Freeing the Guilty
Bethell, Tom
Freeing the Guilty by Tom Bethell United States of America v. Willie Decoster, Jr. is a ponderous title, suggesting the awesome weight of the United States government being brought to bear...
...Still, Fred Eley, one of the confessed participants in the robbery, flatly contradicted Decoster's tales of his innocence, and Decoster was found guilty by the jury...
...Officer Carl Eugene Box chased the third man, who had taken off in a different direction, entering a nearby hostelry called the D.C...
...this time with a lawyer, whereupon he was acquitted...
...This is explicit in their complaint that Decaster was prejudiced by a failure to seek out possible defense witnesses in the bar or in the D.C...
...Officer Ehler was the only witness, and as a result of his testimony—" Mr...
...But a failure to conduct such investigations constitutes prejudice, thus giving grounds for reversal...
...Taylor had a straight razor in his pocket...
...But at about this time Roger Crump, the victim in the case, was seriously injured in an automobile accident in Georgia...
...The Decoster opinions are deftly crafted to that end...
...Decoster and Eley also traveled from the jail to the courthouse on the same bus...
...Decoster and Mr...
...In the interim, however, there had been a most unpromising development as far as Decoster was concerned: his two co-defendants, Eley and Taylor, had gone on trial before Judge Waddy in June 1971, and in the middle of the trial both had changed their minds and decided to plead guilty to the lesser charge of robbery...
...Waddy, clearly, saw through the ruse, realized that Keren, not Decoster, was in the process of becoming a victim of "the system," and denied the retrial motion on April 23, 1975...
...At that time Roger Crump emerged from a bar, known as the Golden Gate Club, in Washington, D.C., and was set upon by three men, one of whom held a weapon in his hand...
...It was this appeal that was finally heeded, in October 1976, with the reversal of Decoster's conviction signed by judges Bazelon and Wright...
...The crime was committed at about six o'clock in the evening of May 29, 1970...
...The following week, on June 8, 1970, Decoster was brought before a second judge, General Sessions Judge William C. Pryor, for a preliminary hearing...
...On April 11, 1972, it was ordered that Calvin Davison, Esq., of Reavis, Pogue, Neal & Rose, a big corporate firm, should represent Decoster...
...Decoster's "alibi" was corroborated, and Keren put Eley on the stand, but then something went wrong, because Eley changed his story and said he had seen Decoster fighting with Crump...
...Keren, in his cross-examination of Crump, brought out that because of the ill effects of his accident Crump could no longer identify Decoster or say who had wielded the razor in the robbery—this being such an effective line of defense that it was later incorporated into Decoster's appeal...
...Freeing the Guilty by Tom Bethell United States of America v. Willie Decoster, Jr...
...In the former case a higher court overturned a wrongful verdict— the accused lacking a lawyer...
...Bazelon, Wright, and MacKinnon looked this over, and what their innermost thoughts were we cannot say...
...In deference, as it were, to Decoster, who would now be kept waiting in jail even longer because of the new delay, the judge released him two days later to the custody of an organization called the Black Man's Development Center, contrary to the advice of the Bail Agency...
...It had not been uppermost in Keren's mind to call them because, having already pleaded guilty, they would be likely only to implicate Decoster further (as Eley did, in the event...
...He added, interestingly, "in light of Decoster's posture and attitude during the course of these proceedings, this court cannot say that defense counsel substantially violated any one of the duties owed to his client...
...The case was duly called for trial on January 12, 1971, but a continuance was immediately granted by District Court Judge Joseph Waddy when the prosecutors revealed that Crump had suffered injuries and was still in the hospital...
...In short, as MacKinnon commented, the distinguishing feature of this case is that it "creates a format in this circuit for the easy reversal of criminal convictions...
...But not only had Keren not interviewed them, he did not know where they were...
...His name was Willie Decoster, Jr...
...Just as he was being robbed, however, two plainclothes police officers drove by in a patrol car, saw the holdup taking place, and swiftly came to the rescue...
...It just seems like, you know—well, really, I left home when I was at an early age and I didn't have that much confidence and I just hooked up in the wrong places and in the wrong ways...
...But it can't be too strongly stressed that at this stage the competency of Decoster's representation was not at issue...
...Scarcely the words of an innocent man unjustly convicted...
...If the Decoster opinion holds, it will henceforth be incumbent upon defense counsel to investigate the entire universe of fabricated defenses, and, Bazelon and Wright argue, failure to do so can be regarded as automatically constituting prejudice...
...Davison pondered his case, and in his appeal wrote that "the major issues coming out of the trial are the sufficiency of the evidence that a dangerous weapon, i. e., a straight razor, was used in the commission of the robbery and assault, and whether the evidence was sufficient to convict appellant of aiding and abetting .. . . " He did not mention the competence of Keren's defense, and in fact he cited Keren's cross-examination of Crump as part of the appeal...
...Within a week Decoster had absconded for the third time, and a bench warrant was issued for his arrest...
...This, then, is the distance we have traveled in the decade since Gideon...
...Annex and identified Decoster as the man who had robbed him...
...But that would not be an accurate way of looking at this particular criminal case, since in fact it was Decoster who had the awesome weight of the government on his side, and the prosecution that was the hapless victim...
...Crump was robbed of his wallet, which contained $110...
...Taylor could not be found...
...He denied the motion for a new trial, concluding that "defense counsel was under no duty to assist the defendant in the fabrication of a defense," and that Keren had "raised the only defense available to him, which defense was putting the government to its proof...
...Back came Calvin Davison into the Appeals Court...
...This bond figure was not unreasonable, however, because Decoster was already a fugitive from justice at the time of his arrest by Officer Box, a bench warrant having been issued for his arrest in South Carolina after he had jumped bond there on a charge of carrying a concealed weapon...
...Motion for rehearing the case granted by Judge Bazelon...
...Each received an 18-month to five-year suspended sentence, and they were placed on probation...
...But notice, first, what happened when Judge Waddy, following orders from on high, reheard the evidence in District Court...
...Bazelon's first step was to appoint a new lawyer to handle Decoster's appeal...
...But the upshot 34 was that Keren had clearly made a mistake in taking Decoster's advice and putting his accomplice on the witness stand...
...glary was there reversed because he had been tried without benefit of counsel...
...jail...
...Crump's money and wallet were never found, however...
...he was not at the address he had left with his probation officer...
...Barney Keren was re-affirmed as attorney for Willie Decoster...
...Almost immediately, Roger Crump came into the D.C...
...Then, in October 1973, the appeals court ordered a full-dress rehearing of the Decoster case in Judge Waddy's District Court focusing on what Bazelon and Wright (MacKinnon dissented) said was now "the only serious issue in this case"—Keren's defense, which up to that point had never once been called into question...
...I feel like I can—well, I know I can be rehabilitated which I have did on my part in having to come to face the facts...
...One of them was yoking him, I don't know which one it was at the time, and they were removing something from his pockets"—all three defendants were held for the grand jury, which was the next rung up what would turn out to be an apparently endless judicial ladder...
...It seems likely that by now Davison's law firm realized that it had a "precedentsetting" case on its hands—that was the phrase that Bazelon himself used to describe it—even if it was Bazelon who seemed most determined to make it a precedent-setting case...
...The assailants fled, but Officer Paul R. Ehler caught and arrested two of them, Earl Taylor and Fred Eley...
...The next day Willie Decoster made the first of what would prove to be an extraordinary sequence of appearances in courtrooms before magistrates and judges of every description— local, district, and circuit— extending over a period of six years, in a case in which he was caught as nearly red-handed as it is ever the misfortune of a criminal to be caught...
...Perhaps the main point to emerge was that on the day his trial began Decoster told Keren he wanted his two codefendants to be subpoenaed...
...The day after the crime was committed, Decoster and his codefendants Eley and Taylor were arraigned before the magistrate, Judge Fred McIntyre, who appointed an attorney for Decoster, one Barney J. Keren...
...Decoster: "I just wanted the court to know that I was sincere in writing this letter...
...ecause of that mistake, more than anything else, Decoster's conviction has now been reversed by the United States Court of Appeals...
...Perhaps taking the oath persuaded him to tell the truth...
...But as we shall see, it took quite a bit of doing, with the Appeals Court itself directing the course, step by step, that the appeal should take...
...Decoster received a two-year to eight-year sentence for his armed robbery conviction...
...Without ever losing sight of him from the moment that he saw him participating in the robbery, Officer Box caught up with the man in the lobby and placed him under arrest...
...Why Eley did this is not known...
...Decoster, do you have something you want to say on your own behalf...
...He was not rearrested until September 1971, eight months later, and then only because he was picked up in connection with another crime, for which he was later tried and convicted...
...The grand jury heard the case— presumably Officer Ehler testified once again—and on September 11, 1970, all three defendants were indicted and charged with armed robbery and assault with a dangerous weapon: criminal case no...
...Decoster, it could be said, is Gideon Through the Looking Glass...
...Keren, at Decoster's suggestion, went to interview Eley...
...Eley had a hold of the subject, the complainant...
...Still there was no mention of Keren's adequacy as a defense lawyer...
...Fine...
...Annex...
...For these reasons, and because he had no fixed address, the D.C...
...is a ponderous title, suggesting the awesome weight of the United States government being brought to bear upon some hapless victim—poor Willie...
...Such opinions would impose upon the government, once a jury has found a defendant guilty, the burden of proving beyond a reasonable doubt that every conceivable overly imaginative item of defense that any two activist judges could possibly conceive had been thoroughly investigated and researched...
...perhaps he forgot what he was supposed to say...
...It involved a criminal defendant named Clarence Gideon, whose lone appeal was heard by the Supreme Court, and whose conviction for burTom Bethell is a contributing editor of The Washington Monthly, and a Washington editor of Harper's...
...Later that month, on March 23, 1972, Barney J. Keren filed a notice of appeal on behalf of his client, and it was at this point that the United States Court of Appeals embarked on its prolonged "appellate odyssey" (as Judge MacKinnon characterized it) on behalf of Decoster, which ended fourandone-half years later with the reversal of his conviction...
...Keren recalled that Eley told him that as far as he could recall, Decoster had had nothing to do with the crime...
...Since the U. S. Attorney's Office has appealed Bazelon's and Wright's reversal to the full, nine-member Court of Appeals, the litigation is not over yet, and might conceivably go to the U. S. Supreme Court...
...In his dissent Judge MacKinnon said many an unkind thing, but perhaps most striking was his comment that Decoster was allegedly deprived of his rights because a more "thorough" investigation might have resulted in Decoster switching from one perjured defense to "a second perjured defense that had a better chance of succeeding...
...Decoster's trial began on November 15, 1971, before Judge Waddy...
...Remember this is the case of a criminal whose crime was actually witnessed by the police, who proceeded to jump bail, who was tried and found guilty by a jury, who was given a lawyer from one of the country's leading firms to conduct his appeal, and who was now having the appellate court come up with reasons for letting him off that even the lawyer hadn't thought of...
...It was obvious, then, that Decoster attempted to fabricate a defense only after fortuitously meeting up with Eley in the jail...
...Gideon preceded Decoster by just ten years...
...Two and a half months later Decoster was sentenced, but before sentencing he wrote a letter to Judge Waddy, which was the subject of the following colloquy between them: Waddy: ". . The court has received a long letter from the defendant himself, staling that he has learned the error of his ways and that he has found out that he was fooling with the wrong crowd, and that he had been using drugs and he now knows that the use of drugs could lead only to death or jail, neither one of which is acceptable to him...
...In the new case a higher court overturns a just verdict—the accused being defended by a lawyer who merely failed to win an acquittal...
...It was an issue brought into play solely by the judges...
...Annex, even though there is no evidence on the record, and certainly none from Decoster himself, to suggest that any such witnesses exist...
...The Decoster case makes it clear that some courts are prepared to go to quite extraordinary lengths to protect criminal defendants...
...The new hearing was held in the second week of February 1974, with testimony from Keren, Eley, Taylor, Decoster, and other participants...
...Furthermore, as a juvenile Decoster had been involved in a robbery in the District of Columbia and had been sent to the Receiving Home, from which he had promptly escaped...
...Catching criminals is so desperately difficult—only a small minority are arrested and convicted—that it is absurd to have our judges worry about ways to free the guilty...
...After indictment the defendants appeared for a second arraignment before yet a third judge, and they pleaded not guilty...
...1490-70...
...Judge George MacKinnon but, in any event, the appeals court felt by March 21, 1973 that Decoster's new lawyer could try harder, and ordered him to submit a memorandum covering a couple of new points...
...Bail Agency did not recommend any conditional release or personal recognizance for Decoster...
...That was why Decoster suddenly wanted his partner-in-crime on the witness stand...
...As for Keren's alleged failure to interview Decoster's codefendants, Judge Waddy found that Keren had been together with Eley, Taylor, and Decoster on six separate dates, "and on none of these occasions did Decoster suggest to Mr...
...But Eley was easily found, because he was back in the D. C. Jail, having been arrested on another charge, and, as it happened, he was sleeping one bunk away from Decoster...
...But now I believe that I can—I know that given an opportunity that I can help my family Chief Judge David L. Bazelon Judge J. Skelly Wright as well as myself...
...And so on it went...
...And a new 30-page appeal was filed (remarkably promptly) by June 10, 1975...
...In some ways the Decoster case reminds one of the Gideon case...
...Willie Decoster was convicted of armed robbery, having been represented at trial by a court-appointed attorney, but the United States Circuit Court of Appeals for the District of Columbia—the majority opinion was signed by Chief Judge David L. Bazelon and Judge J. Skelly Wright with Judge George MacKinnon dissenting— found that his lawyer did not do an adequate job, and so reversed his conviction, even though at sentencing Decoster had in effect admitted his guilt to the sentencing judge...
...After his conviction was reversed Gideon was tried again...
...At arraignment, Decoster's bond was set at $5,000, which he was unable to pay, so he was held in custody in the D.C...
...Keren was relieved of further responsibilities because he did not normally handle appeals, and because he requested to be severed from the case...
...The case was set for trial in January 1971...
...Chief Judge Bazelon, in particular, appears to have taken it upon himself to act not merely as an appeals judge but as Decoster's ex officio defense counsel as well...
...Keren that either co-defendant was a possible witness for him...
Vol. 8 • January 1977 • No. 11
