an ordinary crime
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interviews: richard rosen


A professor of law at the University of North Carolina at Chapel Hill, Rosen has followed the Garner case from the beginning and has been consulting with Garner's appellate attorney, Mark Montgomery. He discusses why the evidence indicates Garner is innocent and outlines some of the troubling elements in the investigation, the trial, and Terrance Deloach's confession and subsequent recantation.

How do you see the case?

I see the case as there's an innocent guy, clearly, in prison for what, 40 years? And the system doesn't want to let him out.

Where did it go wrong?

I think mistakes are made in trials. We know now that not everybody who's convicted is in fact guilty. I mean, there's been enough people freed from death row and from prisons that it's a fact of life in the United States today, and we accept that. To me, reading the transcript ... I could never figure out why Henderson would say Garner was innocent, if in fact Garner was not innocent. They didn't know each other. ... My experience is felons don't go out of their way to help people they don't know. ...So I certainly had doubt. But you had eyewitnesses and you had Riddick's testimony, and it was clearly bought testimony. But that's not unusual either. There was nothing that unusual about the trial.

But when they discovered Deloach living at the place that Henderson had sent the police to, where Keith Riddick's cousin was living... [At] that moment, what you would hope would happen, it'd be the system would stop. Everybody would take a step back and would say, "Wait a minute. What's going on here? Do we have the wrong guy?" In fact, that was the district attorney's first reaction: "I think we have the wrong guy." And you would hope from that would be a real inquiry into that. I thought the post-conviction motion, the motion for appropriate relief, was a farce.

What are your thoughts, [your] guess on what transpired between confession/recantation of Terrance Deloach?

I think the Johnston County law enforcement officers, decided that they had to protect their conviction. And they, the district attorney's office and the police, took steps -- not to find out the truth -- but took steps that they felt were needed to keep their conviction. That's what I think happened.

The question is, why would Henderson lieăget up there and lie to save somebody he doesn't know?

Exactly how that happened, I don't know. But you've got them taking Deloach from the Wayne County detectives and isolating him from them. They're never allowed near Deloach again. They're viewed as the enemy and that's strange; they ought to be working together on this. You have this ridiculous charge of obstruction of justice being lodged against Deloach. I've never heard of that in this situation. He's being charged with obstructing justice because he confessed to a crime. That's silly. And in fact, the charge was eventually dismissed.It clearly appears to be an attempt to get him under control of the Johnston County folks, keep him from ... get him lawyered up with a friendly lawyer and to keep him from Garner's attorneys and anybody else who might be objective in this case. Then they interrogate him. Now, think about this interrogation. It seems to me that what they're saying is, "Gee, Mr. Deloach, you really didn't commit that crime, did you?" And how many hours does it take them to get him to recant? And they then ... the tape of that interrogation is no good, is not useful, so we really don't know what happened inside there ...

They had to turn Deloach around.

Yes, they had to tell Deloach, "Please tell us that you didn't commit the crime."

But he did...?

He did, of course he did. Well, I mean, they say he did. He doesn't testify to that at the post-conviction hearing. I was surprised, because I had assumed they at least could get him to say, "I didn't commit the crime, they forced me to confess to it." He pled the Fifth, so I assumed they did, but they also lost the tape recording or they were not able to tape record the interrogation. So all we have is their word that he did.

So who might have been behind this? ...

I don't know. Obviously, when that happens behind closed doors, you can't... I don't know whether it's the trial judge who clearly was not interested in delving into the possibility that Deloach was the culprit. I don't know what the district attorney's role was. I don't know which police officers were most actively involved. But clearly there was a collective decision, or at least an agreement with somebody's decision, to treat this as an unwarranted interference with the judicial processes of Johnston County. ...

They say, maybe both Terences ... there were four perpetrators.

There might have been 70 people there too. But they had no evidence for that beforehand. And clearly, from reading the transcript, it looks like an after-the-fact fabrication that there were four robbers involved. You read Riddick's sentencing transcript. Riddick is being led along that path and he's being told basically, "We'll give you a light sentence if you say there were four people involved." And you could see him rolling his eyeballs on paper, saying, "Yes, yes, Judge, there were four people involved. OK, Judge, whatever you say, give me my six-year sentence."Of course he's going to say that. But there's really no evidence for that. And in fact if there were four people involved and if they believed that, they would have charged Terrance Deloach with armed robbery -- and they never did. ... They let him go. They let him go to rob again in New York.

Why did Deloach plead the Fifth?

Clearly if you are allowed to plead the Fifth, if your answer could subject you to criminal prosecution. If he admitted he confessed falsely, in their view, he would be incriminating himself for that charge. If he admitted participation in the robbery, he'd be incriminating himself in that charge. So he did what I'm sure his lawyer advised, which is "Keep your mouth shut." ... Anything he said was subjecting him to legal jeopardy and it was a wise move for himself for him to plead the Fifth at that point.

He didn't say Garner wasn't involved.

... When you're facing sentencing for a crime like this, and you've got the prosecution pushing you to say one thing when you've already said another thing, pleading the Fifth is a wise thing to do. Of course, it can send an innocent person to prison. But from Riddick's personal point of view, that was smart. ...

What about the eyewitness testimony of victims ?

My understanding of the scientific testing and scientific evidence in eyewitness testimony is that any eyewitness can be mistaken. Eyewitnesses who were subject to stress, to being attacked, are more likely to be mistaken. I felt both of these eyewitnesses were... They were certain, and were wrong.

Miss Wise is so sure.

So was Jennifer. So was Jennifer Thompson in the Ronald Cotton case. She was very sure of herself. She was wrong.[Editors' Note: See FRONTLINE's previous report on eyewitness identification errors, "What Jennifer Saw."]

That's all that mattered to the judge.

When you see somebody who's been badly hurt in the courtroom, I think it's a very human response to want to help them, to support them, to make them feel better, to show them that you trust them and that you believe them. And this is an innocent woman who was working at her job and came very close to getting killed, [who] did nothing wrong. She's in the courtroom, so that's a very understandable reaction. If in fact, if her testimony were correct it wouldn't be that bad. But once the other evidence comes out and it's clear that her eyewitness identification is wrong, then there's a problem with relying solely on that.

So what are the things that are wrong in this investigation?

... The moment the Wayne County detectives go to the address Henderson sent them to at the beginning, and a door gets opened and there's a Terrance sitting there who is the cousin of Riddick, who is from New York, who has a record for armed robbery -- that's the moment I'm convinced that Garner is innocent.

But it didn't convince them.

I don't think anything that could have come up would have convinced them, so long as the eyewitnesses said in fact it was Terence Garner who did the crime. When I read the transcript, what I see is a determination that the eyewitnesses are going to be believed, no matter what.

The DA said, "I think we convicted wrong."

That is to Tom Lock's credit. But it didn't last.

Why not?

I don't know. Certainly something happened before the hearing, because again, at the hearing, clearly the prosecution was fighting to protect the conviction. I don't know what happened in there. But something did, between that one moment when Tom Lock looked at the evidence and said, "God, if there was a Terence there at that address who has confessed to the crime, we have to have the wrong guy to the beginning of that hearing." And I don't think it was just Terrance Deloach being convinced to retract his confession ... by lengthy interrogation and isolation by the Johnston County officers.

What do you think?

If I had to guess, at some point when the eyewitnesses refused to back off, they either had to tell the eyewitnesses that their testimony wasn't good enough, or they had to protect the conviction.

Did race play a part?

I mean, it's hard to say. Clearly it was black men who committed the crime. There were white victims. I was disturbed by the treatment of Bertha Miller, who was the only black eyewitness. And the entire trial, the prosecution spent trying to discredit her. She was discredited at the post-conviction. There's part of me that thinks it certainly seems that ... the state or the prosecuting authorities and the police are unwilling to believe any black witnesses who say that Garner didn't do the case. But then again, they didn't believe the white Wayne County detectives, either.

Is this usual -- the behavior of Johnson County officials toward the Wayne County detectives?

I've never encountered this before. I think one of the reasons the Wayne County police officers were so upset after this was over is they've never been treated like this before. The notion that their interrogation was going to be subject to that sort of scrutiny by the state when they had done nothing different than they had done probably in hundreds of cases, where the prosecution had fought to validate their interrogation -- I think they were incredulous that ... the state had decided to attack them. ...

... This interrogation that the Wayne County police did, this was one of the softer ones. It is certainly not even near the edge of interrogations that the state is always claiming. They're always claiming that these are fine. But in this one, all of a sudden there was something wrong with it; and the absurdity of the state arguing that his confession should not be believed because he had some mental problems...

They misled him.

They misled him, which of course is accepted and accepted by the United States Supreme Court as a reasonable tactic in police interrogation. Apparently -- and I never quite understood this -- another reason not to believe him was because he attacked somebody up at Dorothea Dix Hospital. I mean, you've got this violent guy. He's got a record of armed robbery. They put him up at Dorothea Dix; he breaks a guard's leg, I believe, over some minor dispute. He's clearly vicious. He clearly fits the pattern of the sort of person who would shoot Alice Wise.If you think about it, her shooting was unnecessary. Somebody with a real streak of violence in them shot her for no good reason, and apparently was thinking about shooting her again before one of the others talked him out of it. Now, gee, it's either what, a 19-year-old Terence Garner with a record for petty larceny, or it's this guy who is a serious armed robber, who clearly has a penchant for violence. There's a tough one. ...

Many people say this kid isn't guilty.

I don't think there's any doubt about it. I mean, if you believe eyewitness testimony and you are convinced by it, then you can believe Terence Garner at least could be guilty.If you have a healthy dose of skepticism about eyewitness testimony -- which I think people these days have to have, given all the DNA exculpations that have come after eyewitnesses have identified the defendants -- if you have that skepticism, then the evidence is all on one side. You've got a teenager with almost no record, who ... a small guy who's supposedly this leader of this gang of 20-something thugs, criminals, on one side. Or you've got an experienced armed robber who comes down from New York, who has a strong history of violence. It's not close which one it would be. And interestingly enough, if there had been no eyewitnesses, I have no doubt which one the state would want to prosecute.

Which one?

Terrance Deloach. And you can't get beyond the fact that Henderson, who has no reason to want to help Terence Garner, who certainly should be at the most afraid of Terrance Deloach -- afraid of whoever did the shooting -- tells the police that it's Riddick's cousin, Terrance, from New York; he's living with his girlfriend at this address. And somebody is living at that address and it's Terrance Deloach, the armed robber from New York. I can't get beyond that.

Coincidence?

Of course not. Of course not. And it's clear that the state has done everything to try to link Garner and Deloach. I mean, they've desperately searched Goldsboro for evidence that the two of them were friends, did crimes together, even knew each other. And they haven't come up with a shred of evidence that the two knew each other at all. ...

How was it Alice Wise first identified Terence Garner as the man who shot her?

My memory is that she went to the courtroom to see the preliminary hearing and she saw Garner and one other, I can't remember ... Henderson, I guess, coming into the courtroom and said, "Oh gee, those are the guys." And they're in jumpsuits from the jail. It's unclear in the record how many other people were around and what she was told; but that's an incredibly suggestive identification. They didn't use a lineup. She could not pick his picture out of a photo array. I view her identification as suspect because of that. On the other hand, she could identify him from a lineup and I'd still view it as suspect, because I don't trust identifications. ...

How di Mr. Woodard's identification come about?

... Mr. Woodard's identification came from a photo array, looking at a photographic array. And I believe his identification led to the arrest of Terence Garner. I don't know what happened and whether there was anything suggestive or not, or whether he was just mistaken.

It took him three minutes. ...

That's a long time. The state argues, of course, that that shows how careful he was being. I don't know why it would take three minutes to pick out the person that you saw.Again, though, even if there was nothing wrong with the identification procedure, there's a certain percentage of times it's just mistaken, especially in cross-racial identifications, and especially when it's a victim of a crime who's talking about what happened during an incredibly traumatic period.

What are your thoughts about the trial?

I don't know what happened at the trial. I don't know what happened around the identification. I don't know what happened with Riddick's testimony. I am disturbed to find out that Riddick failed a polygraph and they put him up anyway. Polygraphs are not admissible, but the police and prosecution use them all the time to make sure, supposedly, that their witnesses are telling the truth. They seem not to care with Riddick, whether he was telling the truth or not.And I don't understand how they can justify having him fail the polygraph and then just ignoring it. Why didn't that set off alarms? What was going on back there when he failed it? And that bothers me about the trial. Again, I found out about that since the trial. Reading the transcript of the trial, there's nothing that disturbing that's apparent except even on that transcript -- there's the question of why Henderson would say what he did if Garner were guilty. And it leaves you with an uneasy feeling in your stomach. But that doesn't mean the prosecution did anything wrong, or was immoral or acting immorally or illegally in any way.

I do feel that the post-conviction hearing was not an inquiry into who was guilty, but clearly was an attempt by the prosecution, the police in Johnston County, and the court to uphold the conviction. I don't think it was a fair hearing in front of an impartial decision maker.

Once another suspect emerged.

Once another suspect emerged, which you would hope is that everybody would take a step back and say, "We need to really... If we're going to use our subpoena power, we need to use it to find out the truth. We need to go to Riddick and we need to say to Riddick, 'Even if you lied before, tell us now what is the truth. Who was there? Who's the guilty person? Have we convicted an innocent person?'" That's what we all would hope would happen. I don't see a shred of evidence that that happened. ...

What will Innocence Project do?

We have a project in which students volunteer to work on cases in which prisoners claim innocence. And we've had a number of students who agreed to work with Mark Montgomery and to go down. They've been talking to witnesses there, reading through the files, helping analyze the case and helping us in every way possible. And I can tell you they're all absolutely convinced of Terence Garner's innocence. ...

What are your thoughts about how much chance for truth there is in having the same judge?

I think it's problematic. One of the things that sticks in my mind about this case is that, after the trial was over, the judge turned to Alice Wise and ... Mr. Woodard also, and told ... them how proud he was of their testimony and it was this great affirmation of them. Once that happens, I'm troubled by that same judge having essentially vouched for and put himself on the side of the eyewitnesses. However understandable that may be, I'm troubled by that being the judge having to determine that they were wrong.

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