Attorneys for seven men seeking to vacate their convictions in the 1984 murder of Catherine Fuller concluded their case today, arguing that the government's already-weak case was undermined by powerful exculpatory evidence withheld from defense attorneys at the time.
Williams & Connolly attorney Robert Cary, a lead counsel for the defendants, told District of Columbia Superior Court Judge Frederick Weisberg that police and prosecutors suffered from "tunnel vision." Their belief that Fuller was killed by a large group of people led them to elicit false statements from vulnerable young people, Cary said, and withhold evidence that pointed to other suspects.
Fuller was found brutally beaten to death in a Northeast Washington alley on Oct. 1, 1984. The defendants' motion to vacate centers on a claim that prosecutors withheld evidence supporting an alternative theory of the crime that only one or two people were involved. That evidence, in addition to several recanting witnesses and other new evidence, justifies overturning the convictions, Cary said.
Following six hours of arguments today from defense lawyers, Assistant U.S. Attorney Kacie Weston began her closing arguments at the end of the day and is expected to conclude tomorrow. The government has maintained that the lead prosecutor properly exercised his discretion in deciding what evidence to turn over, that the recanting witnesses are not credible and that inconsistencies in testimony identified by defense counsel support the government’s theory that the crime was a fast-moving and complicated series of events.
A District of Columbia Superior Court jury convicted eight men in Fuller's death in 1985 and acquitted two other men charged in the crime. Seven of the convicted men moved to vacate their convictions in 2010; the eighth defendant died in jail. Today's closing arguments followed nearly three weeks of testimony from more than a dozen witnesses.
The defendants have to prove that information prosecutors didn’t disclose would have been material to their case and resulted in a different outcome at trial. For the other half of their case, which is claim under the Innocence Protection Act, the defendants have to prove their actual innocence. The hearing began April 23.
Donald Salzman of Skadden, Arps, Slate, Meagher & Flom, an attorney for one of the defendants, began the day by summarizing scientific evidence presented over the past three weeks. The defendants’ experts, while not minimizing the severity of Fuller’s injuries, concluded that the autopsy and crime scene didn’t support the government’s theory that multiple people assaulted her, Salzman said.
Salzman also summarized testimony comparing Fuller’s murder with the murder of a woman referred to as “A.M.” One of the defendants’ Brady claims involves statements from witnesses who placed a man named James McMillan at the scene of Fuller’s death; McMillan was convicted in A.M.’s death. Both murders took place in the same area and around the same time, and involved anal sodomy, Salzman said. He pointed to testimony that such homicides are rare, and that a person who commits that type of act is more likely to do it again.
Miller & Chevalier attorney Barry Pollack, another attorney for the defendants, spoke about the power of what he called the “urban myth” surrounding Fuller’s death. As police “knowingly or unknowingly” fed witnesses information supporting the idea that a large group of people committed the crime, Pollack said, that myth spread quickly around the neighborhood.
Pollack outlined inconsistencies in statements from different witnesses, from where the alleged perpetrators entered the alley to who was there and who carried out what type of attack on Fuller. Different witnesses gave inconsistent testimony that didn’t help them minimize their own role or a friend’s alleged role in the crime, a sign that they didn’t really know what had happened and were bowing to police pressure, Pollack said.
Of the seven defendants moving to vacate the convictions, one is also arguing that he suffered from ineffective assistance of counsel. Defendant Clifton Yarborough’s attorney in 1985 never investigated Yarborough’s intelligence level, Williams & Connolly’s John Williams said, and failed to learn that Yarborough had mild mental retardation. Yarborough’s “limitations” would have been important to address his vulnerability to contamination by police before giving a videotaped confession, Williams said.
Defense counsel spent most of the afternoon summarizing the Brady claims. Besides statements placing McMillan on the scene, prosecutors also did not disclose that a woman named Ammie Davis told police that a man named James Blue killed Fuller. Any eyewitness account of a crime must be considered Brady evidence, O’Melveny & Myers partner Michael Antalics argued, even though police were skeptical of her account. Davis was killed just before the Fuller murder trial and Blue pleaded guilty to her death.
“You can’t get any more Brady than this type of evidence, Your Honor,” Antalics said.
Pollack said the three witness statements placing McMillan in the alley or around the neighborhood that day should also be considered Brady evidence. He cited testimony from Skadden’s Michele Roberts, who represented one of the defendants acquitted during the 1985 trial and said evidence supporting a “counter-narrative” of one or two defendants could have changed the course of the case.
Although defense lawyers at the time knew that at least one witness had seen another person in the alley, later identified as McMillan, Pollack said they didn’t push for disclosure of that person’s identity because the government never revealed material information, such as the fact that McMillan had already been arrested in connection with other assaults on women in the neighborhood.
“The court cannot have confidence in the outcome of this trial,” Pollack said.