an ordinary crime
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Thoughts on An Ordinary Crime by Bennett Gershman

A former prosecutor, Gershman is professor of law at Pace University School of Law and the author of two major books on the criminal justice system, Trial Error and Misconduct and Prosecutorial Misconduct.

This case may be one of the darkest examples of how the criminal justice system breaks down, through both carelessness and malevolence. Told mainly through videotaped interviews of virtually all the key participants, "An Ordinary Crime" is riveting, intriguing, and ultimately profoundly depressing.

"An Ordinary Crime" documents many of the most familiar themes in criminal procedure: the vagaries and dangers of eyewitness identifications; prosecutorial and police manipulation of the truth; an accomplice giving false testimony for the prosecution pursuant to a sordid plea deal; a defense lawyer indifferent to the truth; an arrogant and dishonest judge; and an appellate tribunal rubber-stamping a patently erroneous and unfair conviction.

Beyond the familiar, "An Ordinary Crime" describes a series of bizarre and extraordinary events:

  • the confession to the crime by the real perpetrator less than 48 hours after a jury convicted the wrong man, and his subsequent recantation one day later;

  • the courage of one of the defendants in taking the stand to exonerate his co-defendant; the prosecutor's concession that he made a mistake, and then change his mind the next day;

  • the accusations and recriminations between two local police departments over the handling of the case; and the fact that a young man was convicted and sentenced to 43 years in jail because he had the wrong name.

What the documentary...demonstrates is how severely limited are the U.S. remedies for reviewing an allegedly wrongful conviction... The documentary effectively exposes the inherent dangers of eyewitness testimony. Two witnesses--Charles Woodard, the manager of the finance company, and Alice Wise, the secretary who was shot in the head and blinded in her left eye--gave strong testimony describing the crime and identifying a teenager named Terence Garner as the shooter. This is the type of eyewitness testimony that no matter how unreliable--and there are many reasons to discount the accuracy of their identifications--nevertheless has a powerful impact on a jury, and typically is upheld on appeal.

That eyewitnesses make tragic mistakes is now overwhelmingly documented. In hundreds of recent cases, DNA evidence has proved conclusively that eyewitnesses identified the wrong person. These eyewitnesses were as certain of their identifications as Woodard and Wise. The documented cases of misidentifications reveal that there is no correlation between a witness's certainty and her accuracy. Moreover, it is commonly known that once a person has made a positive identification, he or she sticks to their story, no matter how much evidence is produced to contradict it. So it would be very surprising if Woodard or Wise were to admit a mistake, or acknowledge a doubt. They are convinced that they have identified the right person. They are aware of the serious consequences of their testimony, which makes it even more unlikely that they would retract their identifications.

The circumstances of Woodard and Wise's pretrial identifications of Garner are troubling. Woodard apparently picked out Garner's picture from a set of photographs shown to him five months after the crime, according to Woodard in "two minutes," but according to other witnesses after he hesitated for a much longer time. Wise could not identify her assailant from phoptographs; she identified him following the discredited practice of a police-arranged "show-up," where he was seated in prison garb next to co-defendant Kendrick Henderson.

The inherent unreliability of identification evidence is reinforced by an increasing body of scientific evidence demonstrating that the capacity of witnesses to recall and remember an event is undermined by the violent circumstances of the event. In fact, Garner's defense counsel sought to call as a witness an expert on the psychology of eyewiteness identification to testify to factors undermining eyewitness accuracy, including the frightening circumstances of the crime, the cross-racial nature of the identification (Woodard and Wise are white; Garner is black), and the lengthy delay between the crime and the identifications. The judge turned down the request.

Also undermining Woodard and Wise's identifications was the testimony of a customer, Bertha Miller, who corroborated many of the details of the crime, but could not identify any of the perpetrators. Miller admittedly was very nervous during the robbery, and said she was intimidated at the trial by the testimony of Woodard and Wise.

But the critical point of Miller's recollection, which shockingly was not brought out at the trial by Garner's defense, was not that Miller was unable to make a positive identification of anyone, but that Miller was absolutely certain that Garner was not one of the participants. As Miller told Frontline, "I practically helped raise Terence Garner. I knew him. And it was not him."

A viewer has to wonder whether Garner is the type of person who would commit this type of violent crime. The shooter apparently yelled: "Should I kill the bitch." He was desribed by his accomplices as an impulsive lunatic. Garner, interviewed on Frontline, comes across differently. He said he did not know Kendrick Henderson or Richard Riddick, his so-called accomplices, and had nothing to do with guns. Indeed, the prosecution produced no evidence at the trial to show, imply, or even hint at any relationship. A teenager at the time of the crime, Garner had no criminal history that would even remotely suggest a vicious propensity to shoot a woman first in the chest, and then hold the gun to her head and casually pull the trigger. Morever, when the police first to Garner's home, he voluntarily approached the police, asking what they were doing baging on his mother's door. This is not the action of a guilty person. And why would a teenager with no criminal background, and no relationship to any of the other perpetrators, be chosen to participate in an armed and violent robbery?

The identifications are also contradicted by co-defendants Henderson and Riddick, who were interviewed. Clearly, neither person has any present motive to falsify, or help Garner. Why would they maintain that Garner was not involved in the crime? Despite the advice of his lawyer, Henderson voluntarily took the stand to testify that Garner was not involved. Henderson had no reason to give such testimony, particularly when to take the stand subjected him to seriously crippling consequences, unless his testimony was true. And despite the vicious cross-examination by the prosecutor in attempting to show some connection between Henderson and Garner, and thus a motive by Henderson to help Garner, the prosecutor was unable to suggest any reason for Henderson to lie. The only explanation District Attorney Lock gave Frontline for Henderson's testimony was the terse comment that he does not believe anything Henderson says.

And almost conclusively establishing that Woodard and Wise's identifications are erroneous was the confession of Terence Deloach, made to Wayne County police officers, that he, along with his cousin Richard Riddick, and Kendrick Henderson, held up the finance company and that he shot Alice Wise. Deloach's confession was so detailed, and so self-incriminating, that it impelled District Attorney Thomas Lock, interviewed by Frontline, to call a press conference to announce that he had convicted the wrong person, and that he would ask the court to set aside Garner's conviction.

Also, from his violent background, it is logical that Deloach was the gunman. He had a long record for violent crimes, amd had just been released from prison for shooting someone. He was initially identified by Henderson, who who named two people as his accomplices--Richard Riddick and Riddick's cousin, Terence. It was so obvious that Deloach was involved in the crime that DA Lock and the police incredibly invented a new theory, namely, that there were four perpetrators, including both Garner and Deloach. This four-perpetrator theory was preposterous, as Lock himself appeared to acknowledge when he said, almost apologetically, that the only difficulty with the four-perpetrator theory is that there is no evidence to support it.

It was Henderson's initial identification of one of his accomplices as "Terence" that produced the chain of events that led to Terence Garner's arrest, conviction, and incarceration. Piecing together the facts to demonstrate precisely how Terence Garner became a suspect is difficult. Apparently the police focused on Garner simply because his name was Terence. The police at some point obtained a picture of him which was placed in the photo line-up from which Woodard made his identification. Prosecutor Lock and Police Officer Jason Barbour, who refused to be interviewed for Frontline, suggested that in his initial interview, Henderson referred to Terence as "Dukeboy." While Garner did use that nickname, it appears that the Henderson never made the statement, and the police have concocted the story to explain why they went after Garner. Henderson denies telling the police that Terence used the nickname "Dukeboy." His denial seems truthful. The recorded police interview with Henderson contains no reference to the name "Dukeboy." And when Johnston County police officials asked the Wayne County Sheriff's Office for assistance in locating "Terence," they stated that they were looking for a person named Terence, "last name unknown." There was no mention of the name "Dukeboy," an omission that is fatal to the credibility of Johnston County law enforcement. Clearly, Johnston County law enforcement officials have sought to create a solid factual basis for the arrest of Garner when no basis in fact existed.

Just as Kendrick Henderson gallantly tried to help Garner at a substantial cost to his own freedom, Richard Riddick's self-serving plea agreement with the DA Lock, and Riddick's perjured testimony at trial denying that he had a cousin, depicts the system at its most grotesque. Riddick, who was the ringleader of the robbery gang, apparently will be released from prison by the time the Frontline program is aired. There was no principled reason why the prosecutor would have made a deal with Riddick. Riddick failed a polygraph test (DA Lock tells Frontline that Riddick's score was "not that bad"). Law enforcement officials almost certainly knew Riddick was lying when he denied having a cousin. These officials most certainly knew that Riddick's cousin's name was Terence, and that Riddick's cousin, Terence Deloach, was a violent criminal who was most probably the shooter in the robbery.

The key to understanding the prosecutor's motivation to deal with Riddick is to appreciate a prosecutor's mindset when building a case. A prosecutor, and Lock is a good example, professes to be seeking the truth. That's the prosecutor's legal; and ethical duty. But in reality, a prosecutor is simply trying to establish his version of the truth, regardless of whether that version is the actual truth. Thus, if Lock believed that Garner was the shooter--and his reliance on Woodard and Wise's identification justified that belief--then he would seek to tailor other evidence to support that thesis. And any evidence that was inconsistent with that thesis would be disregarded or considered false. So, only if Riddick testified to Lock's version of the truth --ie, that Garner was the shooter--would Riddick be rewarded with a favorable plea deal, even if Riddick's testimony was actually false, as it clearly was. Riddick's defense counsel participated in this shameful subterfuge, encouraging Riddick to stick to his version, and cautioning him that if he denied Garner's was not involved, which Riddick knew was the truth, he would not get his deal.

Indeed, one of the most telling moments in the Frontline program is watching Lock hesitate, and appear almost dumbfounded, when the interviewer asks him whether he ever checked to determine if Riddick had a cousin. After a very long silence, Lock answers: "I don't know that it's easy to confirm the name of every cousin that a suspect in a case may have." When Lock was asked whether Riddick's false testimony denying that he had a cousin made Lock skeptical about the rest of Riddick's testimony, Lock again hesitated for a long time, again appearing nonplussed. He acknowledged that he did not know why Riddick may have told "that one lie." But clearly Lock knew that this "one lie" was the linchpin for all the other lies; Riddick lied about not having a cousin because his cousin was the shooter in the robbery, not Garner.

But while the prosecutor and police played major roles in subverting justice, the principal obstacle to a fair and truthful verdict is the trial judge, Knox V. Jenkins, Jr. Interviewed by Frontline, he is trumpeted as one of the most politically powerful figures in the state. First elected eight years ago, he planned to run for reelection the year of the Garner trial. Indeed, it appears that he viewed this trial as a chance to promote publicly his near-obsession with teenage violence. He even asked a local newspaper reporter, Glenna Musante, to cover the trial, an unusual overture by a judge. And he apparently confided to that reporter well before the conclusion of the trial that Garner was guilty of this "horrible crime," and that Garner was an example of vicious teenagers that needed to be put away. It is very likely that the reason DA Lock did such an abrupt turnaround after initially declaring in the press conference that the real perpetrator had confessed and that Terence Garner was wrongfully convicted was a private lecture from the judge, probably berating Lock, as the judge put it, for his "premature statement." And despite an overwhelming record at the post-conviction hearing supporting, at the very least, a new trial for Garner, Jenkins denied the motion, which was affirmed by the North Carolina Court of Appeals.

The availability of other remedies for Garner is now questionable. Some observers believe the book is closed. However, a federal petition for habeas corpus relief raising various constitutional violations offers a possible legal route, particularly in light of Riddick's materially false testimony denying the existence of a cousin. If the government officials involved in the investigation and prosecution knew or should have known that Riddick's testimony was false, and if the testimony is found to be sufficiently important to the jury's verdict, then due process of law would be violated and Garner would be awarded a new trial.

Additionally, if Garner's case is considered to be one of those very limited instances in which a sufficiently strong showing of actual innocence has been made, this by itself may establish a constitutional violation and require judicial correction.

What the Frontline documentary also demonstrates is how severely limited are the U.S. remedies for reviewing an allegedly wrongful /onviction once the appellate process has been exhausted. The U.S. system holds that by providing abundant procedural protections for criminal defendants, the chances that an innocent person will be wrongly convicted is minimal.The English system, by contrast, has a special judicial commission with the unique mandate to review convictions that raise particularly compelling claims of actual innocence. If a conviction in the U.S. raises a compelling claim of innocence after all judicial remedies have been completed, the system ordinarily defers to the clemency or pardon powers of the executive branch. But given the compelling pleas of the robbery victims in this case, it is very unlikely for political reasons that any executive will intervene. And if no remedy is available, an innocent young man will have lost 30 years of his life for having the wrong name.

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