The funny thing is that I do not believe that anyone has been able to
present a single case in which an actually executed person was
subsequently found to be innocent of the crime for which (s)he was
executed. Do you know of any?
The evidence that wrongful executions can and do take place on a
frequent basis is pretty overwhelming it seems to me. Here follows just
two instances of what can be found...
Media will pay to prove innocent man executed
ATLANTA (AP) _ Three newspapers and CBS News said Wednesday they would
pay for new DNA tests on evidence from a 1981 Georgia murder case to
explore whether the man executed for the crime was innocent.
If the DNA testing shows that Ellis Wayne Felker did not rape and kill
19-year-old Evelyn Joy Ludlam, it would be the first time DNA evidence
exonerated an American inmate who was put to death. DNA evidence has
cleared eight death-row inmates.
Felker, executed in 1996, claimed he was innocent.
The Boston Globe, The Macon Telegraph, The Atlanta Journal-Constitution
and CBS are calling for new DNA tests on evidence in the murder of the
college student, whose body was dumped in a creek.
``We've been very interested, like other news organizations, in finding
a case where perhaps a man was wrongfully executed,'' said Ben Bradlee
Jr., the editor overseeing the project for the Globe. ``If this could be
proven, it could dramatically alter the terms of the death-penalty
The tests would be run on material that authorities still have,
including Ludlam's and Felker's hair, scrapings from under Ludlam's
fingernails and hair found in Felker's house.
Kelly Burke, district attorney in Houston County, where the case was
prosecuted, said the examination was ``a total waste of their time.''
Even so, Burke said he expected to approve the new tests, and the
evidence could leave his office as early as Friday for a lab in
California. The results could come back in several weeks.
Advances in DNA testing have been at the forefront of the national
debate of the fairness of the death penalty. Opponents of capital
punishment have called for measures to give death row inmates more
access to post-conviction DNA testing; even many death penalty
supporters say such tests should be used to eliminate any doubt about
Last month, Texas Gov. George W. Bush, a death penalty supporter,
stopped the execution of Ricky McGinn until evidence found on his
alleged victim, his stepdaughter, could be tested. Preliminary results
failed to clear McGinn, but more tests are planned, according to
In the Georgia case, Ludlam was assaulted and bound for as long as six
hours before she was strangled. Her mouth and eyes had been covered with
duct tape. Her body was dumped in a creek, where it lay for two weeks.
Felker was connected to the crime through hair fibers found in his home
and on the victim. He was found guilty in 1983 after a five-day trial
and sentenced to death.
Authorities said Felker would not have been subject to the death penalty
without rape as an aggravating circumstance. Years later, Felker's
lawyers asked a court to delay his execution so they could run a DNA
analysis. The court rejected the request, saying it came too late.
``We're doing something now that no one else is in a position to do,''
said Jim Walls, the Atlanta newspaper's special projects editor. ``The
defense won't do it after the man's been executed. The prosecution won't
Burke, the district attorney, pointed out that Felker had been convicted
of a similar sexual assault five years before Ludlam's murder and that
circumstantial evidence clearly pointed to Felker as the killer.
``This is not a case of an innocent man getting convicted,'' Burke said
Wednesday. ``The part that's tragic is that it's got to be opening up
wounds for both families for something that they thought was a done
Burke said he was concerned that the evidence will have disintegrated to
the point of making it inconclusive, creating the impression that Felker
was wrongly prosecuted.
``Then we're right back to the same argument,'' he said. ``What proved
Wayne Felker did it wasn't necessarily a little piece of evidence. It
was all kinds of things that went into the case.''
Walter Bush, a lawyer representing the Macon newspaper, said he expected
the cost of the new testing to be between $10,000 and $30,000. But he
said that may change depending on how long the testing takes and whether
Felker's body must be exhumed to gather more of his DNA.
Kevin Tedesco, a spokesman for CBS News, said the network's policy was
not to discuss stories before they are aired.
In Memoriam: John W. Byrd Jr.
LUCASVILLE, Ohio - John W. Byrd Jr. died by injection on February 19,
2002, the first inmate executed since Ohio reinstated the death penalty
in 1981 to claim he was innocent.
Journalist, author and private investigator Martin Yant worked literally
to the end of Byrd's life to save him. Martin tells us, "Ohio in all
probability just executed an innocent man. Equally important, Ohio just
needlessly killed a good man. John W. Byrd Jr. may have been a
troubled-and troublesome-young man. But he grew into a self-educated man
of great strength, wisdom and insight. We will continue to fight to
prove his innocence even though he is now gone."
The following Affidavit outlines why Martin became convinced of John
Byrd's innocence. John Byrd is not the first innocent man executed by
the government for a crime he did not commit. Let us redouble our
efforts to ensure he is the last.
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
I, Martin D. Yant, depose and state under oath as follows:
1. I am an investigative journalist with 30 years of experience. I am
also a licensed private investigator specializing in the investigation
of possible wrongful convictions.
2. I am the author of four investigative books, three of which concern
the American criminal-justice system.
3. My first book, Presumed Guilty: When Innocent People Are Wrongly
Convicted, was published in 1991. Presumed Guilty was the first overview
of the problem of wrongful convictions to be published in 30 years. An
August 2000 review of all books on the subject written in the 20th
Century pronounced Presumed Guilty "the most readable, [which] in no way
detracts from its wealth of information."
4. I reviewed hundreds of documented wrongful convictions to determine
how and why they occur before writing Presumed Guilty. I also consulted
many leading criminologists, lawyers, investigators and journalists who
had expertise in the subject.
5. I have devoted most of my time to investigating and writing about
wrongful convictions in the 11 years since Presumed Guilty was
published. In the process, I have discussed the subject on numerous
national and local TV and radio talk shows; had two investigations
featured on NBC-TV's Unsolved Mysteries and one on CBS Evening News; and
aided in the release of several innocent inmates as a result of
investigations I conducted from Rhode Island to California. I also was a
consultant for Final Appeal, an NBC-TV series on wrongful convictions,
6. Most recently, the findings of my three-year investigation on the
strong wrongful conviction claims of two Columbus men originally
sentenced to death in 1978 were featured on the front page of The
Columbus Dispatch on Sunday,
February 10, 2002. I conducted the investigation for Centurion
Ministries, and organization that has freed 26 wrongly convicted
inmates-two of them from death row-since 1983.
7. Many of my investigations have been of death-penalty cases. One of
those cases is that of John W. Byrd Jr. In the course of that
investigation, I have thoroughly reviewed the record and traveled as far
away as California to track down and interview witnesses. The results of
my investigation were incorporated into a series of investigative
articles I co-wrote with Robert J. Fitrakis for Columbus Alive.
8. Of the many revelations in our articles that raise doubt about Byrd's
guilt, in my opinion four stand out:
A. A statement that Robert Fitrakis obtained from Robert E. Pottinger
Jr. During that interview, Pottinger stated that he and John Brewer
committed the robbery after the one in which Monte Tewksbury was killed.
Pottinger said Byrd was passed out in the truck at the time. Pottinger's
statement is important because the Ohio Supreme Court has ruled that
Byrd's identification as the knife-wielder in the second robbery was
"highly probative" evidence that he stabbed Tewksbury to death at a King
Kwik store one hour earlier. If, as Pottinger claims, Byrd didn't
participate in the second robbery, then he couldn't have been wielding
B. A statement came by Dennis Nitz, a witness at the second robbery.
Nitz told me that he stands by his testimony that the robber wielding
the knife at the second robbery wore tan pants and a red-and-black shirt
or coat. Byrd, the alleged knife-wielder, was wearing blue pants and a
blue-and-white sweater that night. In his closing argument, the Hamilton
County prosecutor said Nitz was mistaken about the pants' color. Nitz
C. A statement by John Lee Fryman, who said he was with Brewer, Byrd and
a friend of his when they planned the robbery at the King Kwik store at
which Monte Tewksbury worked. Fryman told me in an interview that it
didn't surprise him that Pottinger said that Byrd was passed out because
Byrd had already consumed a fifth of whiskey before noon that day.
Fryman also said that Brewer had a large knife with him. Fryman said he
never saw Byrd with a knife. Finally, Fryman said that Brewer bragged to
him when they were in prison together in Lucasville that he, not Byrd,
D. The affidavit of Larry Kidd, who says he was in the Hamilton County
Jail with Byrd and that he never heard him discuss his case, let alone
with a black inmate, because Byrd did not like or trust blacks. It was
for this reason, Kidd says, that he has always doubted the testimony of
Ronald Armstead, who is black, that Byrd bragged to him about killing
Tewksbury. On the other hand, Kidd says he did hear Byrd's co-defendant,
John Brewer bragging about the murder to Armstead. Kidd believes
Armstead got many of the details of Tewksbury's murder from Brewer
during this conversation. Kidd also believes Brewer planted the idea
with Armstead that Byrd killed Tewksbury so that Brewer himself would
not be charged with being the principal offender.
9. During my review of the Byrd case, I also isolated the following
factors that are common causes of wrongful convictions:
A. The dubious testimony of jailhouse snitch Ronald Armstead that Byrd
confessed to him. According to the Innocence Project at the Benjamin N.
Cardozo School of Law, which has exonerated 102 innocent inmates with
DNA in little more than a decade, testimony by snitches or informants
was a factor in 16 of the first 70 exonerations the organization
achieved. This should make all testimony by such witnesses highly
suspicious. That is why the bipartisan Constitution Project's
blue-ribbon death-penalty panel unanimously concluded that the death
penalty should be "off limits where the guilt of the defendant or the
likelihood of receiving a capital sentence" depends upon uncorroborated
testimony from co-defendants and jailhouse informants.
B. Ineffective assistance of counsel by Byrd's trial attorneys. The
Innocence Project says that bad lawyering was a factor in 23 of its
first 70 DNA exonerations. The mistakes made by Byrd's attorneys are
well-documented. What has not been documented is the indifference of
Hollis Moore, who failed to inform Byrd that he previously had
represented Armstead when, purportedly at his request, he was appointed
to represent him. Moore was extremely reluctant to discuss Byrd's case
when I called him on February 16, 2002, and he refused to fully answer
important questions. Even more telling, Moore didn't inquire about the
new evidence I told him that had surfaced or even how his former client
was doing only days before his scheduled execution.
C. Prosecutorial and police misconduct. The lengths that the prosecutors
and investigators have gone to achieve Byrd's scheduled execution are
among the worst I have seen in my study of hundreds of documented
wrongful convictions. The steps they have taken to camouflage an obvious
deal made with Armstead in return for his testimony is an affront to
justice. Prosecutorial misconduct played a role in 34 of the Innocence
Project's first 70 exonerations. Police misconduct was a factor in 38 of
the 70 cases.
10. Based my review of the record and investigation, it is my
professional opinion that John W. Byrd Jr. did not kill Monte Tewksbury.
What's more, because of an off-the-record statement by one of the
during our investigation, I do not believe Byrd participated in either
robbery that night. According to this individual, who asked that this
part of his statement be kept off the record because he feared that he
otherwise might be charged with murder, Byrd was unconscious during both
11. I also have concluded that if Mr. Byrd is executed for this
crime-with medicines the U.S. Food and Drug Administration has approved
only for the use of saving lives, not taking them -his death would
and unusual punishment and would be an affront to the standards of
justice of the people of Ohio.
12. As part of my work, I go to great lengths to network with the few
other people who specialize in studying or investigating wrongful
convictions. There have been several pertinent developments in just the
past few weeks that demonstrate a clear movement in the courts,
academia, the media and the population at large against the death
penalty. Among those examples were:
A. In a case remarkably similar to Byrd's, the Maryland Court of Appeals
ordered a new trial for Clarence Conyers Jr., who was sentenced to die
for the murder of his girlfriend's mother. The court said the state
failed to disclose to the defense important information about the
testimony of Charles Johnson, a cellmate who testified that Conyers
admitted killing the woman. The majority opinion said the prosecution
"was an active participant in the 'smoke and mirrors' effort to mislead
[Conyers] and the jury as to the full circumstances preceding and
precipitating Johnson's plea agreement." The opinion said the state did
not tell Conyers' lawyers or the jury that Johnson was awaiting trial on
a 19-count armed robbery indictment and that he was allowed to plead
guilty to one misdemeanor charge of conspiracy to commit robbery.
B. In her nationally syndicated column, Ann Landers stated that she was
"strictly opposed to the death penalty, no matter how heinous the
crime." Landers, who was responding to a letter from the Constitution
Project, noted her support for the Project's proposed legislative
reforms of the death penalty, calling them "compassionate and sensible."
C. A report released by Columbia University concluded that the high rate
of mistakes in death penalty cases is related to aggressive overuse of
the punishment. "What our study shows is that aggressive death
sentencing is a magnet for serious error," said Professor James Liebman,
the leading researcher for the study. (Hamilton County, where Byrd was
convicted, is the most frequent user of the death penalty in Ohio.) The
report was a follow-up to a June 2000 study, "A Broken System, Error
Rates in Capital Cases 1973-1995," which revealed that 68 percent of all
capital judgments were reversed by the courts due to serious error.
D. The Miami Herald reported that nearly a decade after two teenagers
were convicted of murdering a Broward County sheriff's deputy, a
32-year-old man has admitted committing the crime. If the statement
holds up, it would be the third time in the past two years that a
Broward Sheriff's Office murder conviction has collapsed because of a
false confession. One man went to death row, where he died of cancer
before DNA tests exonerated him. Another served 22 years before being
E. Rob Warden, head of the Northwestern University Center on Wrongful
Convictions, said he believes public opinion is turning against the
death penalty. Warden noted that a Gallup poll last May showed support
for the death penalty at 65 percent, a 20-year low. When the alternative
of life without parole was offered, support for the death penalty
dropped to 52 percent, Warden said. Warden noted that 288 people in
Illinois have been sentenced to death. Thirteen of those were later
found innocent, several of them thanks to Warden's investigations. That
is an error rate of 4.51 percent.
13. I believe it is time for the state of Ohio to join those taking a
more critical view of capital punishment. John W. Byrd's questionable
conviction is a good place to start.
Further I sayeth naught.
Martin D. Yant
Author, Journalist & Private Investigator
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