By Radley Balko, September 21st 2015
Last week, an Oklahoma appeals court granted death row inmate Richard Glossip a stay of execution about an hour before he was scheduled to die. There’s plenty of evidence casting doubt on Glossip’s guilt, including new evidence his legal team unveiled just last week. (Much of it came from witnesses who came forward after seeing the publicity surrounding Glossip’s nearing execution.) Whenever a death row inmate claims innocence in the waning hours of his life, there’s inevitably a chorus of death penalty supporters who point out that the condemned was convicted by a jury, by the work of police and prosecutors, that the verdict would need to have been upheld by a judge, and then by multiple appeals courts.
But consider the case of Montez Spradley. As Glossip neared his execution, Spradley was enjoying his second week of freedom after nearly a decade in prison. For most of that time, he was on death row. He had been convicted of robbing and killing a woman, Marlene Jason, in 2004.
At first glance, the case against Spradley seemed strong. The police claimed to have records of the victim’s credit card being used at the gas station and seafood store, and surveillance photos of Spradley at those businesses at the time the card was used. Spradley’s ex-girlfriend, and the mother of his three children, testified that he had confessed to her, then beat her and threatened her if she tried to testify against him. A jailhouse informant also claimed that Spradley had confessed to him, and even claimed to have corroborating evidence to back up the allegation.
Spradley was convicted in 2008, both for the murder and for threatening his ex-girlfriend to dissuade her from testifying. But there were problems with the state’s case. Most notably, there was no physical evidence linking Spradley to the crime. Perhaps that’s why, during the sentencing phase, the jury voted 10-2 to spare Spradley the death penalty.
Unfortunately for Spradley, Alabama is one of three states in which a judge can override the jury’s verdict in a capital case. Judge Gloria Bahakel disregarded the jury’s recommendation and sentenced Spradley to death. (Incidentally, judges in these three states can also go the other way — they could override a jury’s death recommendation to impose a life sentence. But since 1976, they’re 11 times more likely to override life for death than the other way around.)
Over the next few years, the state’s case against Spradley began to fall apart. In 2011, the Alabama Court of Appeals ordered a new trial on several grounds. Most notably, the court found that the state never established that the security camera photos allegedly showing Spradley at the gas station and seafood store were actually taken at the time the victim’s credit card was used. In fact, the state never produced any documents from a bank showing that the card was used at those businesses. Instead, the state relied on the testimony of the police detective who investigated the case, Jefferson County Sheriff’s Office Det. Don Edge. As the court pointed out, this was the only evidence linking Spradley to the victim. The state moved ahead with plans to prosecute Spradley again, led by the man who prosecuted him the first time, deputy district attorney Mike Anderton. But before the second trial started, new information further crippled the state’s case.
The most damning piece of evidence against Spradley was the testimony of his ex-girlfriend and the mother of his children, Alisha Booker, who claimed that Spradley had confessed to her. There were already problems with Booker’s story. She claimed in a recorded interview that Spradley told her he committed the crime with a man named Antonio Atkins. The police already knew about Atkins because witnesses claimed someone in a car matching the one he owned tried to sell them gas purchased with Jason’s credit card. But the police also knew that Atkins had an alibi — he had been working the night of the murder. His attorneys have suggested that Atkins’s brother Sedrick was Jason’s killer. Unfortunately, Sedrick Atkins was shot and killed in 2011. At trial, Det. Edge testified that he couldn’t recall if Booker told him Spradley was with someone on the night of the murder, a convenient memory lapse that saved the jury from hearing a critical detail that cast serious doubt on Booker’s testimony.
After his death sentence, Spradley was represented by Birmingham defense attorney Richard Jaffe and Anna Arceneaux, a staff attorney with the ACLU’s Capital Punishment Project.
In a phone interview, Arceneaux says they had learned of a fund run by the Alabama governor’s office that provides reward money to citizens who help solve serious crimes. On a whim, Spradley’s attorneys asked the governor’s office for any information related to payments to witnesses in the Spradley case. They discovered that Alisha Booker had been paid $5,000 for her testimony. They later discovered that she had been paid an additional $5,000 through a private fund. None of this had been disclosed to Spradley’s defense team, as is required by law.
But it gets worse. They also discovered that the money from the governor’s fund was paid to Booker after Spradley’s conviction but before his sentencing. What’s more, Judge Gloria Bahakel had signed off on the payment. She too never disclosed the payment to Spradley’s defense team.
“That means not only did she know that the state had paid Booker and did nothing about it, she also had knowledge of the payment when she overrode the jury and imposed the death penalty,” Arceneaux says.
Anderton has publicly said that he wasn’t personally aware of the payments to Booker, but Arceneaux points out that the documents came from the office of Anderton’s boss at the time, Jefferson County District Attorney David Barber. If Anderton didn’t know about the payments, then someone in his office was making deals with a witness without his knowledge. “Either scenario is disturbing,” Arceneaux says.
Both Arceneaux and Jaffe say they also believe that Booker received yet more money later, possibly from a Crime Stoppers program. They also learned that shortly before trial, Booker attempted to recant her testimony. According to them, police officials in the Jefferson County Sheriff’s Office threatened to prosecute her for perjury and take away her children if she didn’t implicate Spradley. Incidentally, the way these reward programs work, Booker would have been paid only if Spradley was convicted.
“You can see how the incentives work,” says Jaffe. “If you want to get paid, you not only testify, but you’d be wise to make sure your testimony is as helpful as you can make it.” For Booker, the incentives were even stronger: Give the testimony that sends Spradley to death row, and she gets paid $10,000. Refuse to testify, and she may lose her kids, and possibly end up in jail herself. Jaffe says these tactics are common in Jefferson County.
And if Spradley’s new legal team hadn’t thought to request information from the governor’s office, it may never have come to light. On Booker’s testimony alone, Spradley could well have been convicted again. “We had heard rumors that Booker had been paid,” Arceneaux says. “But when we contacted the county clerk, there was no record of any payments in the case file.”
And then there’s Matthew Bryant, the informant who testified against Spradley. Bryant was in jail awaiting trial on charges that he hired two men to kill his father. Spradley had been arrested after Booker claimed he threatened her, although at that point he had not yet been charged with Jason’s murder. Bryant then approached police claiming that Spradley had been implicating himself for Jason’s murder and offered to testify in exchange for favorable treatment in his own case. But when Bryant attempted to secretly record Spradley confessing, he came up empty. Nevertheless, he still testified against Spradley at trial. By that time he had been convicted in his own case. He received a split sentence that required him to spend just five years in prison, followed by probation.
“That’s an extraordinarily light sentence for a crime that serious,” Jaffe says. Anderton has publicly said that there was no deal cut with Bryant. But for some perspective on his sentence, Richard Glossip was essentially convicted of the same crime. Bryant got five years. Glossip was sentenced to death.
Once all of this came out, the state offered Spradley an Alford plea, an agreement in which a defendant maintains his innocence but concedes that the state has enough evidence to prove his guilt. Spradley took the offer and was released this month. It’s far from an exoneration, but it spared him death and got him out of prison. “Montez is innocent,” Jaffe says. “But you don’t mess around with the death penalty. If my client has the chance to save his own life, I always advise him to take it.”
If you don’t closely follow the criminal justice system, the details of Spradley’s conviction seem pretty shocking. But they aren’t uncommon. The use of testimony from jailhouse informants, for example, is extremely common, despite the obvious incentive problems and that such testimony relies on the assumption that defendants frequently confess their crimes to cellmates they barely know. Anderton’s denials aside, it’s not unreasonable to wonder if Bryant’s suspiciously light sentence was the result of favorable treatment of his testimony. But even if no one ever explicitly offered him a deal, it isn’t difficult to see how he might come forward in anticipation of one. (Indeed, Arceneaux says transcripts show that he made such a request.)
Then there’s the money paid to Booker. Timothy O’Toole, an attorney in Washington considered an expert in discovery issues and a board member of the National Association of Criminal Defense Lawyers, says the practice of police and prosecutors offering reward money to non-expert witnesses for their testimony is standard practice. (The NACDL doesn’t comment on specific cases, so O’Toole’s opinions are his own.) “It just has to be disclosed,” O’Toole says. “But the rules are pretty loose.”
You might think that sounds like bribery. O’Toole points out that in 1998, a panel for the U.S. Court of Appeals for the 10th Circuit agreed, explaining that, “If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so. The judicial process is tainted and justice is cheapened when factual testimony is purchased, whether with leniency or money.”
That seemingly reasonable decision made headlines. It was then promptly vacated by the full 10th Circuit, and then swiftly condemned and repudiatedby courts all over the country. The majority opinion for the full appeals court assured that, “fears our decision would permit improper use or abuse of prosecutorial authority simply have no foundation.”
Since then, testimony from paid witnesses, paid informants and jailhouse snitches rewarded with reduced sentences has been implicated in wrongful convictions, unjust prosecutions, and scandals at all levels of government, all over the country. The Innocence Project estimates that 15 percent of wrongful convictions were due to critical testimony from witnesses who were in some way compensated for what they told the jury.
Both prosecutors and defense attorneys can pay for travel and hotel for witnesses, along with a reasonable per diem for the time they spend testifying. That seems reasonable. But state rewards in the thousands of dollars, contingent on conviction, are another matter. But believe it or not, this is permissible.
To put that into perspective, imagine the scenario hinted at by that 10th Circuit panel in 1998: Imagine if a defense attorney had paid a witness $10,000 to claim someone other than the defendant had confessed to her, only payable upon acquittal. Even if the attorney disclosed the payment, it would probably lead to disbarment. If the attorney didn’t disclose, it would likely result in criminal charges.
So police and prosecutors can reward witnesses for testimony. But disclosure is key. And there was no disclosure here. “If payments of that size weren’t disclosed in this case, that’s outrageous,” O’Toole says.
So why isn’t this story a huge scandal? The problem is that there’s enough ambiguity in when and how some of these awards are distributed to give every state actor with a duty to disclosure an excuse for not having done it. Crime Stoppers rewards are usually advertised publicly, for example. So police investigators might say a witness was already aware of the award, so they never made an explicit offer, so there was nothing to do disclose. (In Spradley’s case, Det. Edge said in a 2013 hearing that there was “discussion” of a reward, but that he never explicitly promised Booker the money. He also denied threatening Booker.) Prosecutors can simply say that it was the responsibility of the police to disclose any payments.
“I don’t know about plausible deniability, but it definitely lets them get away with saying they didn’t know,” Arceneaux says. Making these rewards contingent on conviction also lets state officials claim that if there was not yet an explicit offer, and the witness was paid only after the conviction, then again, there was nothing to disclose before the trial.
All of this clearly subverts the intent of the Supreme Court’s ruling both in Brady v. Maryland, which requires prosecutors to turn over exculpatory evidence, and the 1985 case U.S. v. Bagley, which specifically addresses the issue of payments to witnesses. The harm occurs when a jury is deprived of information that compromises a witness’s integrity. Perversely, while making a reward contingent on a conviction may (at least in theory) provide some cover for officials who fail to disclose the reward, it actually strengthens a witness’s incentive to lie or exaggerate. The more convincing the testimony, the more likely the jury convicts.
The Supreme Court’s ruling in Bagley added that in order for a disclosure violation to merit overturning a conviction, the undisclosed evidence should be material, and a defendant needs to show that it would likely have affected the outcome of the case if it had been disclosed. So even the minor deterrent of an overturned conviction is far from automatic. Here, the Alabama Court of Appeals found that the video and photo evidence against Spradley alone met that standard. (Remember, the payments to Booker weren’t discovered until after that decision.) So once the payments were discovered, it seems likely that just about any court in the country would have eventually overturned his conviction.
“There’s no question that there were Brady violations in this case,” Jaffe says.
The problem is that with a violation this egregious, an overturned conviction isn’t enough. There needs to be some accountability. Anderton didn’t return a request for a phone interview. But he’s still a prosecutor in Jefferson County. If he wasn’t aware of the payments to Booker, who in his office was? Clearly someone was, given that the authorization form included a letter on the DA’s letterhead, signed by his former boss. Has he investigated who in his office authorized payment to a witness in one of his cases without notifying him? Has that person been sanctioned for violating Montez Spradley’s rights? If it was the responsibility of the police to notify Anderton of any payment to Booker, has he investigated why that wasn’t disclosed? Has he investigated Booker’s allegations that when she attempted to recant her statement, she was threatened with criminal charges and with losing her children?*
Remember that this information was only discovered when defense attorneys learned of the governor’s reward fund and sent a letter to inquire if anyone in Spradley’s case had been paid. Had they not found out about the payments, Anderton would likely have tried Spradley again. (Earlier this month, Anderton still insisted that Spradley is guilty.)
But if this has happened once, it has likely happened before. How many other people may have been wrongly convicted in Jefferson County due to testimony from witnesses who were incentivized with reward money and/or threats of criminal prosecution, none of which was disclosed? Given that all of the law enforcement officials involved in this case are still on the job, how do we know it isn’t still going on?
The one public official who did eventually get some comeuppance in this story is Judge Gloria Bahakel, who lost her bid for reelection in 2010, then lost subsequent bids for a judgeship in 2012, and again last year. Morally, Bahakel’s sins in this case seem to be the most egregious. It’s bad enough to allow for a man to be executed while knowing that the jury was never told that the state’s key witness had been paid thousands of dollars for her testimony. But Bahakel ordered Spradley’s execution herself, against the jury’s wishes.
But judges aren’t subject to Brady requirements. So technically, it isn’t even clear if Bahakel committed an actionable breach of ethics. Given that prosecutors are rarely sanctioned for failure to disclose exculpatory evidence, it seems unlikely that the Alabama Bar or an appeals court would sanction a judge, even one no longer on the bench. Those close to the case also say it would be a stretch to attribute Bahakel’s election losses to the Spradley case, though they say it’s possible voters were responding to her reputation as aparticularly harsh law-and-order judge, even in a state known for law-and-order judges.
In the end, no public official has been directly held accountable for the wrongful prosecution of Montez Spradley, and it’s unlikely that any will. In an interview with Andrew Cohen of the Marshall Project, Spradley displayed the grace typical of recently-freed exonorees. “I just want to be free and be around my kids and my family and my loved ones. Just glad to be home. I am just happy for that,” he said. “I am not mad at anyone, not holding any grudges against anyone, I don’t hold any ill feelings toward anyone.”
That’s admirably magnanimous of him. But the rest of us can’t afford to be so forgiving. Assertions from death penalty proponents aside, Spradley is far from the first person to be freed from death row. He isn’t the first in Alabama. He isn’t even the first in Alabama this year.
There are undoubtedly more Montez Spradleys rotting in Alabama’s prisons, and in prisons around the country. Like Spradley, some of them are probably awaiting execution.
And without any real accountability in these cases, there will undoubtedly be more.
(*Amusingly, at the 2013 hearing in which Booker recanted her testimony,Anderton suggested that her recantation may have been influenced by the help she received from Spradley’s family in raising her three children.)
This article originally appeared on the Washington Post’s website on September 21st 2015. To view the entire article on their website, click here.