Withheld Evidence Can Give Convicts New Life

On the morning of the Oklahoma City bombing, April 19, 1995, the U.S. Supreme Court issued an opinion sharply criticizing police and prosecutors in Louisiana for not turning over key material in the trial of a man sentenced to death for murder.

The high court was upset that authorities had withheld documents suggesting that Curtis Lee Kyles may have been framed for the slaying of a 60-year-old woman. “Fairness,” the court said, “cannot be stretched to the point of calling this a fair trial.”

Kyles spent 14 years in prison and twice came within days of being executed. Today he is a free man and has returned home to New Orleans, where he works as a bricklayer.

But what happened to him, as well as to others caught up in a justice system they believe favors prosecutors over the defense, provides a road map for attorneys hoping to save the life of Timothy J. McVeigh.

Legal experts say failure by authorities to turn over materials is the second most common reason for granting new trials, after allegations of ineffective trial counsel.

But reversals are rare. A study by the Habeas Assistance and Training Project, which helps defense attorneys, found only 270 instances in federal and state courts in the last 40 years in which convictions were overturned or new hearings ordered because prosecutors had withheld documents.

It is a coincidence that the Kyles case was decided on the very day McVeigh destroyed the Alfred P. Murrah Federal Building, killing 168 people and injuring more than 500 others. McVeigh has spent the last six years in prison, and earlier this month he too came within days of being put to death.

Then, just as in the Kyles case and others like it, federal prosecutors announced newly discovered FBI files.

Although McVeigh’s execution was delayed until June 11, few expect him to follow Kyles’ path out the prison door. He has confessed and earlier dropped all appeals, saying he was ready to die.

But stranger things have happened.

Who would have thought that Kyles would ever see the outside of a death row cell, much less breathe free air again?

He was caught with a red Ford LTD that belonged to Dolores Dye, the dead woman. Her purse was recovered from his trash at the curb in front of Kyles’ apartment, and the murder weapon, a .32-caliber revolver, was found behind his stove.

Then his defense lawyers stumbled across a lengthy police report and other material long buried in the case--some of which could be construed to clear Kyles.

The prosecutor, who still believes Kyles is guilty, said in an interview that the material should have been shared with the defense.

“It was my mistake,” said Cliff Strider III, a prosecutor in northern Louisiana. “I was a young prosecutor back then, and I screwed up.”

The withholding of police reports, witness statements and other documents can make a huge difference in a case’s outcome, defense attorneys say.

“A good defense lawyer goes back through all the law enforcement files he can get his hands on,” said Richard Burr, one of McVeigh’s appellate attorneys. “Through all of the prosecution files too. And sometimes years later after the conviction you get access to things you couldn’t get before.”

Mike Fawer, one of Kyles’ defense attorneys, said sometimes it is just luck. “I have another case of a guy right now that is just as bad. My guy is charged with killing his wife back in the 1980s, and they convicted him.”

Fawer said his client’s wife was strangled in her bedroom and that he was found tied up downstairs. He told police that an intruder had broken into the couple’s home.

But the man was found guilty in his wife’s death and given a life sentence. Fourteen years later, he obtained new documents under the Freedom of Information Act.

“They gave him this 50-page supplemental police report that nobody had seen before,” Fawer said.

It contained evidence of fingerprints of an intruder in the house and reports about another break-in that night at a neighbor’s home. Fawer’s client is now free pending further court review.

David Bruck, an attorney who helps other lawyers defend federal death row inmates, said they “are still not sure that everything has been turned over” in the cases of 20 other men housed with McVeigh on federal death row.

Bruce W. Gilchrist, who represents Juan Raul Garza, a convicted drug dealer and murderer who is the next federal prisoner scheduled to die after McVeigh, said that, as far as any new evidence goes, “anything is welcome, and things happen with time.”

Richard Dieter, director of the Death Penalty Information Center in Washington, said the burden is almost always on defense lawyers.

“The defense often has a sniff that something was not turned over and then goes to court,” Dieter said. “But it’s rare the government on its own initiative brings material forward. That is very rare.”

In Florida, for instance, Brett Bogle sits on death row after being convicted of raping and killing his girlfriend’s sister outside a Tampa bar in 1991.

But federal authorities held on to new evidence before turning it over to his appellate lawyer last year. The evidence suggested that what was believed to be the victim’s pubic hair found on Bogle’s clothing was a head hair, raising questions about whether he raped the victim. The defense wants a new trial.

In another case, Tommy David Strickler in June 1999 asked the U.S. Supreme Court for a new trial after his conviction in the slaying of a young woman at James Madison University in Virginia.

His lawyers said prosecutors had “failed to disclose” material to the defense, casting doubts about a key witness and disclosing contradictions between her statements to police and her court testimony.

But the Supreme Court ruled against Strickler, saying there was no “reasonable probability” that the jury would have voted differently had it known about the new material.

“The question is not whether the defendant would more likely than not have received a different verdict with the suppressed evidence,” the court said, “but whether in its absence he received a fair trial.”

A month later, the 33-year-old Strickler was executed. “I am innocent,” he maintained as they strapped him down. “I didn’t do it.”

In ruling against Strickler, the Supreme Court cited its earlier decision in the Kyles case.

There, the court determined that the missing evidence suggesting someone else killed the woman at a New Orleans grocery “would have substantially reduced or destroyed” much of the prosecution’s case against Kyles.

A lower appellate court judge, Carolyn Dineen King, had also said: “For the first time in my 14 years on this court . . . I have serious reservations about whether the state has sentenced to death the right man.”

Shortly after the September 1984 slaying in the New Orleans case, Joseph Wallace, better known as “Beanie,” told police that Kyles tried to sell him the dead woman’s car, which had been stolen after the shooting.

Police went to Kyles’ home and found the car and other evidence there. He was charged with capital murder. His first trial was held two months after his arrest and ended in a hung jury; at his second trial, Kyles was convicted and sentenced to death.

Two weeks after the conviction, according to prosecutor Strider, “the police department brought me more of their files and it included another statement from Beanie.”

That statement was inconsistent with details Wallace had earlier given Strider. Further, Wallace had admitted that he twice visited Kyles’ apartment in the days between the murder and Kyles’ arrest.

It became increasingly clear that Wallace feared Kyles because they were seeing the same woman, and, as the Supreme Court later said in its decision, “Beanie seemed eager to cast suspicion on Kyles.”

Strider conceded he was wrong not to give the new reports to the defense. “I had my own file sitting in a corner of my office, and I took these new reports and tossed them into the box without reading them.”

Yet Strider still believes Kyles is guilty: “Absolutely no doubt in my mind.”

Kyles’ appellate lawyers came across the new reports only after filing legal petitions to obtain the entire police and prosecution records.

“They claimed that it was an oversight,” said George W. Healy III, one of Kyles’ appellate lawyers. “They said they were too busy and didn’t have enough clerical help.”

He said the defense was told the new material would not help Kyles anyway, but the defense disagreed. “The theory was that Beanie was trying to set him up to get to his girlfriend,” Healy said.

Beanie was later killed himself.

And Kyles was granted a new trial. He was tried three more times--with three more hung juries. Finally, in 1998, prosecutors dropped the charges and Kyles walked out of prison and into the arms of his cheering family. Beaming in the afternoon sunlight, he said he wanted to hold his 10-day-old grandchild and eat a shrimp poor-boy sandwich.

“It was horrible what they did to him,” recalled his sister Lela Johnson. “It makes you lose a lot of faith in the justice system. But all of that is in the past, and God will take care of everything now.”