James Owens, now 52, was sentenced to life in prison without the possibility of parole in 1988 for a murder he didnāt commit.Ā (Lexey Swall, special to ProPublica)
A case in Baltimore ā in which two men were convicted of the same murder and cleared by DNA 20 years later ā shows how far prosecutors will go to preserve a conviction.
By Megan Rose / 09.07.2017
On Oct. 15, 2008, James Owens shuffled, head high despite his shackles, into a Baltimore courtroom, eager for his new trial to begin. Two decades into a life sentence, he would finally have his chance to prove what heād been saying all along: The state had the wrong man.
Owens had been convicted of murdering a 24-year-old college student, who was found raped and stabbed in her home. Then heād been shunted off to state prison until DNA testing ā the scientific marvel that heād watched for years free other men ā finally caught up with his case in 2006. The semen that had been found inside the victim wasnāt his. A Maryland court tossed his conviction and granted Owens a rare do-over trial.
State prosecutors balked, insisting they still had enough evidence to keep Owens locked away and vowed to retry him. But they had also offered him an unusual deal. He could guarantee his immediate release from prison with no retrial and no danger of a new conviction ā if heād agree to plead guilty. The deal, known as an Alford plea, came with what seemed like an additional carrot: Despite pleading guilty, the Alford plea would allow Owens to say on the record that he was innocent. The Alford plea was an enticing chance for Owens, by then 43, to move on as a free man. But heād give up a chance at exoneration. To the world, and legally, heād still be a killer.
Owens refused the deal. He told his lawyer he wanted to clear his name, and he was willing to take his chances in court and wait in prison however long it took for a new trial to begin. It was a startling choice for an incarcerated defendant ā even those with persuasive stories of innocence typically donāt trust the system enough to roll the dice again with 12 jurors or an appellate court. Most defendants, lawyers say, instinctively and rationally, grab any deal they can to win their freedom back.
The decision cost Owens 16 more months behind bars. Then, on that fall day in 2008, when the trial was set to begin, the prosecutor stood and, without a glance at Owens, told the judge, āThe state declines to prosecute.ā
In a legal gamble in which the prosecution typically holds the winning cards, Owens had called the stateās bluff. He walked out that day exonerated ā and with the right to sue the state for the 21 years he spent wrongly imprisoned.
It seemed the ultimate victory in a city like Baltimore, with its deeply rooted and often justified mistrust of police and prosecutors. But Owens wasnāt the only man convicted of murdering that 24-year-old college student. Another white Baltimore man, James Thompson, had also been put away for life. Tests showed that his DNA didnāt match the semen either, but the stateās attorneyās office refused to drop the charges. Instead, as it had with Owens, it offered Thompson an Alford plea. Thompson grabbed the deal and walked out of prison a convicted murderer.
Same crime. Same evidence. Very different endings.
Ever since DNA ushered in a new era in criminal justice, even the toughest law-and-order advocates have come to acknowledge a hard truth: Sometimes innocent people are locked away for crimes they didnāt commit. Less widely understood is just how reluctant the system is to righting those wrongs.
Courts only assess guilt or innocence before a conviction. After that, appellate courts focus solely on fairness. Did everyone follow the rules and live up to their duties? Getting a re-hearing of the facts is a monumental, often decades-long quest through a legal thicket. Most defendants never get to start the process, let alone win. Even newly discovered evidence is not enough in many cases to prompt a review. And, for the tiny percentage of defendants who get one, the prosecutors still have the advantage: They have final discretion about whether to press charges and how severe theyāll be. Powerful influence over the pace of a case, the sentence and bail. And, compared with an incarcerated defendant, vast resources.
No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. But in Baltimore City and County alone ā two separate jurisdictions with their own stateās attorneys ā ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing Alford pleas or time-served deals. In each case, exculpatory evidence was uncovered, persuasive enough to garner new trials, evidentiary hearings or writs of actual innocence. Prosecutors defend the original convictions, arguing, then and now, that the deals were made for valid reasons ā such as the death of a key witness or a victimās unwillingness to weather a retrial. The current stateās attorney in Baltimore County, Scott Schellenberger, said that āprosecutors take their oath to get it right very seriouslyā and wouldnāt stand in the way of exoneration if the facts called for it.
The menace of such deals, though, is clear: At worst, innocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records and those of the department, and no one re-investigates the crime ā the real suspect is never brought to justice.
The plea deals ProPublica examined in Baltimore City involved two prior stateās attorneys. A spokeswoman for Marilyn Mosby, the currentĀ chief, didnāt respond to numerous requests for comment or for interviews with prosecutors in those cases.
The pleas in two of these Baltimore cases were later overturned after misconduct was uncovered in the original convictions, and the men won full exonerations. One, Walter Lomax, a black man convicted by an all-white jury shortly after the 1968 race riots in the city, served 38 years of a life sentence before taking a time-served deal in 2006. The state didnāt concede he was innocent until 2014.
Wrongful convictions are bad enough, Lomax said, but theyāre even more āhorrible when it becomes obvious the person is innocent and the state wonāt at the very least acknowledge that.ā
Some legal and cognitive science experts suggest that once detectives and prosecutors commit to a suspect and a theory of the crime, it changes how they evaluate evidence, and then the system itself exacerbates that focus at every step. Prosecutors are rewarded for proving and defending their theories, leaving little incentive to acknowledge weaknesses in cases, particularly in high-stakes crimes such as rape and murder. This mind-set is bolstered by one of the great positives of the system, one which legal experts, even those dedicated to exposing wrongful convictions, acknowledge: Prosecutors generally get it right.
Psychologists have a myriad of terms for the powerful, largely subconscious biases at play, but most people would call the collective phenomenon ātunnel vision.ā
Wrongful convictions involving violent crimes typically involve poor, often minority defendants, sometimes with limited education or IQs, who are convicted on scant evidence or flawed forensics. The cases are fueled by an early theory of the crime that relentlessly drives the investigation and prosecution ā even, in some cases, to official misconduct.
āAt some point psychologically, you go from figuring out what happened to figuring out how to prove it happened the way you said it did,ā Barbara OāBrien, a law professor involved with the National Registry of Exonerations at the University of Michigan, said. āItās very difficult to take a step back from that.ā
Marty Stroud, a former Louisiana prosecutor, made national headlines in 2015 when he penned a rare public apology for putting an innocent man on death row for 31 years. He told me recently that the system comes down hardest on those without the means to defend themselves. āItās easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,ā he said.
The certitude of detectives and prosecutors hardens when their theory is validated by a judge or jury, and later, by an appellate court. Time, instead of allowing for fresh eyes, often makes biases worse. When a defendant like Owens gets a new hearing, the district or stateās attorneyās office ā long committed to his guilt ā has to re-justify that decision.
If they admit they got it wrong, prosecutors have to accept that a person was robbed of years of his life, the real perpetrator was never found, the victimās family was let down, and, to top it off, they now have a cold case thatās unlikely to be solved. With the Alford plea, not only is the real perpetrator not caught but the case is officially closed on the books. It also dings their won-loss record on typically high-profile cases. The idea of a wrongful conviction, Stroud said, assaults a prosecutorās sense of identity that āweāre the good guys. We have the white hats and are putting the bad guys in jail.ā
Exonerations are also like a Pandoraās box in two important and unsettling ways. First, looking closely at why wrongful convictions happen ā even in cases when everyone worked in good faith ā could force a reckoning about deeply held beliefs on what is required to solve and punish crimes. False confessions, for example, often are a result of time-honored, and perfectly legal, tactics to soften up a suspect, such as lying or conducting questioning in the dead of night, said Steven Drizin, the former director of Northwestern Universityās Center on Wrongful Convictions. When wrongful convictions are a result of misconduct, there could be a string of other bad convictions connected to that prosecutor or detective.
Itās no coincidence, many defense lawyers across the country say, that when misconduct comes up, prosecutors are quicker to propose an Alford plea or similar deal, effectively quashing any further inquiry into the behavior. One ACLU attorney told me about a galling Alabama case in which prosecutors insisted they would re-seek the death penalty, and it was āonly because we were continuing to expose prosecutorial misconduct that they finally agreed to settle the case.ā
After James Thompson brought police a knife that he claimed to have picked up near a murder victimās home, a Baltimore police officer posed with the weapon. A local TV news station filmed police taking the photo and erroneously reported that the police had found it. āThereās a real danger in staging things like this,ā said Stephen Mercer, a Maryland public defender.(Baltimore Police Department file, courtesy of Stephen Mercer)
On a muggy August evening in 1987, police officers swarmed a block of squat brick rowhouses in a mostly white, working-class neighborhood in southeast Baltimore. A young woman had been raped, strangled with a sock and stabbed to death in her second-floor bedroom. Detective Thomas Pellegrini, whoād been assigned to homicide only the year before and, who, by his own admission, was green enough not to sweat the details, caught the case as lead detective. He was assisted by Detective Gary Dunnigan and the squadās boss, Sgt. Jay Landsman. The trio would become famous a few years later when David Simon heralded them in his book āHomicide: A Year on the Killing Streetsā and on the subsequent prime-time TV show it inspired.
The next morning, the neighborhood reverberated with the choppy drone of police helicopters circling overhead. Thompson, a gas station attendant whoād suffered a brain injury in childhood, lived down the street with his wife and their two young boys. Heād heard detectives were looking for a knife and offering a $1,000 reward. It seemed a prime opportunity for a quick buck. The short, stocky 27-year-old wandered over to the yellow police tape and handed Pellegrini a large switchblade. Thompson said heād found the bloody weapon in the grass the night before, pocketed it, and cleaned it at home ā somehow unaware of the massive overnight police presence. At Pellegriniās urging, he fetched a pair of cut-off jeans he said heād been wearing at the time, which had a small bloodstain on the back right pocket.
Forensics showed a possible presence of blood or other unknown substance on a small area of the knife and no evidence to suggest it was used in a violent struggle, such as a broken tip from hitting bone. The detectives moved forward on the assumption it was the murder weapon.
Two days later, rather than being thanked and handed the reward money, Thompson found himself under suspicion. In a panic, he fingered Owens. The two had been casual friends, but theyād had a falling out over accusations of theft when theyād briefly worked together at the gas station. In a thoughtless burst of vengeance, Thompson gave an official statement at the police station; he said the knife was actually his but claimed Owens had stolen it and then told him where to find it the day after the murder. Thompson noticed the detectives ate up everything and realized they had nothing else to go on. At the time, there seemed to be no risk in just making it up as he went along. After he retrieved the knife, Thompson told detectives, Owens washed it in the kitchen sink. Thompson didnāt give the police any details about the murder, but he said Owens had told him heād had sex with the victim.
Owens, 22 at the time, was arrested and charged with burglary, rape and first-degree murder. In just 72 hours, the detectives had closed the case. There was no forensic evidence, motive or eyewitnesses linking Owens to the crime. Landsman and Pellegrini would later say they had believed at the time that without Thompson, Owens would walk. Even the prosecutor, Marvin āSamā Brave, said he viewed Thompsonās story as āimplausibleā and didnāt think he had the truth, but he nevertheless pressed charges.
Brave recently told me that āif you think youāve got the right guy, but not that you can necessarily prove it beyond reasonable doubt, it doesnāt mean you donāt go forward.ā
A Baltimore Police Department photo of James Owens from August 5, 1987, the day Owens, 22, was arrested for murder.Ā (Baltimore Police Department file, courtesy of Stephen Mercer)
When Owensā trial began in February 1988, Thompson was the star witness. Heād considered coming clean several times but was afraid heād be sent to jail. Heād lied to the cops during a previous encounter and had been arrested for making a false police report. Despite that history, the detectives in this case had made him feel like a hero. Pellegrini didnāt think Thompson was āthe sharpest pencil in the box,ā but at that point in his career, he said in a recent deposition, he thought only suspects would lie to him. Brave also was unconcerned. āIf the part that you think he is telling the truth [about] contributes to your case, you use it,ā he said. āHe doesnāt have to be telling the truth about everything.ā The rest of the case relied mainly on minor scratches Owens, a factory worker, had on his arm and a spot of possible blood that had been swabbed from his hand. Two jailhouse snitches whoād been Owensā cellmates while he awaited trial claimed he had separately confessed to them, though the story Owens purportedly told them contradicted the version Thompson had given police.
In his opening statement, Brave told the jury that any notion that police had ābungled the investigationā and the defendant was innocent was from the fantastical realm of television. But Brave was concerned enough about Thompsonās story that he took him aside the morning of his testimony and warned he was going to ālook sillyā and it was time he ātold us the truth about how that knife really got back into his possession,ā according to testimony Brave later gave about the conversation. He even assured Thompson he wouldnāt be prosecuted for making a false statement.
When Thompson took the stand, he told the jury heād had a āheart to heartā with the prosecutor and was āready to tell the truth.ā In this new version of events ā which Brave described later as āsellableā to a jury ā Thompson said that around 8 a.m. the morning after the murder, Owens had come by his house and given him the bloody knife. Except this story, too, was a lie. As one of the detectives noted to Brave afterward, Owensā boss had told police heād been at work by that point in the morning. āThe more I tried to fix things to go in my favor, the bigger hole I dug for myself,ā Thompson told me recently.
That Friday Brave went home āreally worried about the case,ā and stewed over the weekend that he was on āa sinking ship.ā Late Sunday evening, he met with Pellegrini and told him to take blood and hair samples from Thompson for testing to exclude him as a suspect and bolster his credibility as a witness. Brave already knew the pubic hairs found on the victim didnāt match Owens. Neither did saliva on a cigarette found at the scene.
During a lunch break at trial the next day, Brave and the three detectives met with the cityās forensics expert who, they said, told them the hair was a match to Thompson. Detectives brought Thompson in, read him his rights, and told him āhe was in a lot of troubleā and might be charged. His hair, Landsman told him, had been found in the victimās house. Thompson later contended he knew this couldnāt possibly be true ā he hadnāt been there at all. But at the time, he said, he was scared and thought if he just said what pleased the detectives and got Owens convicted, heād be alright.
In 1988, Baltimore’s forensic examiner wrote on the back of a picture of Thompson’s hair that his hair matched one found at the crime scene. In 2010, the same examiner said pictures of the hair showed that they didn’t match, moreover that type of hair analysis was no longer considered valid.Ā (Baltimore Police Department file, courtesy of Stephen Mercer)
Like an actor doing take after take to accommodate the wishes of a director, Thompson went through several more versions about what supposedly happened, adjusting his story to reflect additional pieces of evidence the detectives told him about. Thompson first said he broke into the house but didnāt go upstairs. After the detectives told him his hair had been found on the second floor, Thompson then said he did go upstairs but hid in the bathroom while Owens attacked the victim after she unexpectedly came home. Detectives then told him his pubic hair had been found on the victimās buttocks, suggesting his pants must have been down. After several hours of this back and forth, Landsman went to the courtroom and handed Brave a note, saying Thompson had admitted to burglarizing the house with Owens.
Thompson was taken directly from the interrogation room to the witness stand to testify a second time. Now, speaking so softly at first that the judge twice had to tell him to raise his voice, Thompson said he and Owens had broken into the apartment to steal jewelry, and Owens attacked the victim when she came home unexpectedly. Then, while Owens raped her, Thompson testified that he masturbated over her back ā his newly concocted explanation for how the pubic hair the state claimed was his had ended up on the victim. Owens, Thompson said, then stabbed her and threw the knife on the ground, which Thompson picked up on the way out.
This was, unbeknownst to Owens or his lawyer, Thompsonās eighth version of events ā the one that satisfied the officers that they had enough āto get James Owens,ā as one detective later put it.
Even on the stand implicating himself in the crime, with both Brave and Owensā lawyer stressing charges he might face, Thompson said the full ramifications of his lies didnāt dawn on him. He thought heād be fine once the trial was over.
āI never hurt anyone. I never touched that young lady,ā Thompson said again and again on the stand, adding at one point that heād take a polygraph to āprove my innocence on that particular behalf.ā
Owens was convicted of the burglary and the murder but found not guilty of the rape. Thompsonās changing stories had cast enough doubt that Brave acknowledged in his closing argument that either man could have committed the rape. Thompson, who had been arrested right after testifying and immediately recanted his confession, was later convicted of burglary, rape and murder. Thompsonās multiple different stories of the crime had been accepted as truth, but his multiple attempts to protest his innocence were taken as lies.
Both men were sentenced to life without parole. Owens was the first in Maryland to receive such a punishment.
Lexey Swall, special to ProPublica
Owens never resigned himself to his fate. A few years into his sentence, he read about DNA in a magazine and implored everyone he could think of to test the evidence in his case. He eagerly conferred over coffee with Kirk Bloodsworth, the inmate across the hall, then cheered Bloodsworthās exoneration by DNA in 1993, the first of its kind in the nation involving a death sentence. Shaking Bloodsworthās hand when he left prison, Owens thought, āMan, one day Iāll be out there.ā Then the O.J. Simpson trial introduced him to Barry Scheck, the founder of the Innocence Project, and Owens sent his office a letter. Shunned by his family and cut off from the way most convicts got cash, he traded chicken sandwiches from his kitchen job for stamps to mail it. Still, no one took up the cause. The semen found in the victim and the blood on Thompsonās shorts sat undisturbed in the Baltimore medical examinerās office for 19 years.
Finally, after a special division within the Maryland public defenderās office became interested, he got a new lawyer and a hearing. A judge ordered DNA testing in 2006 ā over the objections of prosecutors ā and the results dismantled the stateās theory of the crime. At both trials, the state had argued that the break-in, the rape and the murder were inextricably linked. At Owensās trial, the prosecutor told the jury Owens had leered at the victim as she sunbathed and ādecided that he wanted her.ā He broke into her house, laid in wait for her to return, raped her, strangled her and āfor good measure ā¦ mutilate[d] her with multiple stab wounds.ā The prosecution doubled down on this narrative at Thompsonās trial, telling the jury he and Owens āhad to humiliate [the victim] by taking turns raping her.ā And the blood on the back pocket of Thompsonās shorts, the prosecutor said, was definitively the victimās.
DNA proved most of those arguments false. The semen found in the victim didnāt come from Owens or Thompson, and the blood on the shorts wasnāt even from a woman. It was Thompsonās own. When Owens heard the news at Jessup Correctional Institution, just southwest of Baltimore, he sat on the floor of his cell and cried.
The Baltimore City Stateās Attorneyās Office was unmoved. Prosecutors fought both Thompson and Owens as the two separately sought to have their convictions overturned.
Owensā case moved faster through the courts. His new attorney was Stephen Mercer, a Maryland defense attorney with an earnestness that had survived more than 20 years in the trenches. Mercer knew the state, with its evidence decimated, was going to push for a deal. He fumed that prosecutors were using psychological warfare to do it ā opposing bail and slowing the case, so Owens would spend more time on the inside thinking about being on the outside. Owensā evidentiary hearing was moved from January to March to May. Only then, nine months after the DNA showed Owens wasnāt the rapist, did the state agree to a new trial while insisting that Owens was still guilty of murder.
The stateās attorneyās office, run at the time by Patricia Jessamy, argued that the rape was immaterial to the murder, and, a spokeswoman said, the DNA evidence was ātrivial.ā Mark Cohen, the new prosecutor, told Mercer that other evidence in the case, including Thompsonās confession and the testimony of jailhouse informants, was still persuasive. (Jessamy didnāt respond to several phone messages requesting comment and Cohen has since died.)
Mercer said the prosecutorās stance was āvery cynical. It really seemed that the desire to keep the conviction was for reasons that had nothing to do with the evidence.ā The stateās guiding star, Mercer knew, was a rigid belief that what was long ago decided by a jury, and upheld by an appellate court, shouldnāt be continually second-guessed.
Stephen Mercer, chief of the forensics division of the Maryland Office of the Public Defender, dug up exculpatory evidence for three defendants ā James Owens, James Thompson and Wendell Griffin ā who had been sentenced to life and secured their release from prison.Ā (Lexey Swall, special to ProPublica)
In Owensā case, it wasnāt just the semen and the blood that didnāt hold up 20 years later. The type of hair analysis done on the pubic hair had subsequently been dismissed as junk science. The hair, along with the knife, had been destroyed. But the stateās own expert, whoād inspected the hair at the time of the original trials, said at a hearing that the scientific community no longer does a visual hair comparison to ādraw the conclusions we drew back in 1988 with a microscope.ā Now analysts use DNA analysis.
Not long after Owens was granted a new trial in May 2007, Cohen proposed a deal. It wasnāt surprising. The plea bargain is the lifeblood of the overburdened criminal-justice system. About 95 percent of cases never go before a jury. Instead, most defendants agree to plead guilty in exchange for lesser sentences. In cases like Owensā, in which new evidence undermines old, legal advocates question whether incarcerated defendants should even be offered a plea. In every case, prosecutors āneed to really inspect their own motivations,ā Thiru Vignarajah, a former federal and Baltimore City prosecutor who later served as deputy attorney general of Maryland, said. āAre they offering a plea or time served because thatās in the best interest of the case, or are they allowing some institutional interest of preserving the conviction to trump a prosecutorās duty to seek justice?ā
A year before Owensā retrial, Jessamyās office had convinced another defendant to take an Alford plea. Locked up for 20 years, that defendant had at first refused a deal after he, too, was granted a new trial because of DNA evidence. As the trial was set to begin, the prosecution requested a postponement. When the state again delayed the subsequent trial date, the defendant broke down. He accepted the plea.
Afterward, Jessamyās spokeswoman scoffed at the defendant in a news story, saying it was āinconceivableā that after 20 years the defendant couldnāt wait a little longer, and āif he truly believes he is innocent, he should have gone to trial to see that justice is served.ā
As Owensā trial got closer, Cohen kept sweetening the deal, knocking down the charge and requiring less probation. Finally, they offered Owens an Alford plea for second-degree murder, time served and no probation. Mercer lost sleep over whether Owens should take it. A trial was risky and a chance at guaranteed freedom was rare for any defendant. Owens repeatedly asked himself: āWhy are they doing this to me? Why should I have to plead guilty to something I didnāt do?ā Now mostly bald and with a moustache, heād grown up in the foster care system. Heād been viciously attacked while in prison. He didnāt have much to hold onto except his resolute insistence from day one that he was innocent. He wasnāt about to āadmit there was sufficient evidence to convict him while playing this wink-and-nod game that he was claiming his innocence,ā Mercer said. So the Alford plea, like all the others Mercer had passed to Owens through the Plexiglass, was flatly rejected: āMr. Mercer, there is no way. I am going to trial.ā
Cohen, suspicious that the deal hadnāt been properly relayed, had Owens and Mercer join him for a bench conference, so that the Alford plea could be offered in front of the judge.Ā āIām not taking nothing, dude,ā Owens recalled saying. āI will die in the penitentiary if I have to.ā
In October 2008, Owens was vindicated. Cohen was forced to tell the court he didnāt have the goods for a retrial. Owens stepped out of prison free for the first time in 21 years, telling gathered reporters, āYou canāt give me that time back.ā
James Thompson, 57, has been out of prison for less than six months and is trying to get his life back on track. After DNA cleared him of the rape, he took an Alford plea to be released from prison. āDid I want to take that? Absolutely not. But I wanted to go home.āĀ (Lexey Swall, special to ProPublica)
Thompson, meanwhile, was fighting the same battles while incarcerated about 75 miles away at Roxbury Correctional Institution in Hagerstown, Maryland. But in his case, prosecutors were employing a perplexing logic. Theyād agreed that the DNA evidence from the semen warranted a new trial for Owens, who had not been convicted of rape, but they refused a new trial for Thompson, who had been.
Thompson, by now gray-haired and hard of hearing, was dismayed. Heād saved the newspaper clipping about the DNA findings, and when he read that Owens had gone free, he was certain heād be next. He couldnāt understand why the DNA could clear Owens of all charges while it did nothing for him, even though the DNA excluded him as well. But Mercer, whoād picked up Thompsonās case after freeing Owens, did. Thompson had confessed, and that was prosecutorial gold. In Simonās book about the Baltimore detectives whoād secured Thompsonās confession, he detailed the interrogation tactics they had commonly employed. To get confessions, he wrote, the detective became a āhuckster ā¦ thieving and silver-tongued,ā and without the āchance for a detective to manipulate a suspectās mind, a lot of bad people would simply go free.ā
Poorly understood at the time is that such manipulation can also compel innocent people to agree to whatever the police want. As the U.S. Supreme Court noted in 2009, āa frighteningly high percentage of people ā¦ confess to crimes they never committed.ā According to the Innocence Project, 28 percent of defendants later exonerated by DNA had falsely confessed.
During the initial trials in 1988, prosecutors had argued that the pubic hair and the blood on the jeans proved Thompson was telling the truth, but in 2009 the Maryland Court of Appeals wrote that the DNA finding āusurps the Stateās arguments all together.ā In essence this meant none of Thompsonās statements to police or prosecutors throughout the case were corroborated by evidence.
Despite the statistics, convincing a jury that someone would falsely confess to a crime ā particularly to something as heinous as a murder or a rape ā is incredibly hard. Juries want to believe that people are rational actors, like themselves, with an almost primal instinct toward self-protection. It wouldnāt matter that the state no longer had the evidence to prove it, Mercer knew, a jury would most likely myopically focus on the confession.
Thompson told me heād been happy for Owens when he was released ā heād always wished he could apologize to him for what he did ā but that feeling had faded into self-pity as the calendar went from 2008 to 2009 to 2010 and his case stalled in the courts. Now he was mostly anxious. He just wanted relief, whatever it might be, so when Sharon Holback, the new prosecutor on the case, eventually offered him an Alford plea ā 23 years after heād first fatefully approached police ā his excitement overwhelmed his sense of injustice.
Mercer worked to make it the best deal he could. If Thompson took the plea, it meant the state would let him go, but the deal had some risky strings attached. Any charge that carried a life sentence had to come off the table, because in Maryland, a probation violation ā even something as relatively minor as a DUI ā sends the defendant back to prison to serve the remainder of his sentence. The two sides agreed to second-degree murder, which carries a maximum of 30 years. That way if Thompson violated probation, heād only have seven and a half years over his head, since he had served more than 22.
Gregg Bernstein, Baltimore City stateās attorney from 2011 to 2015, oversaw at least two similar deals. He couldnāt remember the details but said heād thought a lot about whether it was okay for an innocent man to take an Alford plea. In the end, he said, most cases lack black-and-white certainty, regardless of evidence suggesting innocence. āItās not that simple to say yay or nay,ā he said. āPleas are a way to resolve them.ā
Former prosecutor Vignarajah, though, told me he wonders if that kind of resolution only looks like a win for everyone on paper. āIn reality everyone lost,ā he said. āThe victim sees no justice. The defendant is walking away with a conviction. And the prosecution didnāt get anyone to take responsibility [for the crime].ā
On July 29, 2010, when Thompson left prison under the Alford plea, Holback got the last word: Thompson āis in no way exonerated.ā
Since their releases, Thompson and Owens have led dramatically different lives.
Thompson thought he could go back to the person he was almost 23 years earlier, before the murder rap, but society didnāt look at him that way. When he applied for a job, he put a question mark where the form asked if heād been convicted of a felony.
āI tried to explain I was wrongfully convicted, but people donāt want to hear that,ā Thompson said. āThereās no reasoning with somebody. āInnocent people do not go to prisonā is just the motto.ā
Thompson held onto his freedom for only a little over a year. In October 2011 he was arrested after his ex-girlfriend claimed that he had molested her young daughter. Thompson, whoād recently kicked the girlfriend out of his apartment, denied the charge, saying heād spanked the girlās bare butt to discipline her. The state reduced the charges to a misdemeanor for touching the girlās buttocks and gave him time served for the five months heād been in jail.
It didnāt end there, though. Because the misdemeanor violated his probation attached to his Alford plea, Thompson went from a local jail to a state prison to serve the remaining seven and a half years.
Mercer said he believes the Alford plea made it very difficult for Thompson to defend himself. āIt was a question of credibility,ā Mercer said. āWhoās going to believe him? He was stuck having to do damage control.ā
Thompson set into motion the prosecution of Owens, and eventually himself, when he lied about finding the murder weapon to get a $1,000 police reward. He then falsely testified that he saw Owens commit the rape and murder. āIām really ashamed,ā he said. āWhy I did what I did, I canāt explain it.āĀ (Lexey Swall, special to ProPublica)
Owens has fared better. He has been embraced by what little family he had. He has moved into a cousinās house and has begun working with him cleaning gutters and doing landscaping. And he has grown close to his nieces and nephews, a bittersweet feeling for someone whoād had no chance to build a family of his own. Owens told me he has tried not to let the anger sink him, but he struggles. His exoneration came without compensation or even an apology. āWhatās striking in these cases is a total lack of accountability,ā said Michele Nethercott, of the Innocence Project in Baltimore. āNothing ever really happensā to the police and prosecutors whose actions led to wrongful convictions.
Owens wonders today if his prosecution became all about keeping the win. āInstead of focusing on me and getting me to take a deal for something I didnāt do, they need to focus on the victim. Her murder has never been solved,ā he said. āI think they should go back and look and do something for this girl.ā
In 2011, Owens found a lawyer, Charles Curlett, to sue Baltimore. Curlett determined that there were several issues of misconduct involved in Owensā conviction. First, his lawyer had been told nothing of the changing stories Thompson gave the detectives. The information could have been used to undermine Thompsonās credibility and failing to share it was likely a violation of Owensā due-process rights. Such failures are known as Brady violations, after a 1963 Supreme Court case in which the justices determined that withholding favorable information from the defense is unconstitutional. Also, one of the jailhouse snitches who testified that Owens had confessed had been a police informant for years and said he recruited the other snitch. This, too, wasnāt revealed to the defense, nor were the informantās letters asking for favors in exchange for his testimony.
Brady violations had become so prevalent in Baltimoreās courts that the Fourth Circuit Court of Appeals recently admonished the cityās prosecutors to remember their legal obligations: āOnly this practice ensures the fair trial that our justice system aspires to provideā and makes it so āno one has to worry after the fact whether the jury convicted the wrong person.ā
The city furiously fought Owens. Dodging such suits, many defense lawyers contend, is part of what drives these plea offers. āIf not expressly that, itās implicit in a lot of decisions made in this setting,ā said Michael Imbroscio, an attorney who had a client in Baltimore City take a time-served deal. The city won dismissal of Owensā suit against the stateās attorneyās office and Brave, who the court ruled had immunity, and the Baltimore Police Department. But the case is going to trial in federal court, likely early next year, against detectives Pellegrini, Landsman and Dunnigan as individuals. Thereās millions in compensation at stake for Owens and a public airing of misdeeds for the city.
Civil litigation is āso important,ā Mercer said. āOften, thatās the only time thereās scrutiny into what wrongs were done.ā
Owens will go to court early next year in his lawsuit against the detectives who investigated him. He alleges the detectives violated his constitutional right to a fair trial by withholding key material from his lawyer.Ā (Lexey Swall, special to ProPublica)
The type of misconduct alleged in Owensā case is echoed in nine more of the 14 exonerations out of Baltimore City and County since 2002, according to the National Registry of Exonerations. The 2014 exoneration of Sabein Burgess, for example, came after it emerged that Baltimore detectives never revealed a key detail to the defense: that a young witness had told them he saw the murder suspect and it wasnāt Burgess. The detectives even submitted a report falsely stating that the witness had been asleep during the crime. Like Owens, Burgess is suing, claiming that detectives ācut corners and rushed to judgment.ā His trial is set for this fall and names a different group of detectives.
Misconduct can also be found in the cases of some of the remaining exonerated defendants who, like Thompson, arenāt officially considered exonerated at all but who were released under Alford pleas or time-served deals after questions were raised about their initial convictions. Curlett is representing one such man, Wendell Griffin, who was convicted of murder in Baltimore in 1982. Decades later, it came to light that three detectives ā two also featured in Simonās book and a third who is Landsmanās brother ā had buried photo lineups and witness statements pointing to Griffinās innocence. He was let out on a time-served deal in 2012.
The detectives named in the Owens and Burgess lawsuits have denied allegations of misconduct. Michael Marshall, who represents the detectives in Owensā and Griffinās suits, declined to comment, referring questions to the chief of legal affairs for the Baltimore City Police Department, who didnāt return several calls.
Thompson, whose parents died while he was in prison, has been abandoned by the rest of his family. He was released early for good behavior in February after serving a little more than five of his remaining seven and a half years, and as much as he blames himself for his mistakes, he now thinks his plea was a ābum deal.ā He wishes there was a way to prove to his loved ones that āalthough I served 30 years ā¦ I didnāt commit the crime.ā
The strain of the Alford plea proved too much for one of Baltimoreās wrongly convicted. Chris Conover left prison under the plea in 2003 after DNA called into question his murder conviction in Baltimore County. On the outside, he suffered from severe panic attacks and depression, but his wife told the local newspaper that he couldnāt face in-patient treatment, which meant being back behind locked doors. His petition for a pardon from Marylandās governor was turned down in 2012. Three years later, Conover killed himself.
āHaving been convicted really defines who you are ā it becomes itself a prison,ā Mercer said. āOnce out, with a conviction still on your shoulders, having maintained your innocence in a Alford plea is of little comfort and of very little practical benefit.ā