Re: 10/22/98 - The Truth Could Set Them Free
The Truth Could Set Them Free
On the shakiest of evidence, Daryl Valentine -- and lots of others -- are doomed to languish in jail.
By Jayne Keedle
It doesn't matter how many times attorney Thomas Ullmann tells his former client, Daryl Valentine, that things could be worse. The fact that Valentine could be on death row rather than sitting in the open visiting room at MacDougall Correctional Institution is cold comfort to a 31-year-old facing 100 years behind bars.
Valentine is bitter. And if what he says is true, he has reason to be. He has been found guilty, twice, of a shooting that left two people dead and one wounded in New Haven. Yet, Valentine claims, and his attorney firmly believes, he is innocent.
"I've been convinced this guy was innocent from day one," Ullmann says. "It's not an easy thing to lose a case when you believe a guy is innocent."
It's even harder because Ullmann has lost this case not once but twice. The first conviction was overturned on appeal and Valentine was given a second trial this past spring. The verdict still came back guilty.
Despite a perenially overwhelming case load, despite losing twice already before a jury, Ullmann is appealing a second time to have Valentine's conviction overturned.
A look back at the evidence in the case offers a vivid picture of a phenomenon currently making headlines both locally and nationally: the jailing, sometimes for life, of people who either didn't commit the crimes for which they were convicted or for whom the police had no credible evidence on which to base their arrest in the first place.
Valentine is spending his life behind bars because two juries saw no important physical evidence tying him to the crime. The juries believed a single witness with deep credibility problems, a second witness who recanted, and two cops with a record of either forcing false statements out of compromised witnesses or hiding exonerating evidence.
As Ullmann presses Valentine's case, for instance, community activists in New Haven continue to press the state for the release of or anew trial for Scott Lewis, who is serving a 120-year sentence that an exhaustive FBI investigation suggested he didn't commit. The FBI investigators concluded that a crooked city cop, in business with drug dealers, framed Lewis, another drug dealer, to settle a debt. This was one of several recent cases in which new evidence has cast doubt -- and in some cases led to new trials -- on convictions.
The wrongful-conviction phenomenon was the subject of a citizens' conference in New Haven last weekend, and the first-ever nationwide conference on wrongful convictions will be heldonNov. 13 in Illinois by Northwestern University Legal Clinic. (See accompanying story, "It Can Happen Here.")
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One thing's for certain in Daryl Valentine's case. If Valentine had it all to do over again, he never would have gone to the Athenian Diner that fateful night. Because being at the New Haven eatery at 2:40 a.m. on Sept. 21, 1991, put him in exactly the wrong place at precisely the wrong time.
Police reports and court documents give this account of what happened that night. Despite the lateness of the hour, the diner was packed with people hungry after a Saturday night of clubbing in New Haven. Christopher Roach was one of them. He told the court he was coming up the front steps of the diner with two companions, Andrew Paisley and Hury Poole, when he noticed a crowd of people in front of the diner.
There was a fight. According to Roach's testimony, a man ran around from the side of the diner. The man had a gun. He opened fire and hit Roach's two friends. The shots were fatal. Roach told the court he saw the shooter run to a waiting car and jump into the passenger side. Before the car pulled away, he says, he ran over to the driver's side door, at which point the man with the gun reached past the driver and shot him twice in the arm.
According to Roach, Valentine was the man who shot him.
In an interview recently at MacDougall, Valentine describes a different scene. He was sitting in a booth by the kitchen, he says, with a friend. "I was inside the diner when it happened. It was a panic inside, but everything was happening outside. I was nervous. I was inside." He repeats the word "inside," leaning forward across the table in the visiting room of MacDougall for emphasis. He has told his story before, to police, to courtrooms, but no one has listened so far. No one that is, except his family and his attorney.
After spending nearly two decades in New Haven's Superior Court's Office of the Public Defender, Tom Ullmann is no innocent, and he wouldn't say many of his clients are either. "I could probably count on one hand where I would go out on a limb and say this is an innocent guy," Ullmann says.
Indeed, for most public defenders, a day at work is less like an episode of Law & Order and more like a day spent at the Department of Motor Vehicles -- lots of waiting around and a mountain of paperwork to process. Overburdened by cases, they spend much of their day arranging plea bargains. Indeed, the courts today seem more about dispensing with cases than they are about dispensing justice.
Many people arrested for crimes are guilty as charged, and they don't care to take their cases to court. The problems arise when someone is charged with a crime he or she didn't commit. Our system, founded on the presumption of innocence, may have become so efficient at, and so tailored to, convicting the guilty that the safeguards ostensibly in place to prevent wrongful convictions may not work.
If you think it's not possible for a person to be convicted of a crime they didn't commit, think again. In their book, In Spite of Innocence, Michael L. Radelet, Hugo Adam Bedau and Constance E. Putnam documented 400 wrongful convictions in death penalty cases. Not all those mistakes were caught in time.
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In the aftermath of the shooting for which Valentine was charged, people couldn't get out of the diner fast enough. The parking lot emptied. One of the cars reported seen leaving the vicinity belonged to Valentine's friend, Tyrone Adams.
As it happened, Adams and Valentine were both known to New Haven's police department. Valentine was, at the time, already serving the last month of a five-year sentence for dealing drugs. He was out on a weekend furlough the night of the shooting. It's not hard to understand why New Haven detectives Joe Greene and Tony DiLullo thought Valentine merited a second look.
Defense attorneys are familiar with the police practice of picking up known criminals in the vicinity of a crime based more on a hunch than on hard facts. They call it the "bad guy" justification -- if police consider the suspect a bad guy to begin with, they can rationalize that even if he didn't commit the crime they are investigating, he should be locked up anyhow.
Around lunchtime on Sunday, the police paid a visit to Valentine's mother's house in West Haven, where Valentine was enjoying his last taste of home cooking before returning to prison that evening. His mother, Ednora Guimares, the captain of her neighborhood block watch, was surprised to see two detectives at her door. She ushered them in just the same.
Guimares' home is warm and cozy. It's the kind of home that smells of pot roast, with a little incense thrown in for good measure. During a recent interview, interrupted by her three grandchildren periodically coming into the living room for a kind word and a hug, homework questions and errand assignments before dinner, Guimares recalls that afternoon. It was to be the last time she saw her son outside of prison.
"Det. Joe Greene did most of the talking," Guimares recalls. "He asked what Daryl had had on. The clothes were sitting right there." She points to a chair in the family's living room. "A blue jogging suit."
Guimares says she offered the detectives the clothes and was surprised they didn't take them. Presumably they would have wanted to test them for the traces of blood that could have been in evidence had Valentine shot three people while wearing them earlier that morning.
"I said to them, 'If you feel my son did this, take him now. You're telling me two boys are dead,'" Guimares says. "They said, 'No, we just want to talk.'"
At this point, Valentine felt he had nothing to fear. "I believed I wasn't going to be arrested," he says.
The police were under the gun on this one, however. The night of the shooting, New Haven police were suffering from "blue flu." By law, police can't go on strike, but white officers had called in sick to protest a department decision to discipline a cop for killing a civilian.
At a time when New Haven's murder rate had hit record levels, this double-slaying in a crowded, popular diner made people especially nervous, and the pressure on cops to solve it was high. This was a shooting on the edge of middle-class Westville, not the projects. It was a miracle that more people weren't hurt -- and certainly future business could be.
The pressure was on Valentine, too.He received a visit from the two detectives investigating the case and says it was obvious they were trying to get him to confess to the crime. "Joe Greene kept telling me he had a witness who said I did it," Valentine recalls. "They told me, 'You did it.' I told him to go do his job. It wasn't me."
Guimares learned her son had been arrested for the double murder when she turned on the 11 o'clock news and saw Valentine's picture flash on the screen. She burst into tears. "I feel sorry for the boys' parents, about the boys who got shot, but the police just made a case," she says. "Yes, my son sold drugs, but he's not a murderer."
She had no money for an attorney, but she had heard that Ullmann was one of the best public defenders. She told her son to ask for him.
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Valentine differed from some of Ullmann's other clients in important ways. First of all,he wanted to go to trial. When Valentine had been charged with dealing drugs, he pled guilty. Even today, Valentine admits that, yes, he sold drugs. But this time was different. Charged with two murders, there would be no plea but "not guilty."
"I was ready to go to trial as soon as this happened," Valentine says. Because of the backlog of cases facing the courts, however, it took two and a half years for the case to reach a jury.
From Ullmann's perspective in preparing his defense, a number of factors suggested Valentine was not the shooter.
First is the lack of motive. If anything Valentine had a compelling reason to stay out of trouble. "That Friday, I had two more furloughs until I went into a halfway house," Valentine says. Unlike many other inmates, he had the support of his family. They had stood by him. He had been working in prison, sending money home every two weeks. His mother and his son, who was then just 7, needed him at home.
Convinced Valentine had no reason to shoot anyone, Ullmann began to investigate why the police arrested Valentine in the first place. In other states, police can't make an arrest without a probable cause hearing before a grand jury. In Connecticut, all police need to make an arrest is a warrant signed by a prosecutor and a judge.
In the affidavit filled out by Det. Greene for the arrest of Valentine, he outlines the following reasons for suspecting Valentine. An anonymous caller -- who to this day has not been identified but who is described in the affidavit as sounding like a white male -- phoned the police department after the shooting and described a car he says he saw leaving the scene.
It was a Buick Electra with tinted windows with a license something like 245-FGH. In the warrant, Greene then notes that Adams owned a Buick Electra, registration 245-FDG and that both Adams and Valentine admitted being at the diner that night.
Of course, so were dozens of other people. Ullmann hoped to find someone else willing to testify that Valentine was, in fact, in the dinerand not outside at the time of the shooting. Between the crowds and the panic surrounding the fight, however, none of the diner staff could say so with any certainty. Then, says Ullmann, "a lot of those people didn't want to talk."
One person in particular, Steven Roundtree, was there that night. He knew Valentine and, more importantly, Ullmann believes, knew Valentine was in the diner. "He refused to talk to us," says Ullmann. "Then he got killed."
Greene, meanwhile, was having more luck getting witnesses to cooperate. Using his persuasive powers, he had alreadyobtained two signed statements from women, one with a drug problem, the other with an outstanding warrant hanging over her head, to obtain a warrant for Valentine.
"Both of these witnesses were absolutely certain that the person they saw standing at the northeast corner of the diner and firing a handgun in the direction of the sidewalk or the front of the diner, was in fact Daryl Valentine," wrote Greene on the arrest affidavit. "Both of these witnesses have signed arrest photos of Daryl Valentine and both witnesses have given taped statement to detectives conducting this investigation."
Ullmann sent an investigator over to interview the two women again. They told the public defenders' office a different story. They both said police told them what to say.
"These women recanted immediately," Ullmann says. And they would do so again, under oath, at the trial.
During the first trial, Kristina Higgins testified that on Sept. 26, 1991, she gave a statement to the police as follows: that she was sitting in a parked car outside the diner with two friends when she saw a man standing near the front steps of the diner open fire. She says after the shooting the man jumped into the passenger seat of a waiting car and sped off. She identified Valentine as the shooter, saying she recognized him because she had dated one of his friends. She also picked him out of a photo array.
On March 8, 1994, Higgins told Ullmann's investigator that she had lied to police. At trial, she again recanted her initial statement recordedby the New Haven detectives.
According to court transcripts, she said she lied because police had given her $50, had threatened to lock her up on an outstanding arrest warrant if she did not cooperate. She added that police had promised to "take care of" her warrant if she told them Valentine was the shooter. She said she didn't actually arrive at the diner until after the shooting.
At the first trial, however, prosecutor Michael A. Pepper succeeded in making the cops the important witnesses. That, in retrospect, presents its own problems.
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The two cops in question, detectives Greene and Dilullo, have both been sued by people who were falsely arrested. In both instances, eyewitnesses turned out to be lying.
In 1991, for instance, Det. Greene was investigating the shooting of two men in New Haven. Witnesses described the assailant as dark-skinned, stocky and relatively short, maybe 5-foot-5-inches. Greene arrested Eric Ham, a light-skinned African-American who weighed about 165 pounds but stood an impressive 6-foot-5-inches tall.
Ham, who lived in the neighborhood where the shooting occurred, had gone with a friend to investigate the source of the noise and police lights that night. He was arrested and charged with murder and first-degree assault three weeks later.
Ham, a college student in Waterbury at the time, was held in jail forthree monthsbefore charges against him were dismissed. In 1996, a jury awarded Ham $1.4 million -- the highest amount ever awarded in a Connecticut wrongful arrest case -- in a false-arrest lawsuit filed against detective Greene and Lt. Michael Sweeney.
New Haven assistant corporation counsel, Peter Schaffer, represented the officers and the city in the Ham case. In 1996, Schaffer told the Hartford Courant he believed the investigation was properly conducted and that the wrongful arrest suit should never have been filed. "The fact that two witnesses who gave statements identifying Ham as the shooter and ultimately took them back is beyond the control of the police officers," he said.
Ham's attorney, William Palmieri doesn't see it that way. "This case was rotten with the inference that Joe Greene manipulated the testimony of the witnesses," says Palmieri. "In each of the cases of the two witnesses upon whom the police had relied, those witneses had given one or two prior statements which were consistent with the previous identifications of the shooter as being a stocky man."
Ham, Palmieri points out, stood head and shoulders above a crowd of nearly 20 people at the scene -- all witnesses who described the man with the gun as stocky, about 5-feet-5-inches. Palmieri says there was also evidence to suggest police coerced testimony to pin the crime on Ham.
"A young man named Timothy Davis testified that he was brought to the New Haven Police Department, that Joe Greene slammed his hands on the table, told him he was going to go to prison for up to 65 years and, falsely, told him that Eric Ham had confessed to the shooting in an attempt to get him to identitify Ham as the shooter," adds Palmieri.
"As the case [against Ham] was subsequently dismissed and as the civil verdict bears out, the jury did not believe the fabricated statement -- a statement fabricated at the urging of Joe Greene."
Similar allegations of coercion were brought against Det. DiLullo, who also worked on the Valentine case. He was named in a malicious prosecution lawsuit filed by Anthony Golino.
Golino was arrested for the high-profile stabbing death of Penny Serra at the Temple Street garage in New Haven in July 1973. He became a suspect when his ex-wife called police after they had a fight and said he had threatened to do to her what he did to Serra. After that, police began tailing him. He was known to cops for a history of low-level crimes. But on the eve of his trial in the Serra case, a dramatic DNA test proved he was innocent. The prosecutor promptly dropped the charges.
Golino sued the police for $40 million in 1993, citing harassment and wrongful arrest. On the stand, DiLullo admitted to misquoting statements people gave him on the arrest warrant and to leaving out the fact that one witness, the parking garage attendant, identified someone completely different as the killer.
The jury concluded that New Haven detectives had included false statements and omitted exculpatory information when making out the arrest warrant. They did not, however, rule that these errors had any impact on the judge'sdecision to sign the warrant. Because of this, the jury didn't find for Golino in his suit against the police.
Ullmann, meanwhile, couldn't convince the judge at either the first or the second trial judge to allow him to tell jurors about these lawsuits filed against the two police the prosecution was presenting as unimpeachable witnesses.
So jurors listened as two police officers testified. They heard taped statements given to the police by witnesses identifying Valentine. Then they heard those same witnesses recant their statements on the stand, after the prosecutor had presented them as "hostile" witnesses. It made the two women look less believable when they said the police tried to bribe or coerce their earlier testimony.
"People are much too accepting of police officer testimony," says Ullmann "Jurors don't want to believe police officers are lying."
Both Detectives Greene and DiLullo declined to comment on the record for this story. They both, however, pointed out that two juries at two separate trials found Valentine guilty.
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The verdict against Valentine, however, was not reached easily. At the first trial, the jury was out for five day. One of the sticking points was an additional eyewitness who had identified somebody other than Valentine. Byron McFadden was brought into the police station 11 days after the shooting to look at about 100 photographs. Among them was a photograph of Valentine, but McFadden, who knew Valentine, passed right over it. Instead, he selected a picture of someone completely different.
McFadden presented the shooter as someone who had a beard and was very dark-skinned -- unlike the light-skinned, clean-shaven Valentine. At the first trial, Ullmann says, McFadden even testified that he knew Valentine, and that Valentine was not the shooter.
At the first trial, two women were holding out for a not-guilty verdict. After a week of the jurors eating together, the two hold-outs on the jury found themselves at a table, alone. By the end of the week, the rest of the jury wasn't even speaking to them. The pressure proved to be too much. Although they were crying when individually polled by the judge -- at Ullmann's request -- both women returned guilty verdicts. One of the women later called Ullmann and apologized, but that didn't help Valentine.
Thinking about the verdict "gives me an eerie, nauseous feeling," one of the jurors at the first trial says today. This juror was surprised to learn that the two detectives had been sued for taking false statements and leaving out exculpatory evidence in other cases. If the jury had heard that, at least this juror would have "probably" voted not guilty.
Even without that evidence, this juror says the case never seemed fully convincing. The juror just kept thinking about the eyewitness who described the shooter as someone who (unlike Valentine) had a beard. Eventually, though, the pressure in the jury room wore her down.
"We owe it to the state of Connecticut to put this criminal behind bars," this juror recalls another juror, a state employee, vigorously arguing.
After the verdict was returned, Valentine turned to face the jury and the victims' families. He looked them right in the eye. "I feel I got convicted on a sympathy level for the victims' families," Valentine says. "I told them I'm sorry about their loss, but I told them I did not commit these crimes and I felt the system failed."
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Ullmann's next move was an appeal. He had good grounds for one. At the first trial, only one witness, Chris Roach, who was himself shot the night his friends died, identified Valentine as the shooter. And that's not what Roach told police at first.
According to court documents, when he was interviewed on the morning of the murders, police described him as uncooperative, initially saying he hadn't seen who shot the victims. He again refused to give a statement to the police two days later. When he finally gave them a statement two weeks later, he said he was drunk that night, had "blacked out" from drinking and didn't see the shooter, according to court documents.
Two years later, in February 1993, Roach changed his story. This time he said he was drunk, but he did see who shot his friends that night. He said he had been too afraid to say anything before. In March 1993, he picked Valentine's picture out of a photo array at the police station.
The timing of this sudden recall -- two years after the event and in exchange for a plea bargain agreement -- is the kind of testimony that Ullmann could, and did, challenge as questionable. Roach, after all, had an incentive to tell the police what they wanted to hear. He had just been extradited to Connecticut from Georgia, charged with a 1991 shooting.
The first time Roach identified Valentine as the shooter was immediately after the state agreed to drop criminal charges pending against him for attempted assault in the first degree, and two counts of reckless endangerment in the first degree. For that crime, Roach had faced a mandatory minimum sentence of five years, a maximum of 27 years.
Accordingly, Ullmann brought this out in court, along with the fact that the first time Roach identified Valentine he was in a Connecticut jail facing these charges. But there was more to the story that the jury didn't hear at the first trial.
Crystal Greene, a relative of Roach, had run into Roach just a month before the court case at New Haven train station. At that time, she said, Roach told her he didn't see the shooter. He told her he was going to testify that Valentine did it because someone had to "pay the price."
By excluding Crystal Greene's testimony at the first trial, the state Supreme Court ruled on appeal, "the trial court abused its discretion." And, as a result of these findings, the Supreme Court threw out the first guilty verdict to make way for a second trial. This was great news for Valentine. He bragged to other inmates he was going home.
Overall, the second trial didn't go well for Valentine, however. Although Ullmann was finally able to get Crystal Greene on the stand, she didn't make a very good witness. She seemed nervous and was easily confused by assistant state's attorney Jim Clarke, the prosecutor in the second trial.
Like Pepper before him, Clarke also presented the recanting witnesses as "hostile." In doing so, he let the jury know they weren't on the side of the "people" in the case of State v. Valentine. It came down to the word of Higgins, a woman with a criminal record, against that of Det. Greene, whose history as the defendant in a wrongful arrest lawsuit was off limits.
The second jury took eight days to reach a verdict, almost a court record in New Haven, according to Ullmann. They reviewed every piece of evidence the state had presented.
"The second trial was like reading a book you've read for the second time -- you've read it already," Valentine says. And the ending was the same as it was the first time. "My prayer, my hope, was that the system was you were innocent until proven guilty," he adds. He now no longer believes that.
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Valentine took the second verdict hard, but perhaps not as hard as his family. His oldest son, now 13, was particularly vulnerable. "Daryl sent money to that boy every two weeks," Guimares says. "When his father got convicted again, he freaked out."
Valentine's eldest son ended up in juvenile detention. His grandmother and Valentine's wife -- the boy's step-mother -- have since obtained custody. They're hoping with a little love, a little luck, things might work out. "It's hard on everybody," Guimares says. "I'm on disability and I keep a phone bill at $300 to $400 a month because I tell Daryl to call me. I worry about his son constantly. [Daryl] begs him, 'Don't let me look and see you in the cell next to me.'"
The second loss also hit Tom Ullmann hard."The only silver lining from a defense attorney's point of view is these were death penalty cases and the prosecutor did not proceed on it," Ullmann says. "[Daryl] has no faith in the system, never did -- and unfortunately, I was unable to bolster that faith."
Ullmann has sent Valentine's case to the appellate court for a second appeal. Still, he says, "I'm worried this Supreme Court's not going to reverse a conviction a second time."
Valentine, conspicuous in his prison issue orange jump suit, leans back in his chair as he tells his story, arms folded in front of him. He is studying for the GED, works while in prison and has had only five tickets for bad behavior in eight and a half years, most of those coming after he lost his appeal.
If other cases are any measure, Valentine's last, best hope is that someone will ultimately come forward with proof that someone else committed the crime. He knows there are people out there who know what really happened."We've continued to look for who the shooter was," Ullmann says. "You keep hoping you get a lead."
"I'm very angry. I got life for something I didn't do. I believe the police are crooked, the court system is crooked. It's just a script, a play, to me. The system already knows what it's going to do to you," Valentine says. "They always said, 'The truth would set you free,' but I could see that didn't happen. When I came to jail in 1989, I used to hear inmates saying they were innocent. I used to laugh at them. You don't think nothing like this can happen."
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