Van Smith

By Van Smith

Published in City Paper, Dec. 10, 2013

James Owens is angry.

“I get pissed off every time I think about this,” the 53-year-old from Southeast Baltimore declares, sitting at a conference table in his lawyer’s office. “I don’t trust the cops,” he says, his glasses only slightly shielding the fury in his eyes, a thin mustache punctuating his vehemence. “Never have, after this happened, and I never will. I hate them.”

Looking at Owens, hearing his Baltimore accent stridently utter those words, it’s clear he’s simply telling it like it is. Twenty years in prison before being cleared of a murder conviction will make a man mad.

But Wendell Griffin, a 62-year-old also at the lawyer’s office meeting, is not the least bit angry. His bald pate rests smoothly above his kind face and soft eyes, a wispy gray beard on his chin. Griffin appears to be a gentle soul, and it seems perfectly natural for him to wax calmly and philosophically about his experience: “If the good Lord does things in such a way that I don’t even understand it,” he says, “then I just keep my faith and I move forward.”

The only hint at any bitterness at all comes in the very precise way Griffin describes how much time he served in prison before his murder conviction unraveled. Rather than say “more than 30 years,” it’s always “30 years, 10 months, and 23 days.

Both men, who’ve never met before, have taken the elevator 20 floors up a downtown Baltimore office building on the Wednesday afternoon before Thanksgiving to share their stories with a reporter. They come from worlds apart-Owens, a white man, comes from a section of the city that may as well be part of nearby Dundalk, while Griffin, who’s black, hails from West Baltimore-but what they share puts them in rare company: They both succeeded in showing they were unlawfully convicted of murder.

Along with a handful of others in the modern annals of Maryland murder – including Kirk Bloodsworth, the first American exonerated from death row thanks to DNA testing, and Michael Austin, who served 27 years in prison for a murder he didn’t commit – their experiences show how tragically flawed the justice system can be.

The only available surrogate for mending the damage done in such circumstances is money. The State of Maryland, for instance, gave Bloodsworth $300,000 after Gov. William Donald Schaefer pardoned him in 1993. Austin, who was pardoned by Gov. Robert Ehrlich in 2003, was awarded $1.7 million from the state for his wrongful imprisonment.

Owens and Griffin, though, have gotten neither gubernatorial pardons nor compensation from the state. So both have sued, claiming that the same findings that freed them in criminal court-that the state committed Brady violations, so named after the 1963 Supreme Court case Brady v. Maryland, which established defendants’ right to obtain state’s evidence that may help prove their innocence or be used to impeach state witnesses-should count in civil proceedings that seek to mitigate the damage they suffered from decades in prison.

While the lawsuits Owens and Griffin have brought are notable for the intrinsic value of the lessons they hold for proper police and prosecutorial work, they also jump for attention because of who got sued. Among the defendants in their cases are some of Baltimore’s most famous cops: detectives profiled in David Simon’s 1991 book, Homicide: A Year on the Killing Streets, which chronicled the Baltimore Police Department homicide division’s work solving murders in 1988.

Owens and Griffin say they’ve never read Homicide, but while they were in prison, it catapulted quickly to the pinnacles of the true-crime genre and, starting in 1993, to the airwaves, in a television-series adaptation by NBC called Homicide: Life on the Street. The success of both meant that some real-life detectives became big names far beyond the Baltimore criminal justice circles to which most celebrated local officers’ fame is confined.

Owens’ lawsuit takes aim at Jay Landsman, Thomas Pellegrini, and Gary Dunnigan, three of the detectives whose work was described in Homicide. Two of them inspired characters in the television show: Landsman was the basis for Det. John Munch, played by Richard Belzer, while Pellegrini inspired Det. Tim Bayliss, portrayed by Kyle Secor.

Also named as a defendant is former Assistant State’s Attorney Marvin Sam Brave, who Owens claims conspired with the detectives, at times, to coerce state witnesses to lie and withhold Brady material.

Griffin’s case, meanwhile, targets Jerry Landsman – Jay Landsman’s brother, who was not in the book – and two detectives who were featured in Homicide, Donald Kincaid and Edward Brown. In the television show, Kincaid became Det. Beau Felton, played by Daniel Baldwin. Griffin claims the three committed Brady violations by withholding from the prosecutor-and, by extension, from him-numerous witness statements that contradicted testimony that led to his conviction at trial.

Attempts to reach the defendants in both cases were unsuccessful, and their lawyer, Daniel Beck of the Baltimore City Law Department, did not respond to a request for comment. But Simon, reached by email, wrote: “If they withheld Brady material, that’s dead wrong. If evidence now clears men who were innocent and were imprisoned, that is tragic and grievous. And if the real killers went undiscovered, then the injustice is compounded.”

Still, based on the time he spent with them in 1988, Simon writes that “I had an overall sense that it was hard enough for Baltimore detectives to obtain guilty verdicts on cases in which evidence was substantive or even, at times, definitive.” He calls the detectives whose work he watched that year “professional,” and characterizes the “oversight of their cases” by the state’s attorney’s office as “conscientious and appropriately cautious.”

But “if the allegations hold” in the cases brought by Owens and Griffin, he adds, they “do not reflect that dynamic,” and “I’ll certainly be interested to follow the civil cases and see both the allegations of the plaintiffs and the counter arguments of the defendants fully explored.”

The first chapter of Homicide opens with Jay Landsman and Pellegrini cracking wise about a small bullet hole in a dead man’s head.

“Here’s your problem,” says Landsman, having turned the man’s head to reveal the wound. “He’s got a slow leak.”

“You can fix those,” Pellegrini responds.

“Sure you can,” Landsman says. “They got these home repair kits now. . . . Just like with tires. Comes with a patch and everything else you need. Now a bigger wound, like from a .38, you’re gonna have to get a new head. This one you could fix.”

This kind of gallows humor is an engaging aspect of Homicide, but it is not what set the book apart from the pack. That was accomplished by its nuanced descriptions of the detectives themselves and the way they worked, revealing them to be more complex than the stereotypical gumshoe who relies on keen intuition, incisive intellect, and by-the-books protocol to take killers off the streets. While the crime-solving dynamics described in Homicide include those noble elements, it also portrayed the detectives as flawed, sometimes willing to play dirty, since cutting corners or deploying deceptive tactics-always with an eye on maintaining plausible deniability-can help keep the guilty from escaping charges and boost the division’s clearance rate with arrests for open murders.

In Homicide, Simon writes that “with rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art.” A detective “follows the requirements of the law to the letter-or close enough so as not to jeopardize his case. Just as carefully, he ignores the law’s spirit and intent.” And all of this lying and mind-twisting is “street legal. Reasonable deception the courts call it. After all, what could be more reasonable than deceiving someone who has taken a human life and is now lying about it?”

And so, the detectives solved cases, taking them from red to black on the big board in the office. Even without Homicide, though, the Baltimore murder cops of the 1980s were legendary. They linked killings to perpetrators at a prodigious clip, despite a street culture in which fewer and fewer people were willing to help cops catch criminals. Their average annual homicide clearance rate-the percentage of murders closed by arrests-was 76 percent that decade. That was more than the 72-percent national average at the time, and much better than now. In 2012, the clearance rate was 47 percent, far below the national rate of 62.5 percent.

But thanks to Homicide, what it took for detectives to keep up the clearance rate is well-examined – and now, with the convictions of Owens and Griffin exposed as bogus, the risks inherent in the detectives’ sometimes fast-and-loose methods have become manifest. Though rarely realized, they are large.

The best outcome is that evidentiary and investigative problems in a murder probe come to light after suspects are arrested but before they are indicted. As Simon wrote this summer in his blog, the Audacity of Despair, 22 of Baltimore’s 234 homicides in 1988-nearly 10 percent of them-“were cleared by the police department through arrest, but then later dropped by the state’s attorney’s office prior to indictment.”

Much worse is when the bad outcomes come to light years down the road, with reversals of illegally obtained murder convictions, meaning that either an innocent’s liberty is wrongfully taken while the murderer remains free, or the murderer, with the remaining evidence too slim for prosecutors to retry the case, walks out of prison early with a clean slate. When such reversals happen, they shake confidence in the system and raise suspicions that even worse outcomes are lurking out there somewhere-innocent people rotting in prison, unable to prove how their cases were fixed, while the true murderers get away with it.

Thus, the banter between Landsman and Pellegrini on Homicide‘s opening page provides a metaphor: a bad murder conviction can lose air over time, but there’s no easy home-repair kit to fix that flat. So right now in federal court, Owens and Griffin, who blew holes in their murder cases big enough to set them free after decades in prison, want to make Homicide detectives pay. Whether they’re successful remains to be seen, but the process they’ve set in motion assures that the detectives’ risky pursuit of justice airs lessons for cops, prosecutors, defense attorneys, defendants, and the public at large-since, though the chances are slim, anyone can end up on the wrong end of a wrongful prosecution.

“What has been happening to me, it’s sad,” Griffin says during the lawyer’s office meeting. For a man who was in prison for three decades of a life sentence until last year, when a judge signaled the Brady violations in his murder conviction would lead her to grant him a new trial, that’s an understatement.

Griffin likens the cops who pinned him for the 1981 murder of James William “Lucky” Wise, who died of two shots from a hunting rifle in Cherry Hill, to bullies.

“Seem like the bully kind of get his way for a little while,” he says. “And after a while, somebody, he comes through a brick wall and check the bully. And that’s what we’re doing right now,” referring to his federal civil rights lawsuit, which his attorney Charles Curlett filed on his behalf in November. “We’re checking the bully.”

In 2011, Griffin had sought DNA evidence to test, which he hoped would exonerate him, but none was available. Instead, his legal pursuit-spearheaded by the same veteran attorney at the Maryland Public Defender’s Office, Stephen Mercer, who did the work to win Owens’ motion for a new trial-turned up numerous witness statements in the homicide file of his case that should have been provided to his defense at trial, since Griffin could have used them to undermine the state’s theory of the case.

“The internal police records produced for the first time in 2011,” Griffin’s lawsuit states, “reveal that shortly after Mr. Wise was murdered on April 22, 1981, the police showed photo-arrays containing Mr. Griffin’s picture to two key witnesses,” and both “failed to identify Mr. Griffin.”

One of them, Annie Wyche, had told police she would recognize the shooter, since she’d come within 10 feet of him, and she provided a description of him, including the fact that he was carrying a gun that looked like a shotgun pointed down along his leg. But when presented a photo array, she pointed to a photo a Griffin and said, “it looks just like him, but it’s not him.” In a second photo array, with a more recent photo of Griffin, she still did not pick him out.

Wyche did not testify at the trial, but the other key witness that failed to pick Griffin out of a photo array-Mark Williams-did.

Williams had “stumbled upon the crime scene immediately after the shooting and saw a person from 10 feet away dragging the body of Mr. Wise,” the lawsuit states. The trial transcript has Williams telling the jury that “I saw a guy dragging another guy,” and was told to “go the opposite way” because “I didn’t want to see what was over there.” So Williams ran to a friend’s house and made sure the police were called. Asked whether he could see the man’s face who was dragging the body, Williams said, “not really. But I saw a shadow. I could describe the things which he was wearing”-“black-framed glasses with clear lenses” and “a black jacket and a pair of blue jeans.”

Griffin’s trial attorney, Rolf Quisgard, did not cross-examine Williams. But surely, if he’d known Williams could not pick Griffin out of a photo array shortly after the murder, he would have.

Griffin’s lawsuit asserts that the detectives suppressed the Wyche and Williams statements excluding Griffin as the shooter “precisely because” they “directly contradicted the police theory” that Griffin murdered Wise. What’s more, in a search warrant affidavit supporting the arrest of Griffin and the search of his home, Kincaid used Wyche’s physical description of Griffin-without mentioning that she’d twice failed to pick him out of a photo array.

The detectives on the case, the lawsuit continues, also suppressed other witness statements indicating that someone else may have murdered Wise and that conflicted with another key element of the state’s theory of the case-that Griffin was observed before and after Wise’s killing with a gun.

Faced with all of this, Baltimore City Circuit Court Judge Gail Raisin in May 2012, “having indicated to the parties that she was prepared to order a new trial” in Griffin’s case, the lawsuit explains, “granted an unopposed motion by the defense to modify Mr. Griffin’s sentence to time served. After more than 30 years, Mr. Griffin was freed from custody.”

Unlike Owens, though, Griffin’s murder conviction is still on the books. That’s because he decided to take a plea deal rather than wait for a new trial and sit in prison for another year or more before prosecutors dropped the case against him.

“Mr. Mercer had told me,” Griffin recalls, “‘Wendell, the judge going to grant you a new trial, but it’s going to be 18 months, as opposed to you getting out right now. It’s your choice. What do you want to do?’ And I think I’ve been out 18 months today.” He points out that, when he got out, he immediately realized that “I need to make myself marketable, and I need to get it pretty fast, before age is going to catch up with me and I ain’t going to be able to do too much.” So he got his commercial driver’s license, worked as a cross-country truck driver, and now drives a delivery van for a local construction company-all things he couldn’t have done if he’d waited in prison for a new trial.

While Griffin’s federal civil rights suit is newly filed, so the defendants have yet to respond, his attorney, Curlett, anticipates an atypical issue will be raised in the case: Since Griffin’s conviction formally stands, did he receive what’s called a “favorable termination,” allowing him to sue for damages?

“Wendell’s situation is unusual,” Curlett says, so “I fully expect that that is one of the issues that we’ll confront immediately.” Another attorney at the meeting, Laura Abelson, adds that calling Wendell’s outcome “anything other than an actual exoneration would be patently unfair.”

Despite the injustice he’s suffered, Griffin’s faith in the criminal justice system remains intact. “We have a good system,” he says, adding that “it leads up to a certain point where we can actually prosecute somebody for a wrong that they did.” But “in my case, in his case,” he says, nodding towards Owens, “it wasn’t done. They didn’t follow the process, the procedures. They violated those. And when you violate that, you destroy people’s lives.”

In 2011, as Griffin was just learning about all the undisclosed witness statements in his case, Owens filed a federal civil rights lawsuit claiming that the detectives and the prosecutor on his case coerced witnesses to perjure themselves at his trial, thereby knowingly putting on false testimony, and committed a host of Brady violations. In 2012, Owens’ case was dismissed.

U.S. District Judge George Russell, ruling from the bench at the conclusion of a motions hearing, said that Owens filed the suit too late, that he cannot sue the Baltimore City State’s Attorney’s Office, that the detectives did not have a Brady obligation at the time Owens was investigated and prosecuted, and that the facts Owens alleges don’t amount to civil rights violations. Now the case is on appeal, set for oral arguments in January before the 4th Circuit Court of Appeals in Richmond, with Curlett, Abelson, and another Baltimore attorney, Joshua Treem, forming the appellate team.

While the outcome of Owens’ lawsuit can’t be predicted, the facts of his flawed conviction are well-established.

Though no scientific evidence linked Owens to Colleen Williar’s brutal murder, in which she was beaten, stabbed, and strangled, a jury convicted him after trial testimony included a jailhouse snitch, Larry Oliver, who said Owens had discussed the crime with him, and the confession of James Thompson, who implicated Owens and was also found guilty of the crime in a separate, subsequent trial. Owens received life with no chance of parole-the first person to receive such a sentence under a then-new Maryland law.

In October 2008, after DNA testing of evidence cleared him, Owens was exonerated and freed. The DNA evidence also excluded Thompson, who was granted a new trial but was freed in July 2010 after receiving time served upon pleading no contest in the case.

What also came to light, as Owens’ appellate brief states, is that “the police and [Assistant State’s Attorney] Brave had withheld exculpatory evidence that showed definitively that” Thompson and Oliver “lied on the stand-repeatedly-during Mr. Owens’ trial, and the police and Mr. Brave had not only allowed this perjured testimony, but manufactured and induced it.”

Thompson, the brief continues, had told Landsman, Pellegrini, and Dunnigan “no fewer than seven different and materially conflicting versions of the events that supposedly surrounded Ms. Williar’s death.” Finally, mid-trial, “when Mr. Brave realized he was losing his case,” Brave told the detectives to try again with Thompson, and he finally gave them a version that “matched the physical evidence at the scene.” Yet, “none of these conflicted statements were disclosed” to Owens, so he could not “effectively cross examine” Thompson and show the jury how his story had changed again and again.

Oliver, meanwhile, testified after Brave had communicated with him over and over again about being rewarded in his own criminal matter in return for implicating Owens-yet at trial, Brave “knowingly elicited false testimony” from Oliver that “he had received nothing in return for his testimony,” the brief explains, telling the jury he did so only because “it was the right thing to do.” The defense knew nothing about the numerous interactions between Brave and Oliver about possible leniency because Brave did not disclose them, as required, and thus Owens’ trial counsel could not use them to discredit Oliver before the jury.

Beck, the defendants’ attorney, in his appellate brief argues that Landsman, Pellegrini, and Dunnigan acted at the time without any sufficient court decision that would put them “on notice that they were violating Mr. Owens’ constitutional rights by failing to disclose allegedly exculptatory/impeachment evidence to him,” saying “such a duty, at best, was with Mr. Brave.” He adds that Owens “has failed to identify other instances of similar misconduct” that would form “a plausible factual basis of a widespread practice of the particular unconstitutional method at issue.”

Legal wrangling aside, Owens wants his case to come back from Richmond and get a full airing in a Baltimore courtroom. “I’m not doing no settlement,” he says, “I want everything I’m after.” It’s the same absolutist gusto he demonstrated when prosecutors dangled a plea before him after he won his motion for a new trial. “I wasn’t pleading guilty to nothing,” he recalls, adding, “I told Mercer, when I went in and got that new trial, I said, ‘Look, we’re going all the way with this. I’m not going in there to plead guilty to anything.”

In a larger sense, though, whether or not Owens and Griffin are awarded millions of dollars by civil juries is beside the point. Money talks, of course, persuading police departments and prosecutors offices to train and oversee their staffs to avoid law-breaking when making cases. But so does public discussion of these issues-and lawsuits such as the ones brought by Owens and Griffin prompt that.

“Both of the cases demonstrate the extreme negative consequences of cutting corners and not following the rules,” explains Abelson. “I think Wendell has a good point, that we do have a good system. But the system requires that the parties in the system buy into it. And if you can’t trust that the system is really working, then you have innocent people who are convicted and spend large portions of their lives behind bars for crimes they didn’t commit. And these cases demonstrate how that happens.”

Clarification: Neither of the murders for which James Owens and Wendell Griffin were wrongfully convicted occurred in 1988, and thus neither were mentioned, much less covered, in Homicide.