THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, May 2, 1995 TAG: 9505020258
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JUNE ARNEY AND JOE JACKSON, STAFF WRITERS
LENGTH: Long : 196 lines
A recent recantation by the key witness in the capital murder case of condemned inmate Dennis W. Stockton may not be enough to win him his freedom - or even a new hearing - this close to his execution, experts say.
Yet recent court rulings do offer a slim chance that new evidence will be heard. And perhaps as significantly, public sentiment has paved the way for new trials and exoneration in several highly publicized cases in the past decade where condemned men produced new evidence of innocence - evidence the courts were reluctant to consider because of procedural restrictions.
``The courts have been remarkably indifferent to recantation evidence, but the public has been very disturbed by the notion,'' said Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta.
He cited the capital case of Alabama inmate Walter McMillian, released from prison in March 1993 after spending nearly six years on death row for a crime he didn't commit. All three prosecution witnesses recanted. His claims of innocence were chronicled on television's ``60 Minutes.''
``Once the `60 Minutes' piece ran, they could not release McMillian fast enough,'' Bright said.
And recantation evidence coupled with evidence of aconstitutional violation gives death-row inmates an even better chance of gaining the court's ear.
With the recantation on April 20 by witness Randy G. Bowman, and Stockton's previous claims that prosecutors withheld evidence during his original trial, ``Stockton does have a legal niche now that he didn't have'' earlier, said William S. Geimer, a law professor at Washington & Lee University.
Stockton was charged in 1982 with the 1978 murder of Kenneth Wayne Ardner, 18, whose body was found near Mount Airy. Ardner was shot in the head and his hands were hacked off above the wrists. Ardner's mother said she last saw her son alive with Stockton.
Bowman's recantation comes as Stockton's appeals have nearly run their course and he is about to be given an execution date. Wednesday is the deadline for Stockton's lawyers to file their plea for final review of his case by the U.S. Supreme Court. After that, Stockton's last option is to seek clemency from Gov. George F. Allen.
On Wednesday, Stockton's lawyers will file a petition for a writ of certiorari - asking the Supreme Court to review the records and determine whether there have been any irregularities in Stockton's case. The writ would be issued if at least four of the nine justices vote to hear the case.
The lawyers - Steve Rosenfield of Charlottesville and Anthony King of Washington - also plan to include copies of newspaper stories of Bowman's recantation in their plea. ``There's probably not a legal basis for this, but this is an innocent man we're dealing with,'' King said.
Stockton's lawyers say they hope, at the very least, to win Stockton a new trial on first-degree, not capital, murder charges - an important difference because first-degree murder is punishable by a maximum of life in prison rather than death.
Still, said Rosenfield, ``Statistically, it's very difficult for someone condemned to win a reversal. It has never happened in Virginia on a recantation.''
Stockton has steadfastly maintained his innocence for 12 years and has always said that the first time he saw Bowman was at his probable cause hearing on Aug. 17, 1982.
Bowman testified that he was selling stolen goods at the house of felon Tommy McBride when he heard McBride offer anyone $1,500 to kill a young man who allegedly cheated him on a drug deal. Before he could answer, Stockton took the deal, Bowman said then.
But in an interview on April 20, Bowman, 40, said: ``I don't know if they (McBride and Stockton) made a deal. . . . I was in there to sell something. The subject came up . . . how he (McBride) would like to have him dead, so I'm out of there. I've never said I heard - I didn't hear Stockton say, `I'm going to do it.' ''
In light of Bowman's recantation, Anthony Giorno, the prosecutor in Stockton's 1983 trial, has said the case should be reinvestigated. Although he is skeptical of Bowman's belated change of heart, Giorno said he is not sure he would have pursued capital murder charges if not for Bowman's testimony.
``I don't think I could sleep at night if I thought someone was on death row because of perjured testimony,'' Giorno said. ``If I had reason to believe that what (Bowman) was telling me in 1983 was not the truth, I wouldn't have pursued a capital murder conviction.''
In 1989 and 1990, Stockton's lawyers received evidence that Giorno may have promised Bowman a deal in exchange for testimony - information Stockton's lawyers didn't receive for the trial.
Affidavits by two former Patrick County sheriff's officials showed that Bowman was upset because promises allegedly made to him were not kept. Bowman allegedly wanted a reduced sentence or to be moved to another prison in exchange for his testimony, but was upset when he didn't get the favors.
Giorno denied making secret deals with Bowman.
Bright says any evidence of deals for testimony can only help Stockton's case for innocence.
``When you have the case hanging on this one person - already of dubious credibility - and that person now says that the testimony they gave under oath at trial is not true, you certainly have the probability that an innocent person has been convicted,'' Bright said. ``One would hope that if there's any sense of justice in the state of Virginia, this case would be reopened and this person not executed.''
Yet suppressed evidence is considered ``new'' evidence in Virginia, and according to state law, new evidence can be introduced only within 21 days of conviction.
It is a legal Catch-22 that has led experts to call Virginia the worst state in the nation for both unfair trials and a lack of due process protection - even when considerable doubt concerning an inmate's guilt is found.
A bill to change the 21-day rule was proposed in 1994 by Del. Clifton A. Woodrum, D-Roanoke, but failed to pass. It could have played a role in the new evidence in Stockton's case.
The proposed bill would have allowed new evidence to be introduced up to 60 days before execution. The evidence would have to be heard in open court instead of just by a judge, and those who testified would do so under penalty of perjury.
``It could cover a situation in which evidence was recanted, but it would have to be a powerful recantation,'' Woodrum said.
An October 1993 U.S. House Judiciary Committee report said that 48 innocent men had been freed from death rows across the nation since 1972. Of the 48 cases detailed in the report, 52 percent - or 25 inmates - ``were convicted on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence,'' the report said. ``Innocent persons are still being sentenced to death, and the chances are high that innocent persons have been or will be executed.''
Of the nation's top five states for executing prisoners, Virginia was the only one that had not released inmates after reviewing new evidence, the report showed.
One key factor in whether a recantation is more believable than the original testimony is what motivations may exist for the changed testimony, said Richard Dieter of the Death Penalty Information Center.
``Guilt and conscience - that's usually why people recant,'' said minister James McCloskey, founder of the New Jersey-based Centurion Ministries, which investigates claims of innocence. A decade of investigations by McCloskey has resulted in the release of 15 innocent men from prison. One had been sentenced to death; the other 14 to life in prison. Of the 15 cases, 14 were released after prosecution witnesses recanted, McCloskey said.
``These witnesses feel terrible,'' McCloskey said. Although refusing to comment specifically on Bowman's statements, McCloskey said the recantations he'd seen followed a general pattern. The witnesses often were coerced into making false statements by law enforcement officials. They recanted only after someone - an investigator or reporter - came to them. And the complete story took multiple interviews.''
This was what happened in the death-row case of Clarence Brandley, convicted in 1980 for the rape and murder of a high school cheerleader in Texas. Brandley received a new trial when evidence collected by McCloskey and others showed that prosecutors suppressed evidence of innocence and that key witnesses lied. In 1990, all charges against Brandley were dropped.
Brandley, who is black, was sentenced to death for the 1980 murder of 16-year-old Cheryl Dee Ferguson, who was white, court records show. Suspicion immediately turned to Brandley and the high school's four other janitors. One of the janitors later testified that police looked at Brandley and said, ``Since you're the nigger, you're elected.''
McCloskey - who said he now averages 1,000 calls for help a year - was called into the Brandley case 3 1/2 weeks before his execution date of March 26, 1987.
He approached John Henry Sessum - one of the white janitors whose testimony had condemned Brandley, their supervisor. Two other janitors had actually killed the girl, but Sessum had kept that secret for seven years.
On March 17, Sessum made a full statement on video. ``He admitted that he lied,'' McCloskey said. ``He said he'd lied because the murderers threatened him and he was afraid of the Texas Ranger. . . with whom they'd developed the story during a walk-through of the scene.
``He fought his way through his fears to recant,'' McCloskey recalled. ``He'd had nightmares ever since. He said he stood by and let this girl be dragged to her death. . . As he said to me, `I let one innocent person go to her death. I couldn't let another.' ''
The federal government's first death-penalty case since the death penalty was reinstated in 1976 is now on hold because of the recantation of the witness who made the murder-for-hire case against David Chandler.
In that case, marijuana dealer Chandler was convicted in 1991 of ordering the murder of a police informant and was sentenced under the federal ``drug kingpin'' law of 1988. He was to be executed on March 30, but a federal judge halted the execution on March 21 based on new evidence of law enforcement corruption.
Chandler, 42, was accused in the 1990 murder of a member of his marijuana ring who had become an informant. The triggerman, Charles Ray Jarrell, said he was promised $500 but never got the money; he testified against Chandler and got 25 years in prison. In exchange for his testimony, prosecutors dropped Jarrell's murder charge.
But a motion filed by Chandler's lawyers said that three of the government's five witnesses recanted and the other two were discredited. The court papers allege that the prosecutor told the government's star witness what to say during trial.
Jarrell's son also recanted, claiming that prosecutors threatened him with a murder charge if he didn't testify that he heard Chandler offer his father money to kill Marlin Earl Shuler. ILLUSTRATION: Color staff photo by Paul Aiken
Dennis Stockton.
B\W photos
Randy G. Bowman, 40, recanted his testimony that he heard Stockton
accept a murder-for-hire deal.
The body of Kenneth Wayne Ardner, 18, was found in 1978.
KEYWORDS: MURDER DEATH ROW CAPITAL PUNISHMENT RECANTATION MURDER
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