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Marvin Reed, David Moran, Deshawn Reed, and Shannon Gholston in Wayne County Circuit Court, April, 2

The U-M Innocence Clinic

Law students work to right injustices

by Michael Betzold

posted 7/10/2009

This morning, two men who were wrongfully convicted of attempted murder finally got the news they'd been waiting for years to hear. And the U-M Law School's Innocence Clinic won a spectacular victory.

On a Sunday afternoon in March 2000, Shannon Gholston was shot while driving down a street in Ecorse. At the hospital, he named Deshawn and Marvin Reed as his drive-by assailants.

Attorneys for the Reeds, who are nephew and uncle, produced six witnesses to back up their alibis. Two others testified they saw a man step out of an alley and fire the shots that left Gholston paralyzed. One of them identified the shooter as Tyrone Allen.

The prosecution's only evidence was Gholston's statement. But that was enough for the judge hearing the case, who convicted both the Reeds.

In October 2000, Tyrone Allen was killed during a carjacking. Police found a .38 on his body. The judge refused a motion to delay sentencing for a week until ballistics tests could be completed. He sentenced Marvin to twelve to thirty years and Deshawn to seventeen-and-a-half to thirty.

Soon afterward, the tests showed the gun found on Allen was the one that shot Gholston. Yet the Michigan Court of Appeals upheld the Reeds' convictions, in an opinion that never mentioned the literal smoking gun. The state Supreme Court refused to review the case.

When the Reeds went to prison, Zoe Levine was in high school in Washington D.C., Matt Cronin was a junior at Shenendehowa High in upstate New York, and Katya Georgieva was a teenager in Bosnia.

All three are now U-M law students, and this past winter term, they enrolled in a new clinical course. Their biggest assignment: to get the Reeds out of jail.

On April Fool's Day, Levine, Cronin, and Georgieva join the perps, punks, and pinstripes in the groaning elevators of Detroit's Frank Murphy Hall of Justice. They're headed for Wayne County Circuit Court judge Patricia Fresard's eighth-floor courtroom to ask her to grant the Reeds

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a new trial.

The students will question the witnesses today, but they have heavy-duty backup: Bridget McCormack, the law school's dean of clinical affairs, and David Moran, whom she hired away from Wayne State University last year to help her open the Michigan Innocence Clinic.

Innocence projects aren't new-in recent years, they've helped overturn the convictions of hundreds of people, primarily through DNA tests. Most of these were rape cases. In most other felonies, there is usually no biological evidence-but Moran, who spent eight years at the State Appellate Defender Office, believes there are just as many wrongful convictions. The U‑M clinic is the first in the nation to take only non-DNA cases.

Deshawn Reed is one of more than 3,000 inmates who've written the clinic. So far, Moran and McCormack, aided by students and some volunteer attorneys, have read about 300 of these requests. Of those, they have taken on seven so far. They've grabbed the low-hanging fruit-the most flabbergasting legal nightmares.

One clinic client, Dwayne Provience, was convicted of murder on the testimony of a man who claimed he had seen Provience shoot the victim from a yellow Buick Regal. Not only did that contradict all seven people police interviewed at the scene, but Provience bought the Regal a month after the shooting. Provience's attorney, since disbarred for trying to bring marijuana into a courthouse, failed to call any of the seven witnesses. Provience's accuser, now dying of cancer, has sworn in an affidavit that he made up the story as part of a deal to get out of jail.

Then there's Lorinda Swain of Calhoun County, convicted of performing oral sex on her adopted son when he was six to nine years old. She's been in jail for eight years based solely on the son's testimony at age fourteen, when he claimed Swain had assaulted him each morning while his younger brother waited outside for the school bus. Her son, now twenty-two, has recanted, saying he made up the story as an explanation for his own behavior after he was caught engaging in inappropriate sexual conduct with a younger cousin. The Innocence Clinic also has testimony exonerating Swain from a neighbor, the boy's younger brother, and the school bus driver.

In another chilling case, Karl Vinson was convicted in 1986 for the rape of a ten-year-old girl. The semen found at the crime scene was tested and did not yield Vinson's blood type-but the prosecutors argued that he was a "non secretor" whose blood type would not show up in other bodily fluids. His fingerprints were not found either-but the prosecutor explained that away by claiming that nonsecretors don't leave fingerprints either. That's not true-and Moran calls it an example of the "junk science" that often leads to wrongful convictions.

DNA testing was available by the mid-1990s and might have cleared Vinson, but Detroit police by then had disposed of the evidence. Early this year, a U‑M chemistry professor tested Vinson in prison. It turned out that he actually is a secretor, meaning his blood type should have been detectable in semen. The students will use that and other new evidence to try to reopen his case.

The Reeds' story, however, may be the strangest of all.

When she signed up for the Innocence Clinic class last fall, Zoe Levine figured the criminal justice system wasn't perfect. But working on actual cases "shatters your image of a balanced and fair system," she says.

As she describes it, the Reeds' story sounds like a sinister conspiracy fable-there were so many moments when it could have turned out differently. For instance, the Reeds waived their right to a jury trial, but the judge believed Gholston above all else-a jury might have had a more mixed response. A key police report about Tyrone Allen admitting to the shooting was never turned over to the defense. Well-meaning defense attorneys fumbled the appeal.

The ineffectiveness of appellate counsel is one key prong in U-M's motion for relief of judgment. The other is the victim's startling recantation.

In 2005, Gholston gave a deposition to a private investigator. He said that when he was at the hospital after the shooting "I could remember certain different people coming, like, 'They said D. Reed shot you, man.'"

"So you never saw Deshawn Reed hanging out the [car] window and shooting you?" he was asked.

"No, I lied. . . . I mean, I just was going by what I heard. . . . I didn't see him, period. . . . I don't know who shot me."

Levine and other students have checked out the crime scene, talked to potential witnesses, and dug up reports and evidence. But Gholston's testimony is the key to their case. This past December Gholston gave another deposition at the U‑M and again recanted his identification of the Reeds. Still, Levine admitted a few days before the April hearing, "I'm not 100 percent sure of what Shannon will say in open court." As the Reeds' advocate, she's feeling the pressure: "Their lives are in our hands."

April 1, the courtroom benches fill with dozens of relatives and friends of the Reeds and the Gholstons: the victim's supporters in the back row, the Reeds' in front of them. Half of Ecorse, it seems, has a rooting interest in the outcome-it's the downriver Detroit version of the Hatfields and the McCoys.

At 9:15, Marvin and Deshawn Reed enter in green prison uniforms. Deshawn carries a huge file folder that he sets down at the defense table. The convicted men face the audience, their backs to Judge Fresard, a striking figure with long brown hair, fashionable glasses, and a rarely changing expression of bemused exasperation.

Stiffly, Matt Cronin steps to the podium and calls one of the Reeds' appeals attorneys to the stand. He doesn't finish a sentence before Wayne County assistant prosecutor Carolyn Breen pops up.

"Objection-relevance."

With glasses scrunched down on her nose, a no-nonsense pantsuit, and a put-upon demeanor that heats up to haughty indignation, Breen cuts the students no slack. They've been thrown into a shark pit, and she bites frequently.

Cronin questions one of the Reeds' appellate attorneys. The student is well rehearsed and articulate, but the attorney seems befuddled and gives rambling answers.

"Objection-narrative," Breen protests with an audible sigh.

When the judge calls a break, the defense team scurries into a hallway frenzy of frantic cell phone calls. Their star witness is a no-show. Shannon Gholston lives with his parents, but he left their home last night, and the U-M team can't locate him. Levine looks like she's crammed all night for an exam only to discover she's been locked out of the classroom.

Back in court, Georgieva takes over. In tall heels, she's a natural, confident and in command. She has success with another appellate lawyer, a woman who's a clearer and more cooperative witness. But the argument over whether Gholston got incompetent representation turns on murky legal points.

Finally, as the morning turns to afternoon, the bailiff rearranges a few tables and chairs and moves the witness's microphone. There is a whispered conversation in a huddle around the judge's bench, and Fresard orders the courtroom cleared. The person everyone came to see will testify without anyone from either family present-presumably to blunt any charges that he is being influenced by the crowd.

Deshawn Reed leans across the defense table and whispers something to Bridget McCormack, who pats him on the shoulder. The doors open, and Shannon Gholston is wheeled right past the men his words sent to jail eight years ago. Gholston is wearing a green sweatshirt, gray pants, and green tennis shoes. His hair is braided into cornrows.

There is another conference at the judge's bench. It's quiet as church.

Deshawn Reed's brow is knitted, and he holds his chin in his fist.

Zoe Levine mounts the podium and in a shaky but firm voice asks the big question.

"Do you know who shot you?"

"No, I don't," says Gholston softly.

"Did you feel any pressure to come here?"

"No. I never felt any pressure."

Deshawn Reed is biting his lip as if to hold back tears.

"Did you tell anyone why you testified falsely at the trial?"

"I've been trying to tell people the truth for several years."

Surprisingly, the prosecutor asks Ghol ston only a few questions. After all that anxiety, he's on the stand less than fifteen minutes.

On lunch break, Levine looks visibly relieved. She tells a reporter: "At least I kept my food down."

Not all challenged convictions, of course, are wrongful. Even DNA tests confirm guilt slightly more often than they establish innocence. As the afternoon session begins, it's clear that the prosecutor believes that Shannon Gholston was telling the truth when he fingered the Reeds-and is lying now.

Breen calls friends and relatives of the Gholston family to the stand to paint a vivid picture of a family under siege. A coworker of Gholston's sister Vanessa Isom Jackson testifies that Isom Jackson was often reluctant to go to her Ecorse home for fear of being harassed. Gholston's sister Sherrie Gholston Truitt says her parents have gotten threatening phone calls, have been followed in their car by Deshawn Reed's brother Tienail, and have had people ride past their house and shout "Hope you die!"

Another coworker testifies that she was riding with Isom Jackson-with her own autistic child in the back seat-when Tienail Reed's red Mustang rode menacingly on their rear bumper for several miles.

On the stand, Isom Jackson angrily testifies that she's had trash thrown on her lawn and at her, including a strawberry milkshake. Breen asks if she can identify the milkshake thrower, and Isom Jackson points out a woman sitting in back among the Reeds' supporters.

Most damning of all, Isom Jackson says there was a deal: a truce in exchange for the recantation. Her brother "told me he had made an agreement that they were going to leave us alone, that all of this was going to go away," she says.

The prosecutor has made a case that Shannon Gholston committed perjury-but he's no longer in court to defend himself. That angers Moran.

"It's a basic rule of law that you don't accuse someone of lying and not give that person a chance to respond," says Moran in the hallway. But in this hearing, the rules are whatever the judge allows, and Fresard's attitude is extremely lenient.

Like Breen, the defense believes that Gholston is being pressured-but they think the pressure is coming from his family not to recant, to the point of being virtually held hostage. Moran says his parents have not allowed him to take phone calls and won't let the U-M team inside the house.

"In all my years as a lawyer I've never had a witness who's been so hard to talk to," Moran says. "His parents have kept him locked away."

Contrary to usual legal practices, Breen never told the defense what witnesses she was calling or what they would testify to. Not only are the students getting a lesson in courtroom surprises, they are operating in uncharted territory.

"It would be like having medical students perform open-heart surgery," says Moran.

Levine, Cronin, and Georgieva came prepared to make their closing arguments today. Instead, they're now scrambling to find rebuttal witnesses.

Luckily, Tienail Reed is in court, so they call him to the stand. He denies every single threatening act the prosecution witnesses accused him of doing-and says that Gholston "seemed very nervous about his family knowing" he planned to recant.

The judge continues the hearing to the next day, and the U-M team, summoning its collective adrenaline, pulls a virtual all-nighter investigating some of the claims raised by Breen's surprise witnesses. Coming to court the next morning, Zoe Levine confesses she's gotten very little sleep.

She calls Gholston's friend Eric Hopkins, who had driven him to court the previous day and to the December deposition at the U-M. He testifies the recantation was entirely Gholston's idea, that he wanted to get it off his chest even though his parents were dead set against it.

Dramatically, Bridget McCormack then puts Deshawn Reed himself on the stand. Smiling but chewing on her fingernails, she immediately asks, "Did you shoot Shannon Gholston?"

Breen objects but is overruled.

In a low, controlled voice, Reed says he was at a friend's house the day of the shooting. He denies orchestrating a campaign of intimidation, making any deal with Shannon, or trying to get him to recant his testimony.

Before he finishes, Fresard adjourns the case for another three weeks.

On April 23 Deshawn Reed returns to the witness stand. McCormack asks him what Shannon Gholston said when he passed by the defense table after testifying April 1.

"He said he was sorry."

On cross-examination, Breen asks: "But he didn't say what he was sorry for, did he?""No, ma'am."

Cedric Aaron, a friend of both the Reeds and Gholston, testifies that Gholston told him years ago that he didn't see Deshawn shoot him and that he suspected that Tyrone Allen had. According to Aaron, Allen and Gholston dealt in stolen auto parts. He says Allen told him that Gholston owed him money-and that if Gholston didn't pay up, Allen was going to shoot at his house or car.

McCormack then calls Detroit police officer Robert Thomas to the stand. He tells the court that he visited Gholston in his hospital room right after the shooting and asked him if he saw the shooter. Gholston, unable to speak, blinked a "no."

The testimony, which has never before emerged, sends the prosecutor into high dudgeon. Indignant, Breen asks why Thomas never told anyone about Gholston's blink. "I wasn't asked," he says, adding, "I was praying for everyone. I didn't want to choose sides."

"You're a police officer, and you did nothing to report this to anyone?" the prosecutor scoffs.

In the hallway on a break, the three students are preparing to finally launch their closing arguments, going over questions the judge might ask them.

Back in court, however, the prosecutor asks for time to rebut Thomas's surprise testimony and prepare her own closing arguments. The case is adjourned again, until May 14.

By the time court reconvenes, Matt Cronin and Katya Georgieva have already left town for the summer. Zoe Levine has somehow made it through her finals while still working for the Innocence Clinic. The Reeds' case, she says, "has certainly taught me to roll with the punches and digest daunting news quickly and then just move on with the work." Two days after graduation, she finally rises to make her closing argument.

Her confidence seems to have grown by leaps and bounds. In a rock-steady voice, she tells the court that "Mr. Gholston testified courageously, truthfully, and effectively" in the face of great obstacles. "His efforts require us to listen," she adds. "He's been trying to tell the story for five years. He's finally done it."

Standing next to Breen, she excoriates the prosecutor for bringing witnesses to impugn Gholston's motives without ever asking him why he changed his testimony: "The prosecution didn't ask because it was afraid of the answer."

David Moran then explains how the appellate attorneys "dropped the ball" because they failed to properly argue the "smoking gun" found on Tyrone Allen-instead, "they only mentioned it in passing." He also argues that Officer Thomas's testimony is crucial new evidence.

"If Tyrone Allen were alive today," Moran concludes, "based on what we know now, the worst prosecutor in this building on her worst day would have no trouble convincing a jury to convict Tyrone Allen."

When it's Breen's turn, the prosecutor is indignant. She scolds, "Recanting witnesses are frowned upon," and at the same time claims that Gholston "did not recant." She argues that Thomas wasn't credible because he didn't come forward for nine years.

Of the smoking gun, Breen says: "They all know each other. The gun could have passed through the neighborhood. Guns are always passing around."

In rebuttal, Bridget McCormack says, "I'd like to see a prosecutor convince a jury that it was just a coincidence" that the gun that shot Gholston ended up on the body of the same man who had threatened to shoot him-and who a witness had seen firing from the alley that day.

There's another piece of evidence, too. It turns out that a few hours after the shooting, Allen told his girlfriend, Anitra Dalton, that he had shot Gholston. Dalton told her uncle, a Wayne County sheriff's deputy, who called the Ecorse police. Yet the call was never reported to the officer in charge of the case nor to the defense team. That alone could be the basis of an appeal in federal court.

But that likely won't be needed now. Two months after the final court hearing, Judge Fresard finally ruled in the Reeds' favor July 10. The Innocence Clinic planned to immediately move to have them released on bail, and Moran hoped to get a hearing on a bond motion as early as Monday, July 13. If the motion is granted, the Reeds would be released from prison.

While the prosecution could appeal Fresard's ruling or bring another trial, Moran believes that it won't-and that the Reeds' long legal nightmare will finally come to an end. "No prosecutor would want to retry that case given what we know now," he predicts, "so there's no way there will be a retrial."

Maria Miller, spokeswoman for the Wayne County Prosecutor's office, would say only that the prosecutor "will make a decision regarding this matter in the next several weeks."

Once the Reeds' case is resolved, next year's class will move on to Dwayne Provience, Lorinda Swain, Karl Vinson, and other clients. Behind them, there are thousands more letters from other prisoners to review. The Innocence Clinic will still have plenty of work to do.

Update: the Gholstons were released on July 31.    (end of article)

[Originally published in July, 2009.]

 

 
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