1985: Twelve young people — 11 men and one woman — are tried in D.C. Superior Court for the gruesome murder of Catherine Fuller. Two plead guilty and testify for the government. Two, including the woman, are acquitted. Eight are convicted. The D.C. Court of Appeals affirms the convictions and the men go to prison. One dies there.
2012: Six of the defendants are back in Superior Court. Judge Frederick Weisberg has agreed to hear arguments that the men should be set free. The defendants say that in 1985 the government failed to tell their lawyers about witnesses who gave conflicting statements to police officers about the crime. And they say the government failed to disclose that there was another possible suspect in the case whose name was never given to the defense. The two “snitches” — Harry J. Bennett and Calvin L. Alston — have recanted their trial testimony, claiming they lied 27 years ago because detectives pressured them.
The case, known as “the Fuller murder,” gets under your skin. Catherine Fuller was such a sympathetic figure: 98 pounds, 4-foot-11, wife, mother of six. She went out to the store with curlers in her hair and never came home. And the killing was just so horrible — unfathomable, really. Fuller was robbed, beaten, dragged into a garage in an alley, stripped and impaled by a pole shoved so far up her rectum that the medical examiner testified that her liver was “shattered.”
The Fuller case certainly got under my skin. I lived with it for many months in the late ’80s, when I represented the government in the appeal, and I’ve often thought about the case since. Now, as I enter the courtroom to watch the new proceedings, I see Jerry Goren — the prosecutor who soon after the trial resigned from the U.S. attorney’s office, quit practicing law and moved to California — on the witness stand.
Judge Weisberg listens intently as a prosecutor who was a child when the crime occurred questions Goren about his investigation. Goren, who interviewed more than 400 witnesses in the case, testifies that he believed some participants in the murder were never charged. He confirms there was evidence that he did not turn over to the defense but says he did not believe he had a legal obligation to disclose that material.
Prosecutors are not obliged to turn over all their evidence to the defense. They do have a legal and ethical obligation to disclose prior statements by witnesses who testify at the trial and evidence that tends to show a defendant is not guilty. In other words, prosecutors must play fair. Since they have better investigative tools than defense lawyers, prosecutors must turn over exculpatory evidence. Of course, there’s often a big difference between what prosecutors think they need to disclose and what defense attorneys say should be disclosed. But even if the government didn’t turn over evidence that it should have in the Fuller case — which is debatable — the men won’t get a new trial or be released unless the judge decides the withheld evidence was so critical that there’s a “reasonable probability” that it would have led to a different outcome.
A central part of the request for a new trial in the Fuller case is the decision by Bennett and Alston to recant. It’s troubling that, in the intensive recent news coverage of the case, there’s been little skepticism about their change of heart.
In December 1985, right after the verdict, The Post reported that the jury “was skeptical of the government’s key witnesses — two young men who had pleaded guilty to Fuller’s murder. . . .” The jury did believe a brave 14-year-old boy named Maurice Thomas who testified that he witnessed part of the crime; he identified six of the defendants. Jurors also heard Kaye Porter, one defendant’s friend, who testified that the defendant told her that “all he did was kick” Fuller. They heard a detective testify about overhearing one defendant tell another not to worry because the police didn’t have enough evidence to charge them. Alston and Bennett didn’t testify in a vacuum. They were just two pieces of a big puzzle; other witnesses filled in the rest. Why should Alston and Bennett be believed now?
It is not unusual for a witness to recant trial testimony. Cases dating to the early 20th century quote each other over and over, instructing judges that witnesses who recant their trial testimony are “looked upon with the utmost suspicion.” Why? People feel guilty about being at least partly responsible for someone else — often a former friend — being behind bars. With the passage of time, they forget why they decided to testify in the first place. They can begin to believe they lied at the trial.
In any case, it’s pretty rare for a judge to grant a new trial based on recanted testimony. Even if a judge believes a recanting witness lied at the trial, he won’t grant a new trial unless he believes the outcome would have been different had the witness testified truthfully.
In the spirit of transparency and a thorough search for justice, Judge Weisberg reopened this gut-wrenching case. The convicted men are getting their day in court, the chance to air 27 years of pent-up frustration. But it is by no means a foregone conclusion that they will — or should — win their freedom.
The writer is a lawyer in the Washington office of the firm Crowell & Moring.