[Pnews] Herman Wallace - Did the Wrong Man Spend 40 Years in Solitary Confinement?

Prisoner News ppnews at freedomarchives.org
Fri Sep 27 11:04:52 EDT 2013

  Did the Wrong Man Spend 40 Years in Solitary Confinement?

          By Andrew Cohen

It is now only a matter of weeks, or days perhaps, before Herman Wallace 
dies of the liver cancer that is ravaging his body. He will likely die 
in prison, at age 72, without proper medical treatment, after spending 
nearly four decades in a 6' by 9' cell. He was placed in solitary 
confinement after being convicted in January 1974 of killing a prison 
guard at Louisiana's notorious Angola prison. Wallace is black. The 
guard was white, and so was each member of the southern jury that 
convicted him.

The case against Wallace was pitifully weak when it was presented to 
that jury; some of the constitutional infirmities at trial were almost 
farcical. But over the years the courts of that state, along with 
Congress and the federal courts, have constructed a mighty wall 
protecting that jury's verdict. Layer upon layer of procedural 
protections has been built around it so that today, as Wallace nears 
death, it is easy to see the vast gulf that exists here between law and 

And that, ironically, may be the most important legacy Wallace leaves 
from his miserable time on this earth. A member of the famed "Angola 3 
<http://www.amnestyusa.org/our-work/cases/usa-the-angola-3>," Wallace in 
life has been a symbol of many different things to many different 
people. He has generated more than his share both of pity and scorn. In 
death, however, he will become a symbol of a justice system that too 
often prizes finality over accuracy, but without the candor or courage 
to actually say so. The law says that Herman Wallace got a fair trial. 
But we all can judge for ourselves what that really meant to a black 
inmate in Louisiana in 1974.

*The Trial*

Wallace and three other black prisoners at Angola were charged in May 
1972 with the murder of a white guard named Brent Miller. The 
investigation into the crime was aggressive, naturally, and all of the 
witnesses, of course, were already incarcerated. There was trouble from 
the start. The prison warden and the associate warden feuded over how to 
proceed. At least one inmate later testified that he was beaten during 
the interrogations that followed. One coerced witness fingered another, 
who in turned fingered Wallace, who was already well-known to prison 
officials because of his work on the nascent Angola chapter of the Black 
Panther Party. Apart from the lack of evidence against him, Wallace was 
a perfect defendant.

Bloody fingerprints and a knife were found at the crime scene, but none 
of the prints belonged to Wallace or any of his co-defendants. The state 
police testified later that although they had on file the fingerprints 
of every Angola prisoner the bloody prints from the crime scene were 
checked only against the suspects that prison officials already had 
identified and just a few more people. Seven witnesses testified that 
Wallace could not have been at the scene at the time of the crime. Two 
other witnesses directly implicated Wallace; two others testified 
against him less directly. Not only was the testimony of these four 
inmates internally inconsistent, it also was inconsistent with the 
testimony each of the others had given.

At first, all four co-defendants were represented by the same attorney 
-- a clear and actionable conflict of interest. Then, midway through the 
trial, one of Wallace's co-defendants switched sides, made a deal with 
prosecutors, and became a government witness. During one recess, Chester 
Jackson left the courtroom as a defendant and returned minutes later, 
taking a seat with prosecutors at their table. The judge gave Jackson's 
stunned (now) former attorney all of 30 minutes to "regroup" before 
requiring him to cross-examine the man who just minutes earlier had been 
his client. Later, state attorneys would argue that this gave Wallace an 
advantage because the lawyer had inside information on his former client.

The trial lawyer later said that prosecutors never approached him to ask 
permission to talk with Jackson. Nor did the judge permit the defense to 
see two prior written statements Jackson had signed that might have 
impeached his credibility. In the version of the story Jackson offered 
at trial, he was able to offer details about the murder -- to implicate 
Wallace -- even though he said he was hiding behind a wall at the time 
of the crime. In one of the versions he had signed before trial, he had 
testified that he had seen, through a window, Wallace stabbing the guard.

In a case with no physical evidence and no confession, the testimonies 
of the other witnesses against Wallace were both crucial and tainted. 
One such witness suffered from schizophrenia, a fact hidden from 
Wallace's attorney. Another witness evidently was at one time during the 
investigation a suspect in the murder (another fact that was not 
disclosed at the time of the trial). Yet another inmate, who was not 
called as a prosecution witness at trial, had given prison officials a 
statement that might have helped exonerate Wallace. But that statement 
was never disclosed to the defense.

In the end, after quick deliberations, Wallace was convicted of murder 
and given a life sentence in Angola -- which meant decades of isolation 
in a 6' by 9' cell. To make matters worse, his lawyer then failed to 
appeal his conviction. It would take 16 years, until 1990, before an 
appellate court took a look at Wallace's case. And by that time, those 
procedural barriers had begun to pile up. More than 25 years after 
trial, a hearing commissioner reviewing the record of the case called it 
"the most disgusting thing I have ever seen." But it didn't matter. That 
commissioner's recommendation of relief was immediately, and virtually 
without comment, reversed.

*The Next 40 Years**: Louisiana*

What happened next, what happens so often when the flaws of old tainted 
trials are exposed to the light of day, is that the gatekeepers of the 
criminal justice system, the prosecutors and state judges, became more 
interested in defending the verdict than in testing its accuracy. From 
1992 to 2009, confronted with more and more compelling evidence of the 
constitutional failings of the trial, the Louisiana Supreme Court 
nonetheless refused on /four separate occasions/ to consider Wallace's 
claims for relief. To this day, the highest court in that state has 
never issued a substantive ruling on any of the material issues arising 
from one of the state's most infamous cases.

Worse, the few dissenting voices that emerged from decades of judicial 
review were promptly squashed. In 1999, one state appellate judge 
declared that witness Jackson's mid-trial switch from defendant to 
prosecution witness suggested the presence of an undisclosed deal with 
the state. In 2006, another state judge recommended that Wallace's 
conviction be overturned because the defense was never told at trial 
about "material impeachment evidence" regarding Hezekiah Brown, the 
second primary witness against Wallace. When Louisiana's appellate 
judges reversed these rulings, they did so with virtually no substantive 
legal analysis.

Wallace's last chance for relief is now pending in federal court. The 
state's brief is a classic example of the types of procedural arguments 
states now use to block meaningful appellate review. Twenty-six pages of 
Louisiana's 64-page brief, for example, are devoted to reminding Chief 
U.S. District Judge Brian A Jackson that he is duty-bound to reject 
Wallace's claims unless he finds that the Louisiana courts were both 
"incorrect" and "unreasonable" in their application of the law. No 
matter how egregious those state court rulings may be, Louisiana argues, 
they are presumed to be correct and Wallace must prove otherwise by 
"clear and convincing" evidence.

Trial prosecutors failed to tell Wallace about a deal with witness 
Hezekiah Brown? No matter, state lawyers now argue; even if such a deal 
occurred, it was between the prison warden and the witness, and not 
between prosecutors and the witness. Brown received special privileges 
in prison after he incriminated Wallace? Received weekly deliveries of 
cigarettes and other favors? No matter, state lawyers now argue, because 
there is scant proof that any agreement existed between the warden and 
the prisoner /before trial/. There is scant proof because all of the 
witnesses now are dead and because Wallace's attorney never appealed the 

So inmate Brown, who was once a suspect in the murder of the guard, 
later testified against Wallace and received extensive benefits from the 
warden. Brown was removed from the general prison population. The warden 
wrote letters on his behalf for parole. And decades later, the warden 
testified that he had  promised Brown aid before trial because "he had 
cracked the case for us." Yet none of this was enough to convince the 
state courts of Louisiana that Brown's testimony might have been tainted 
and that, even if it weren't, that Wallace was entitled to know about 
these arrangements at the time of trial.

The state court review of the Wallace verdict, in other words, was 
deliberately indifferent. But the law accounts for this. It's why there 
is a federal habeas review -- a procedural mechanism that permits 
federal judges to give men like Wallace a fairer and more neutral 
evaluation of their claims. But here, especially, lawmakers and judges 
have built walls separating law and justice. The Wallace case is a prime 
example of the ways in which the Antiterrorism and Effective Death 
Penalty Act <http://www.fas.org/irp/crs/96-499.htm> and other statutes 
have undercut the strength of the Great Writ of Habeas Corpus 
<http://prospect.org/article/withered-writ>, a building block of Western 

*The Next 40 Years: The Feds*

Wallace filed his last appeal in 2009. It took 18 months for Louisiana 
to respond. And then it took more than two years -- until September 13th 
of this year, two weeks ago -- for U.S. Magistrate Judge Stephen C. 
Riedlinger to issue a ruling on the merits denying all of Wallace's 
claims for relief. That ruling, styled as a "Report," is a 65-page paean 
to form over substance, an example of how diligent the law can be in 
avoiding a search for the truth. First, there was the obligatory 
recitation of the statutory and case law that has whittled down to a nub 
the scope of the writ of habeas corpus 
<http://prospect.org/article/withered-writ>. Then there was the logic. 
Here is just one example:

    Petitioner asserted that in 1998, 14 years after he was convicted,
    he obtained documents discovered by co-defendant Woodfox which
    indicated that the State suppressed evidence that Warden Henderson
    provided Brown favors and promised to help him obtain a pardon in
    return for Brown's testimony at the petitioner's trial..

    The foundation of the petitioner's /Brady /claim is centered on
    testimony of Warden Henderson and corrections officer Bobby Oliveaux
    at Woodfox's 1998 retrial. Oliveaux testified that Brown was housed
    at the dog pen and received cigarettes, birthday cakes and incentive
    wages. Warden Henderson testified essentially that at some
    unspecified time prior to Brown's trial testimony he promised to
    help Brown obtain a pardon...

    Wallace's /Brady /claim that the State failed to divulge the fact
    that Brown had received "favors," such as desirable housing in
    exchange for his testimony, is without merit. Suppression exists
    only where a defendant did not - and could not - know about the
    essential facts that would enable him to take advantage of the
    evidence... Garretson, the petitioner's attorney, testified... that
    prior to the petitioner's trial he was aware of the favorable
    treatment Brown was receiving (Citations omitted by me)

There is a lot going on here so let me be brief. First, the magistrate 
cites unfavorably the length of time it took for Wallace to make his 
claim -- 14 years -- without acknowledging that Wallace's attorney was 
to blame for that delay by failing to appeal the original verdict. Then, 
the magistrate denies Wallace relief on the ground that this lawyer was 
aware of Brown's special treatment at the time of trial. This is the 
same lawyer, mind you, who in addition to not appealing his client's 
murder conviction also failed to recuse himself from representing all 
four co-defendants at the start of the trial. In the magistrate's 
revisionist history, under applicable legal standards, this lawyer, of 
all lawyers, is presumed to be both diligent and competent.

Here from the magistrate's "Report" is another example of this sort of 
warped reasoning countenanced by current federal review standards:

    Petitioner has not carried his burden to establish that evidence [of
    witness Brown's deal] was suppressed.... Warden Henderson
    emphatically denied that an agreement had been struck with Brown.
    Then... he testified that nothing was promised to Brown initially,
    other than protection. Warden Henderson testified that sometime
    after that... he told Brown he would support a pardon application.
    Later, Warden Henderson agreed with defense counsel that promises
    were made before Brown testified. Obviously, this testimony was

    Even assuming, without deciding, that the petitioner has established
    that the prosecution suppressed evidence that Warden Henderson
    promised Brown help with a pardon in exchange for his testimony
    against the petitioner, there is no likelihood of a different
    result. Brown's testimony was consistent with Jackson's testimony,
    the co-defendant who testified on behalf of the State against the
    petitioner. Moreover, Brown was a neutral witness.

See what's happening here? Even though the warden ultimately conceded 
under oath that there /was/ a prior deal with Brown, and even though 
logic and common sense tell us that such a deal existed, the magistrate 
instead concludes that this evidence is "inconsistent." Then he labels 
Brown, the inmate who first was a suspect in the murder and who later 
had cigarettes delivered to him by prison guards, to be a "neutral 
witness." This is not a searing search for truth and justice. This is 
not a meaningful review of a trial record. It is instead a /post-hoc/ 
rationalization of a dubious status quo.


Terminally ill, Wallace finally has been removed from solitary 
confinement. There have been calls from public officials and others for 
his "compassionate release" from prison but state officials are adamant 
in rejecting such requests. They say that Wallace's life sentence has 
always meant that he would die in prison, that elderly prisoners die 
regularly in confinement as part of their sentences, and that the inmate 
is entitled to no special medical treatment. So there he sits, a sick 
old man who spent four decades in solitary confinement for a crime he 
contends he did not commit, a prisoner running out of time to get any 
vindication from our courts of law.

When Herman Wallace dies, his case will die with him. And that will be a 
shame not just for him but for anyone who still believes that our 
criminal trials should from time to time be more than mere tests of 
evidence -- that they should strive, especially when a man's life or 
liberty are on the line, to find the truth of the matter. After 
Wallace's death, none of us will ever know what happened inside that 
prison in May 1972 -- what promises were made, what truths were hidden 
-- because no one other than Wallace has ever had any incentive to care 
about what happened that day. That's a failure of our justice system; a 
failure both in concept and execution.

Today, Judge Jackson, the federal trial judge, is likely the last judge 
who will ever have the job of reviewing Wallace's case. He can reject 
Magistrate Riedlinger's "Report," he can embrace it, or he can come down 
somewhere in between. Judge Jackson, an appointee of President Barack 
Obama, is a relatively new judge and this high-profile case presents the 
first big test of his young career on the bench. Win or lose, Wallace's 
legacy is secure -- he's always going to be the guy who spent 40 years 
in solitary after a sham trial. But how this judge handles this case now 
surely will say a great deal about what /his/ legacy is likely to be -- 
and whether our justice systems will be capable than they have been of 
acknowledging and then fixing even their most grievous mistakes.

This article available online at:


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