steam Mill Road, is found raped and
strangled with a stocking. A pillow covers her face. Police find Cofer's stolen
car on Mill Road.
April 20, 1978: Gary robs the Burger King at 3520 Macon Road.
May 14, 1978: Gary robs the Hungry Hunter restaurant at 1834 Midtown Drive.
Sept. 4, 1978: Gary robs the Western Sizzlin restaurant at 4385 Victory Drive.
Sept. 22, 1978: Gary robs the Talk of the Town restaurant in Greenville, S.C.
Oct. 8, 1978: Gary robs the Ryan's Steakhouse in Greenville.
Oct. 19, 1978: Gary robs the Western Sizzlin steakhouse in Greenville.
Nov. 5, 1978: Gary robs the Po' Folks restaurant in Greenville.
Dec. 7, 1978: Gary robs Jack's Steak House in Greenville.
Feb. 15, 1979: Having earned the nickname "Steakhouse Bandit," Gary robs a Po'
Folks restaurant in Gafney, S.C., and is arrested the next day.
Feb. 22, 1979: Gary is convicted of armed robbery in Greenville County, S.C.
March 29, 1979: Gary is convicted of armed robbery in Cherokee County, S.C.
March 15, 1984: He escapes from a prison in Columbia, S.C., and returns to
April 3, 1984: Gary robs a Po' Folks restaurant on the 280 Bypass in Phenix
City and rapes a woman who works there.
April 10, 1984: Henry Sanderson calls Columbus police to ask about the Ruger
pistol taken from his Toyota in the 1977 Eberhart Avenue burglary. A detective
sends out a nationwide alert for the gun, which turns up in Michigan and is
traced back to Gary.
April 16, 1984: Gary robs a Wendy's restaurant in Gainesville, Fla.
April 22, 1984: Gary robs a McDonald's restaurant in Montgomery, Ala.
April 28, 1984: Gary robs the County Seat Store in the Oaks Mall of
April 30, 1984: Prompted by Sanderson's call and the gun trace, copies of
Gary's fingerprints arrive at the Columbus Police Department, where one is
matched to a print found on the frame of a screen removed from Woodruff's home.
May 3, 1984: Authorities arrest Gary in Albany, Ga.
May 4, 1984: From around midnight until 3:30 a.m., Gary takes investigators on
a tour of homes he tells them he broke into. He blames the stranglings on
May 8, 1984: Gary attempts suicide in jail.
May 9, 1984: Then Superior Court Judge John Land appoints attorneys William
Kirby and Stephen Hyles to represent Gary.
Aug. 28, 1984: Attorney August "Bud" Siemon becomes Gary's lead defense
Oct. 11, 1984: Attorney Bruce Harvey becomes Gary's co-counsel. Attorney Gary
Parker joins the defense team the following December.
Feb. 8, 1985: Siemon files a motion asking Judge Land to recuse himself because
he has personal knowledge of the case. Land recuses himself.
May 13, 1985: Judge E. Mullins Whisnant is assigned the case.
May 22, 1985: Siemon files a motion asking Whisnant to recuse himself because
he was the district attorney during the strangling.
May 20, 1985: Whisnant recuses himself and the case is assigned to Judge
Dec. 18, 1985: Parker withdraws as co-counsel after Followill refuses to grant
the defense team funds for an investigator.
Dec. 29, 1985: Gary tries to escape from jail.
March 10, 1986: On the day Gary's trial is to start, he refuses to get dressed
and come to court. Harvey files a motion questioning Gary's competency to stand
trial, saying the defendant's mental health is in decline. Followill orders a
March 24, 1986: Gary goes to Georgia Central State Hospital in Milledgeville
for his evaluation, but refuses to cooperate with doctors.
April 21, 1986: Followill holds a trial to determine Gary's mental competency.
April 28, 1986: The jury finds Gary competent for trial.
June 9, 1986: Gary's trial is set to begin, but Siemon files for a change of
July 2, 1986: Followill decides that instead of moving the trial, the court
will bring jurors from Griffin, Ga., to hear the case.
July 7, 1986: Harvey withdraws, leaving Siemon as Gary's only lawyer.
Aug. 11, 1986: Gary's trial begins.
Aug. 26, 1986: The jury finds Gary guilty in 3 of the 7 stranglings, though
then District Attorney Bill Smith maintains one perpetrator committed all 7
along with the attack on Miller and Schwob. Smith used evidence from the other
cases to illustrate a pattern of criminal behavior.
Aug. 27, 1986: The jury sentences Gary to death.
Sept. 25, 1986: Gary moves for a new trial. His motion's denied the following
Oct. 18, and he appeals to the Georgia Supreme Court.
June 26, 1987: The Georgia Supreme Court sends the case back to Columbus,
instructing the court here to determine whether Gary had ineffective counsel.
Nov. 4, 1987: Followill holds hearings to determine the effectiveness of Gary's
June 12, 1989: Followill rules Gary failed to show his counsel was ineffective.
March 6, 1990: The Georgia Supreme court upholds Followill's ruling and
reaffirms Gary's conviction and death sentence.
Jan. 27, 1995: The superior court of Butts County, Ga., where Gary is
imprisoned, rejects 1 of his habeas corpus appeals.
Nov. 13, 1995: The court rejects another of Gary's habeas corpus appeals.
Nov. 18, 1997: Gary files a habeas corpus appeal in U.S. District Court for the
Middle District of Georgia.
Sept. 28, 2004: The federal court rejects Gary's appeal, and he appeals to the
11th Circuit Court of Appeals.
Nov. 9, 2005: Then-Coroner James Dunnavant finds a bite-cast mold made from
teeth marks on Janet Cofer's body. It has been missing since Dunnavant's
predecessor Don Kilgore died.
Nov. 23, 2005: The appeals court sends the case back to U.S. District Court to
consider the bite-mark evidence.
Feb. 14, 2007: The district court holds a hearing and decides the bite cast
would not have bolstered Gary's defense and again rejects his appeal. Gary
again appeals to the 11th Circuit.
Feb. 12, 2009: The 11th Circuit rejects Gary's appeal. He appeals to the U.S.
Dec. 1, 2009: The U.S. Supreme Court refuses to hear Gary's appeal. His
execution is set for the following Dec. 16.
Dec. 16, 2009: Gary is hours away from execution when the Georgia Supreme Court
issues a stay and sends the case back to Muscogee Superior Court to consider
DNA testing evidence.
Feb. 19, 2010: Prosecutors and defense attorneys agree to DNA test suitable
evidence samples, four items from 3 cases: Dimenstein, Scheible and Woodruff.
Dec. 14, 2010: Attorneys say the initial DNA test results match Gary to the
murder of Jean Dimenstein but not Martha Thurmond. The defense seeks testing on
clothes from Gertrude Miller the morning after she was raped and beaten.
March 6, 2012: Tests of the Miller evidence yield a DNA profile that does not
match Gary. The prosecution says the defense can't prove Miller was wearing the
garments when raped.
Nov. 21, 2013: District Attorney Julia Slater announces the Thurmond DNA test
was tainted at the state crime lab and thus invalid.
February 24-28, 2014: Judge Frank Jordan Jr. holds evidentiary hearings on
Gary's new trial motion.
Jan. 11, 2016: Doug Grubbs, son-in-law of sheriff's investigator Don Miller, in
the attic finds a briefcase containing files on the strangling. He turns it
over to the sheriff's office.
Jan. 27, 2016: The defense is told of the briefcase.
Feb. 3, 2016: Both sides meet to inspect the documents. They find a composite
sketch believed to have been drawn as Gertrude Miller described her assailant
under hypnosis in October 1977.
Jan. 12-12, 2017: Jordan holds a final set of hearings on the new evidence in
Gary's motion for a new trial.
June 27, 2017: The prosecution files a motion asking Jordan to issue a ruling.
Sept. 1, 2017: Jordan denies Gary's motion for a new trial in a 50-page ruling.
Defense seeks to sway jurors away from death penalty vote in 1987 strangulation
murder----Jury to consider death sentence in 1987 killing
Hoping to convince a jury to spare Rodney Clark's life, the convicted
murderer's lawyers on Monday presented testimony about both his troubled past
and potential for redemption.
Clark was found guilty last month in the June 20, 1987, strangulation killing
of Dana Fader, 27. He was not arrested until late 2012, following a DNA match
to evidence collected from the suburban Lake Worth crime scene.
Prosecutors are seeking the death penalty, based partly on Clark's prior rape
conviction for which he served 8 years in a Mississippi prison. The Palm Beach
County jury is expected to hear final arguments Tuesday and then begin
The punishment phase of the trial began Sept. 6 - 2 of Fader's 3 children
testified about growing up without her - but was interrupted by Hurricane Irma.
Public Defender Carey Haughwout says there are a myriad of reasons to sentence
Clark to life in prison rather than send him to death row. She said her
50-year-old client suffered early in life, when he was raised by an abusive
mother in his birthplace of Jackson, Miss.
"She was mean one day and good the next," testified Johnny Jones, a 1-time
step-dad to Clark when the defendant was a toddler.
The mom's preferred method of discipline was setting fire to a piece of paper
and holding it near the child, Jones said.
Asked by prosecutors Brian Fernandes and Reid Scott if he ever reported the
burning paper punishment to police, Jones said he never did but always tried to
look after Clark and his siblings.
Clark and Jones, 69, exchanged smiles and waves when he entered and departed
Circuit Judge Charles Burton's courtroom.
Frank Figgers, another witness from Clark's hometown, told the jury about the
difficulties that African-Americans faced in Mississippi in the 1960s because
of segregation and civil rights violations.
Figgers, who works as a community development specialist and leads history
tours in Jackson, said Clark was likely exposed to poisoning from lead paint in
his childhood house in a poor, black neighborhood.
Michael Sweet, a pastor from Jackson, testified that he met Clark and became
fast friends with him in 2011 when Clark, unemployed and homeless, took shelter
in his ministry.
"A very good person, a man that's trying to change his life," Sweet said of
Clark, noting he took and passed random drug and alcohol tests.
When prosecutor Fernandes pressed Sweet about whether Clark ever reported his
status as a sex offender, or mentioned the Fader murder, Sweet said no.
Clark's lawyers called medical experts to discuss Clark's diagnoses of brain
damage, Post Traumatic Stress Disorder, diabetes, spinal pain, and other
ailments. The defense says Clark, a father of 2, is in a wheelchair today
because he fell from the top of a house while working for a roofing company.
The prosecutors want the jury to consider Clark's 1988 Mississippi rape
conviction and 2 other so-called aggravating factors to agree that a death
sentence is warranted.
One is an allegation that Clark raped Fader in addition to killing her, though
he wasn't charged with sexual battery. According to court testimony, detectives
matched Clark's DNA to a semen stain on Fader's dress. Clark's palm print was
also found on a window of Fader's car, where she was killed in the back seat.
The final factor is that the murder was "heinous, atrocious and cruel" because
Clark held his victim's throat and stopped her from breathing, the prosecutors
said. It was labeled a random attack because Clark and Fader had no previous
Under Florida's new death penalty law, unanimous jury votes now are required to
impose capital punishment. This is the 1st test of the updated law in Palm
Justice Delayed: 10 Years in Jail, but Still Awaiting Trial
Kharon Davis was 22 when he was charged with capital murder and booked into the
county jail. 10 years later, he is still there, awaiting trial.
He has had 2 judges, 4 teams of lawyers and nine trial dates, the 1st of which
was in 2008. His case has outlasted a district attorney who served for nearly 3
decades. It defies any common understanding of the right to a speedy trial.
As the case has languished, Mr. Davis, whose only prior offense was driving
without a license, has been segregated from the jail's general population for
minor transgressions like unauthorized peanut-butter-and-jelly sandwiches, and
a couple of more serious ones, like fighting. His mother, Chrycynthia Davis,
says she has been allowed to visit him just once in the last 3 years.
Though he has not been found guilty, Mr. Davis has already served half of the
minimum sentence for murder.
The case, State of Alabama v. Kharon Torchec Davis, underscores how the
country's justice system can founder at many levels, especially for poor
defendants. And it exposes the loopholes in the constitutional protections that
are supposed to ensure that both the victims and the accused receive timely
In capital murder cases, in which the defendant faces the death penalty, it is
not unusual to spend 2 or 3 years behind bars awaiting trial if the defendant
is not granted bail or is unable to afford it. But a decade is extreme. Mr.
Davis's wait is among the most protracted that The New York Times could find.
Mr. Davis's case has suffered from misplaced evidence, conflicts of interest,
and restrictions on his ability to review his own legal documents in jail,
according to interviews and a review of his case file. His lawyers and
prosecutors share the blame for the delay, as does Mr. Davis himself. At a
hearing early last year, for instance, Mr. Davis insisted on replacing his 2nd
team of court-appointed lawyers, saying he did not trust them, even though the
judge warned that doing so would further delay his trial.
"It is impossible to look at it," said Jonathan Turley, a constitutional law
expert at George Washington University, of the case, "and not find it deeply,
Mr. Davis maintains he is innocent and has declined offers of a plea deal. In
February, after the election of a new district attorney who had a conflict of
interest, the state attorney general took over the prosecution and dropped
pursuit of the death penalty. Jury selection in the trial finally began on
The basic facts of Pete Dwayne Reaves's death are not in dispute. On a Friday
night in June 2007, Mr. Davis and 2 other men drove to his apartment, looking
to buy marijuana. The visit quickly went bad: Mr. Reaves was shot twice. He
died from the gunshot wounds.
1 of Mr. Davis's companions was a childhood friend, Kevin Bernard McCloud, who
like Mr. Davis had no prior criminal record. The other was an older man, an
acquaintance named Lorenzo Stacey, who had a rap sheet that included burglary
and cocaine possession.
All 3 men were charged with capital murder, but their cases had very different
Mr. Stacey, who was acquitted in 2009, maintained that he had stayed in the
parking lot, and entered the apartment only after hearing the gunshots.
Mr. McCloud's lawyer said that his client heard Mr. Davis yell at him to get
down and then felt a pain in the back of his neck. Mr. McCloud had been shot by
a bullet that passed through him and struck Mr. Reaves. In 2011, Mr. McCloud
took a plea deal, agreeing to testify against Mr. Davis in exchange for being
spared the death penalty. He was sentenced to 99 years.
Prosecutors have said that the three friends were wearing masks and intended to
rob Mr. Reaves, and argued that Mr. Davis had fired a stolen 9-millimeter
handgun. It was Mr. Stacey who told the police where to find the gun, claiming
that Mr. Davis had hidden it behind a Dumpster, but no fingerprints were found
In a letter Mr. McCloud sent to Mr. Davis's mother after he accepted the deal,
he assured her that he would not do anything to hurt her son.
The prosecutor at the time, Douglas A. Valeska, wanted him to "get on the stand
and lie, and I'm not going to do that," Mr. McCloud wrote. The judge has
ordered that Mr. McCloud be transported to court for the trial. Mr. Valeska did
not respond to a phone call and email seeking comment.
In the summer of 2015, Mr. Davis's lawyer, Derek Yarbrough, was looking through
an evidence box from Mr. Stacey's trial when he found something that could
shape the outcome for his client: a forensic kit with the results of a gunshot
The kit indicated that Mr. Davis had tested positive for residue. But it did
not include further analysis needed to determine whether it came directly from
a gunshot, or from an indirect source like a car seat. Mr. Davis's current
lawyers would not say whether that analysis has since been done.
From the beginning, there was something peculiar about the way the Davis case
ground through the legal system. His first lawyer, Benjamin Meredith, was the
father of one of the investigating officers, Frank Meredith. At a preliminary
hearing, the elder Mr. Meredith cross-examined his son.
But it was 4 years before anyone raised a concern about the potential conflict
of interest. In 2011, Mr. Valeska, the district attorney, finally brought it
up. Judge Kevin Moulton, who had taken over the case in 2010, removed Mr.
Meredith, who had initially been hired by Mr. Davis's mother, but became a
court-appointed lawyer when she could no longer afford the bill.
Mr. Valeska did not respond to inquiries on why he waited so long.
In all that time representing Mr. Davis, Benjamin Meredith had filed only 2
More delays followed: Mr. Davis's new lead counsel, Mr. Yarbrough, needed time
to finish another murder case. The trial was postponed when the gunshot residue
kit was found, and again when Mr. Davis's lawyers said they needed more time.
Finally, it was set for April 2016.
Alabama's method of handling indigent defense has long been criticized as
deeply flawed, particularly in death penalty cases. It underwent some changes
in 2011, but judges still handpick defense lawyers, and they are paid only $70
an hour - less than half the federal pay rate for capital defenders and far too
low to attract experienced death penalty lawyers, said Lisa Borden, who
oversees pro bono programs at the Baker Donelson law firm in Birmingham. In
2011, former judges on the state's highest courts told the United States
Supreme Court that capital defendants in Alabama faced "a lack of qualified
counsel at all stages."
Particularly in rural communities like Dothan, the legal community can be small
enough to make conflicts hard to avoid. The newly elected district attorney
could not prosecute the case because he had previously represented 1 of the 3
men accused in the murder.
By August 2015, Mr. Davis had lost faith in his lawyers, complaining of delays.
Both Mr. Davis and the lawyers themselves asked that they be removed from the
The judge determined that the lawyers were adequately representing Mr. Davis,
and warned that new lawyers could delay the trial by another 2 to 3 years, but
Mr. Davis insisted. His next lead counsel lasted 6 months before discovering
that he had once represented a relative of the victim.
In late 2015, when Mr. Davis had been in jail for 8 years, his mother tried to
help him herself, hiring a legal document preparation service for $100.
The result, a rambling petition to a federal court, went nowhere. But it was
the 1st filing in Mr. Davis's case to invoke his right to a speedy trial.
The right to a speedy trial does not come with a clear definition of speed.
Rather, the Supreme Court established in 1972 a 4-part test for whether the
right had been violated: the length of the delay, the reasons, the time and
manner in which a defendant has asserted the right and the degree to which the
defendant???s case might be harmed.
Delays can sometimes benefit defendants, who may purposefully try to stall
until witnesses die or memories fade. Defendants who cause their own delays may
be deemed to have waived their right to a speedy trial.
In Mr. Davis's case, he knowingly delayed his trial by demanding new lawyers,
but one of his stated reasons has been their failure to bring the case to
When Mr. Davis's current lawyers, Thomas M. Goggans, Dustin Fowler and
Christopher Williams, finally filed their own speedy trial motion, they focused
on the 4 years when he was represented by Mr. Meredith, saying that delay was
not their client's fault.
But Judge Moulton said Mr. Davis was entirely to blame: "All delays in this
case are attributable to the defendant," he wrote.
He also said the claim was too late. "The defendant has waited 10 years to
assert his right to a speedy trial in the form of a motion to dismiss, which
comes approximately five months prior to the trial date," he said.
A clerk for Judge Moulton said he would not comment further on an active case.
Judges must try to steer clear of situations that may be grounds for appeal,
said William Lee Pfeifer Jr., an appellate lawyer in Alabama. "The judge is in
a difficult position because he does not want a defendant going to trial with
lawyers he doesn't like or trust, or lawyers who have issues like conflicts of
But ultimately judges, not defendants, control the court calendar.
"The court has to gain control of the case and not let it petrify," said Mr.
Turley, the constitutional law expert. "This is like a railroad saying, 'This
is an awful train wreck.' Well, the train belongs to the railroad."
The delays have been agonizing not only for Mr. Davis, but for the family of
"You can just imagine losing a child or a brother and then something like this
happens, for more than 10 years," said 1 of his 4 brothers, Malcolm Reaves.
"It's been so long."
Mr. Reaves suggested that the delays might be part of a defense strategy by Mr.
Davis. "It's all about buying time," he said.
Mr. Davis, though, insists that he would like nothing more than his day in
court. In jail, he has been written up enough times, for offenses that include
insulting guards, possessing pornography, and writing in his jail-issued Bible,
to be kept in a segregated cell until 2021. "I'm in a position where you have
to violate just to stay sane," Mr. Davis wrote in a letter to The New York
Times after a request for an interview went unanswered by jail officials.
Ms. Davis contends that her son's treatment has been abusive and that he has
not regularly received prescribed medications for depression and anxiety. In
2013, his lawyers filed a motion complaining that the jail was not allowing him
to review all his own case files.
"My son has been locked away and kept from me for 10 years like an impounded
dog or an unwanted animal," Ms. Davis said.
Houston County Sheriff Donald Valenza, who runs the jail, did not respond to
numerous phone calls and emails.
In a letter to his mother in June of last year, Mr. Davis described his
treatment as "some type of mockery."
"I feel like a foolish mascot," he wrote, "parading to and from the
(source: New York Times)
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