On April 21, 1993, 407 prisoners who for eleven days had occupied the L cell block at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, surrendered to authorities. Nine prisoners and one guard had been killed.
The 21-point surrender agreement included the following:
"(2) Administrative discipline and criminal proceedings will be fairly and impartially administered without bias against individuals or groups.
(14) There will be no retaliating actions taken toward any inmate or groups of inmates or their property."
The authorities brought 50 inmates to trial. They obtained 47 guilty findings or guilty pleas. Five men were sentenced to death. The authorities achieved these results by systematic and intentional violation of the surrender agreement.
1. Disparity of Resources
The American Bar Association guidelines for the appointment and performance of counsel in death penalty cases state that attorneys in capital cases should receive a "reasonable rate of hourly compensation which . . . reflects the extraordinary responsibilities inherent in death penalty litigation." Counsel should also be provided with the time and funding necessary for proper investigations, expert witnesses, and other support services, according to the ABA.
Ohio does not meet these standards. In the words of an Ohio Supreme Court task force, fee schedules for defending capital cases in Ohio "are similar to those used in states where constitutional challenges have been successful."
In the Lucasville cases both those that sought the death penalty and those that did not the disparity of resources between prosecution and defense was extreme. Attorney Niki Schwartz, who helped the prisoners in L block to negotiate the 21-point settlement, testified about this in the trial of Jason Robb. Schwartz stated that the Ohio legislature appropriated millions of dollars for special prosecutors. Prosecutors were paid between $60 and $125 per hour, and were able to practice without the overhead expenses and costs borne by defense attorneys. By contrast, for defending one man on six counts of Aggravated Murder and four counts of Kidnapping, defense attorney Jeffrey Kelleher was paid $50 per hour for 310 hours in court and $40 per hour for 1,513 hours out of court. Moreover, defense counsel could not seek compensation until after each such case was completed.
The legislature also allocated additional and special resources to the prosecution but not to the defense. According to Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction (ODRC), over 1,250 interviews and 4,000 items of evidence were stored in a prosecution computer program using over 1,000 megabytes of memory.
The disparity of resources between prosecution and defense is public knowledge. The Columbus Dispatch reported on April 16, 1997, that a total of $2.7 million had been made available to the prosecution and a total of $892,000 to the defense.
2. Interference with Right to Counsel
After the surrender, Attorney Schwartz arranged for Public Defenders and counsel associated with the Ohio Association of Criminal Defense Lawyers to interview each prisoner who surrendered. Prisoners were told that they had the right to remain silent and the right to insist upon having a lawyer present during interrogation.
Attorney Schwartz then made arrangements with the Ohio State Highway Patrol to convene a meeting of top State officials to consider ways and means of providing Lucasville prisoners with effective assistance of counsel. According to Schwartz's sworn testimony, the meeting was aborted by the newly-appointed Special Prosecutor, Mark Piepmeier. Piepmeier, Schwartz has written to the Chief Justice of the Ohio Supreme Court, told Schwartz that he did not want prisoners to have counsel prior to indictment because then they would not incriminate themselves.
At Schwartz's request, the President of the Ohio State Bar Association thereupon sent out a call for volunteer attorneys to serve pro bono. Hundreds of lawyers, including many of Ohio's top criminal defense lawyers, volunteered to represent prisoners prior to indictment with no compensation, and if qualified and desired by prisoners, to accept appointment after indictment.
Piepmeier informed volunteer attorneys that they would be appointed to represent their clients after indictment only if they cooperated by arranging a plea. The first indictments were issued in December 1993. Judge Thomas Mitchell announced that he would handle all arraignments. According to Schwartz, throughout February and March 1994 Judge Mitchell refused to appoint any requested volunteers who did not have Piepmeier's approval as a result of negotiating a guilty plea. Only after Schwartz appealed to Chief Justice Moyer were some volunteers grudgingly appointed as trial counsel for Lucasville defendants. More often the trial judge simply imposed on the defendant new counsel chosen by the Court.
3. Selective prosecution and reliance on snitch testimony
The authorities' assurance to the surrendering prisoners that "there will be no retaliating actions taken toward any inmate" lasted less than twenty-four hours. On the night of the surrender, the Ohio State Highway Patrol began to interview a prisoner who reported his experience, under oath, as follows:
The troopers knew already who they wanted to prosecute, even though I was one of the first inmates they spoke with. They specifically wanted me to make statements against [spokespersons for the prisoners named] George Skatzes, Hasan Sanders, and Lavelle. They made it clear to me that they wanted these particular individuals, and that they did not care about any others.
I asked, "You all don't care what we say, just as long as it's against one of the inmates you want, no matter if it's true or not," and was told, "that's right."
These officers said, "We want Skatzes. We want Lavelle. We want Hasan." They also said, "We know they were leaders. We want to burn their ass. We want to put them in the electric chair for murdering Officer Vallandingham."
Director Wilkinson himself confirms that the prosecution strategy was to concentrate on these presumed leaders until one of them broke. In an article published in Corrections Management Quarterly , Wilkinson states that Piepmeier's staff targeted a few gang leaders and convinced them to accept plea bargains. Thirteen months into the investigation, a primary riot provocateur [Lavelle] agreed to talk about Officer Vallandingham's death. He later received a sentence of 7 to 25 years after pleading guilty to conspiracy to commit murder. His testimony led to death sentences for riot leaders Carlos Sanders, Jason Robb, George Skatzes, and James Were. After that, fellow gang members began to seek deals of their own.
In the capital trials of those who had served as spokespersons for the rebelling prisoners, prosecutors conceded that they had little or no physical evidence connecting any defendant with any death. All that they had was snitch testimony from other prisoners who had cut deals. The result can be illustrated by the case of prisoner Earl Elder, killed during the first hours of the rebellion. Affidavits of eye witnesses name the prisoner who went into cell L-6-60 and finished Elder off. That man, who testified against a riot spokesperson, is now out of prison. The riot spokesperson who (so say the witnesses) never went into Elder's cell was sentenced to death for Elder's murder.
Prosecution tactics deserve a trial in themselves. The prisoner quoted earlier describes part of the process:
I and other witnesses were offered incentives and special treatment to testify. The officers told me I was going home.
On April 28, 1994, I was put into the Witness Protection Program and sent to the Oakwood Correctional Institution.
At Oakwood, I and other inmates who had provided information to the Ohio Highway Patrol and the Dept. of Correction against inmates involved in the SOCF riot were housed together. The inmates there included [names seven persons beside himself].
The Highway Patrol told those of us at Oakwood to talk with each other to get our stories in synch. . . .
The Highway Patrol had parties with us at Oakwood. They gave us chicken, popcorn, cake, movies.
It was made clear that if we didn't say what they wanted, then we would be punished or our safety ignored.
This particular informant testified against a defendant, as desired by the State, but also testified on behalf of two other defendants. As a result, according to this prisoner's statement:
"In September 1998 the Parole Board gave me another ten (10) years. They specifically mentioned that I had testified for defense cases related to the Lucasville riot."
Oakwood known among Lucasville defendants as "the snitch academy" was not the only prosecution tactic to induce testimony. A prison psychologist has stated that one of the so-called leaders needed treatment for depression but that she was prevented from providing it by officers who said that "he's just about ready to tell us things." The same defendant was taken to see patrolmen, refused to tell them anything, but then was placed in a new cell in a different part of the prison. His absence, immediately after meeting with the authorities, created the impression among his cellmates that he had "rolled," and that impression, it is thought, was the reason that Anthony Lavelle turned State's evidence the next month.
4. Tunnel tape 61
The one significant piece of physical evidence the prosecution brought forward was a tape made by the FBI in the tunnels under the occupied cell block. The tape, known as Tunnel Tape 61, purportedly recorded a conversation among leaders of the rebellion during the morning of Thursday, April 15.
In that conversation, the prosecution told various juries, rebellion leaders decided to kill a hostage guard. Shortly after 11 a.m. that morning the body of prison guard Robert Vallandingham was, in fact, carried out on the yard. The prosecution's theory was that any one who had been at the meeting could be convicted of conspiring to murder the guard.
There are two problems with this theory. The first is that even the government's transcript of Tunnel Tape 61 does not report a decision to kill a guard. There is discussion of killing a guard. There is agreement that the authorities should be asked to restore electricity and water in the occupied cell block. Finally, it is said that if the authorities fail to do so, the prisoners should meet again to decide what to do next.
The second problem is that the Ohio Court of Appeals, in Jason Robb's case, has held that the tunnel taping operation was illegal. "The trial court clearly erred in failing to suppress the tunnel tapes according to Ohio's former wiretap law," the Court stated. However, the Court continued, "given the other evidence in the case" the error was harmless.
That other evidence was snitch testimony. Apart from the inherent unreliability of all such testimony, snitch Lavelle helped to transcribe Tunnel Tape 61 and snitches Lavelle and Snodgrass modified their testimony in light of what they believed or were told that the tape said. There was no Chinese wall between the recollection of the snitches and the words purportedly on the tape. But for the moment, three men are headed toward the electric chair because the snitch testimony has been considered a reliable and independent source of truth.
5. The Alleged Conspiracy of Muslims, Aryan Brothers, and Black Gangster Disciples
The most bizarre aspect of the Lucasville trials has been the prosecution's effort to play the race card. The prosecution scenario goes something like this:
According to the prosecution, the Lucasville "riot" was run by three "gangs." The largest, all-Black group, was the Muslims. Abdullah Siddique Hasan (f.k.a. Carlos Sanders) was portrayed as the imam or leader of this group.
Next in size and influence, according to the prosecution, was the Aryan Brotherhood. Jason Robb and George Skatzes were presented to the juries as leaders of the AB.
Finally, there was the Black Gangster Disciples, purportedly headed by Anthony Lavelle.
The prosecution first offered the juries evidence of racial exclusivity and/or hatred on the part of all three so-called gangs. Then the prosecution showed that there had been substantial inter-racial cooperation during the rebellion, evidenced by slogans that said "Black and white together," "convict race," and the like. For groups that didn't like each other to work together, prosecutors argued, there must have been a conspiracy between the leaders of the gangs.
The evidence for the alleged conspiracy was of a hearsay and fragmentary character. Supposed Aryan Brother bylaws were put in evidence in the trials of both Robb and Skatzes, although the evidence seemed to show that the bylaws had been written only after the rebellion, and that defendants may not have known of them before trial. Even less tangible was a supposed agreement between all three groups, or at least between the Muslims and ABs, that if a person of any race was to be killed, the group made up of members of that race must be consulted and take part.
The aura of conspiracy engendered by the prosecution's so-called evidence about the Lucasville gangs was also used to prevent separate trials for separate offenses. One of the Lucasville defendants, George Skatzes, was charged with murders committed on April 11, 15, and 21, and was tried for all three deaths in the same proceeding on a theory that the killings expressed a single, continuous course of conduct. The courts' refusal to sever different charges was especially harmful because of emotion surrounding the death of prison guard Vallandingham. Skatzes was charged with aggravated murder of Vallandingham and two prisoners. He was found guilty of all three murders but the jury recommended against the death penalty in the Vallandingham case. There can be little doubt that the defendant's association with the killing of a guard made the jury more ready to recommend the death penalty in the other two cases.
As a non-criminal lawyer, I have been appalled at the sloppy and prejudicial manner in which the Lucasville cases were adjudicated. It has often seemed to me that a "fender bender" in a civil court would be tried more carefully. The Lucasville trials have indeed amounted to a survival course for snitches. In this sense at least, those condemned after the rebellion are all political prisoners. They deserve new trials.
[Staughton and Alice Lynd are retired Legal Services attorneys who live near Youngstown, OH. The Lynds are members of the legal team working on George Skatzes' petition for post-conviction review, and regularly visit Lucasville defendants, many of whom are now housed at the Youngstown super-max. Readers who wish to receive the Skatzes/Lucasville 5 Support Bulletin, or otherwise participate in the defense of these unjustly convicted men, should communicate with Staughton at 1694 Timbers Court, Niles, OH, 44446, voice (330) 652-9635, fax (330) 652-0171 .]
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