Angola 3 News from the Angola 3

MEDIA COVERAGE:  Esquire: “The Absurdity of Retrial”  II  Washington Post  II  NY Times  II  The Independent (UK)  II  The Guardian (UK)  II  Amnesty Intl. UK  II  Amnesty Intl. USA  II  The Advocate  II  teleSUR English  II  Boston Globe / AP  II  VICE  II  Mother Jones  II  Brennan Center: Will Justice Kennedy Save Albert Woodfox?

PHOTO:  A ‘cardboard cutout’ of Albert Woodfox is displayed in downtown London, England during a November 7 protest march organized by Amnesty International UK. If you have not yet done so, please take action by joining Amnesty’s call to “Free Albert Woodfox!”

US 5th Circuit Court Reverses Judge Brady in Bitterly Divided 2-1 Decision

Like Albert, many of you probably awoke to the news that yesterday evening a bitterly divided panel of the 5th Circuit Court of Appeals reversed Judge Brady’s June 8th unconditional Writ ordering his release and barring a retrial.

Albert’s conviction will remain overturned, but there is no longer any doubt that he will be retried a third time by the State of Louisiana, only miles from the solitary cell where he’s spent the bulk of his life.

In a stunning dissent, printed in its entirety below, Judge James Dennis passionately argued against the majority for Albert’s freedom–sharing both Judge Brady’s view of the exceptional injustice represented by this case and his “lack of confidence in the State to provide a fair third trial.”

Though we are disappointed our friend remains in solitary for a crime he didn’t commit, we remain confident that the truth of his innocence and integrity of his struggle for justice will ultimately free him.

The Argument For Freedom

JAMES L. DENNIS, Circuit Judge, dissenting.

“The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”  Harris v. Nelson, 394 U.S. 286, 290-91 (1969).  “Today, as in prior centuries, the writ is a bulwark against convictions that violate ‘fundamental fairness.'”  Engle v. Isaac, 456 U.S. 107, 126 (1982).  This laudable mission is reflected in Congress’s explicit command that district courts dispose of habeas petitions “as law and justice require.”  28 U.S.C. § 2243.

The Supreme Court has consistently interpreted § 2243’s mandate as vesting district courts with “broad discretion in conditioning a judgment granting habeas relief.”  Hilton v. Braunskill, 481 U.S. 770, 775 (1987).  Indeed, in interpreting the similarly-worded predecessor to § 2243, the Court explained that the habeas statute endows district courts “‘with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.'”  Id. (quoting In re Bonner, 151 U.S. 242, 261 (1894)).  As our court and others have thus recognized, this broad power includes the authority “to stop a state criminal proceeding” by barring reprosecution where “exceptional circumstances” exist.  Jones v. Cain, 600 F.3d 527, 542 (5th Cir. 2010); see also Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir. 2006); Foster v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993); Capps v. Sullivan, 13 F.3d 350, 352-53 (10th Cir. 1993). 

If ever a case justifiably could be considered to present “exceptional circumstances” barring reprosecution, this is that case.  For more than four decades, Albert Woodfox has been solitarily confined to a nine-by-six foot cell for 23 hours each day.  During the single hour of the day that Woodfox is permitted outside his compact single cell, he also must remain in solitude.  At all times, therefore, Woodfox remains in unmitigated isolation-despite being a model prisoner who is now 68 years old and in frail health suffering from an onslaught of life-shortening conditions including heart disease, kidney disease, diabetes, high blood pressure, and a liver ailment that puts him at a high risk for developing cancer.   Although the State of Louisiana has subjected Woodfox to these harsh conditions for the 1972 murder of Brent Miller, the State has twice tried and twice failed to obtain a constitutionally valid conviction of Woodfox.  In other words, for the vast majority of his life, Woodfox has spent nearly every waking hour in a cramped cell in crushing solitude without a valid conviction to justify what Justice Kennedy recently described as the “terrible price” paid by those suffering “[y]ears on end of near-total isolation.”  See Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring).  Yet this unique and alarming aspect of Woodfox’s case is just one in a startling constellation of extraordinary factors militating in favor of barring Woodfox’s reprosecution.  See Schuster v. Vincent, 524 F.2d 153, 159 (2d Cir. 1975) (considering the conditions of a habeas petitioner’s confinement as one of various factors supporting an unconditional writ of release). 

Because “discrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system and our society as a whole,” it has been well-settled for more than a hundred years that a criminal conviction cannot stand if it is based on an indictment by a grand jury that excluded individuals on the basis of their race.  Rose v. Mitchell, 443 U.S. 545, 556 (1979) (citing Neal v. Delaware, 103 U.S. 370 (1880)).  Yet Woodfox was subjected to solitary confinement for almost twenty long years before a state court, after unconscionable delay, finally vacated his first conviction based on the racial discrimination that infected the selection of his first grand jury and his counsel’s failure to attempt to quash the indictment on that basis.  By vacating Woodfox’s 1973 conviction for that reason, the state court’s “[1992] decision put the State on notice that [Woodfox] had been grievously wronged, and required it to act with dispatch to correct these wrongs.”  See Schuster, 524 F.2d at 161.  Although the State was given every opportunity to cure this constitutional defect by reprosecuting Woodfox fairly and free from racially discriminatory procedures, the State failed to do so.  Like the selection of the first grand jury, the selection of the second grand jury was also tainted by racial discrimination, thus requiring Woodfox’s second conviction to be vacated-this time in federal court.  See Woodfox v. Cain, 772 F.3d 358, 363 (5th Cir. 2014).  In the time it took for the State’s repeated error to be acknowledged and corrected, Woodfox was forced to endure another twenty years in the throes of solitary confinement. 

Now, more than forty-three years after Miller’s murder took place, the State seeks yet a third opportunity to prosecute Woodfox for the same 1972 crime.  In a case we previously characterized as being “built largely on eyewitness testimony,” Woodfox v. Cain, 609 F.3d 774, 784 (5th Cir. 2010), the State’s only purported eyewitness to the murder itself, Hezekiah Brown, died after the first trial.  More than a dozen other witnesses are likewise now deceased.  This tally includes at least six of Woodfox’s original defense witnesses-two of whom were critical alibi witnesses.  In addition to Brown, many of the State’s other most important witnesses to testify against Woodfox are dead, including Paul Fobb and Joseph Richey.  Importantly, in the four decades since Brown, Fobb and Richey first testified against Woodfox, critical new evidence has emerged that could have been used to call their testimony into question.  For example, Brown was allegedly threatened and induced into testifying against Woodfox; Fobb, who testified that he saw Woodfox leaving the crime scene, was both blind in his right eye and suffered from optical damage in his left eye at the time of the crime as reflected in newly discovered medical records; and Richey was provided a transfer to a largely unrestrictive environment in exchange for his damaging testimony against Woodfox.  Notwithstanding the materiality of this new evidence, the deaths of these critical prosecution witnesses will prevent Woodfox from cross examining them during a third trial, and the jury likely will be forced to reach a verdict based almost exclusively on listening to stand-ins reading the decades-old testimony of dead men.  See, e.g., Lopez v. Miller, 915 F. Supp. 2d 373, 434-35 (E.D.N.Y. 2013) (considering the death and unavailability of witnesses at any retrial and the inability of petitioner to otherwise obtain “a fair retrial” as a factor weighing in favor of granting an unconditional writ barring reprosecution); D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 729-30 (N.D. Ohio 2010) (same).  In a case that pivots almost exclusively on the credibility of just a few witnesses, the jury will never see those witnesses or observe their demeanor on the stand in a third trial.  As for those witnesses who are still alive, memories have inevitably faded in the almost half-century since Miller’s 1972 murder.  Morales v. Portuondo, 165 F. Supp. 2d 601, 612 (S.D.N.Y. 2001) (noting one factor weighing in favor of granting unconditional writ barring reprosecution was that available witnesses would “be required to recall events that occurred 14 years ago”).   Physical evidence has also been lost. 

In addition to these clear barriers in Woodfox’s path to mounting a defense at a third trial forty-three years after the events, the record reflects yet another potential obstacle to securing a fair third trial: the conduct of the State itself.  As the district court noted, the State has engaged in “troubling” conduct throughout the history of this case.  During Woodfox’s second 1998 trial, for instance, a prosecutor improperly took the stand and vouched for the deceased Brown’s canned testimony.  See Woodfox, 609 F.3d at 805 (“[W]e too are troubled by that aspect of [prosecutor] Sinquefield’s testimony wherein he exclaimed how ‘proud’ he was of Hezekiah Brown and that Brown’s testimony ‘took courage.'”).  In the present proceedings, the State has continued to deploy troubling tactics by, inter alia, obtaining an arrest warrant for Woodfox prior to the issuance of our court’s mandate and unilaterally transferring him to a parish jail, thereby attempting to “moot” the district court’s authority to release Woodfox in light of our decision affirming the grant of habeas relief.  Recently surfaced allegations that the State made inflammatory statements to the third grand jury in order to obtain a third indictment create even greater uncertainty as to Woodfox’s ability to obtain a fair trial in the State’s third prosecution.  See, e.g., D’Ambrosio, 688 F. Supp.2d at 728-29 (citing the state’s “inequitable conduct” during the proceedings as one factor weighing in favor of barring reprosecution).  Conceivably, these myriad prejudices to Woodfox in any third trial might be easier to swallow if there were strong evidence of his guilt, but the evidence against him is, at the very best, extremely equivocal.  Although there was an abundance of physical evidence available at the crime scene, none of this evidence incriminated Woodfox, and other evidence has emerged since the first trial that casts even further doubt on the State’s case against him.  See Morales, 165 F. Supp. 2d at 609 (citing the “extremely thin” evidence against petitioners as an additional factor weighing in favor of granting an unconditional writ barring reprosecution).  

Given the totality of these indisputably “exceptional” circumstances, I cannot say that the district court abused its “broad discretion” under 28 U.S.C. § 2243, Hilton, 481 U.S. at 775, in concluding that “law and justice require” a habeas remedy that bars the State from prosecuting Woodfox for a third time.  See Jones, 600 F.3d at 542 (observing that in “exceptional circumstances” a district court may “exercise its habeas corpus power to stop a state criminal proceeding”).  In reaching the opposite conclusion, the majority not only fails to give the district court “the deference that is the hallmark of abuse-of-discretion review,” General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997), but also ignores that “[t]he very nature of the writ [of habeas corpus] demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected,”  Harris, 394 U.S. at 291.  Clearly, the wrongful harm done to Woodfox, not only as a litigant but also as a human being by his two unconstitutional convictions and his egregious four decades of solitary confinement, cannot be rectified by the usual remedy of reversal and reprosecution.  If the ends of “law and justice” set forth in 28 U.S.C. § 2243 do not justify the district court’s unconditional writ barring Woodfox’s reprosecution, then the Great Writ is but a hollow remedy in this case.  

For these reasons, I respectfully dissent.
   

Write Albert:

Albert Woodfox #72148            
West Feliciana Parish Detention Center
PO Box 2727
St. Francisville, LA 70775

MEDIA COVERAGE:  Esquire: “The Absurdity of Retrial”  II  Washington Post  II  NY Times  II  The Independent (UK)  II  The Guardian (UK)  II  Amnesty Intl. UK  II  Amnesty Intl. USA  II  The Advocate  II  teleSUR English  II  Boston Globe / AP  II  VICE  II  Mother Jones  II  Brennan Center: Will Justice Kennedy Save Albert Woodfox?

PHOTO:  A ‘cardboard cutout’ of Albert Woodfox is displayed in downtown London, England during a November 7 protest march organized by Amnesty International UK. If you have not yet done so, please take action by joining Amnesty’s call to “Free Albert Woodfox!”

US 5th Circuit Court Reverses Judge Brady in Bitterly Divided 2-1 Decision

Like Albert, many of you probably awoke to the news that yesterday evening a bitterly divided panel of the 5th Circuit Court of Appeals reversed Judge Brady’s June 8th unconditional Writ ordering his release and barring a retrial.

Albert’s conviction will remain overturned, but there is no longer any doubt that he will be retried a third time by the State of Louisiana, only miles from the solitary cell where he’s spent the bulk of his life.

In a stunning dissent, printed in its entirety below, Judge James Dennis passionately argued against the majority for Albert’s freedom–sharing both Judge Brady’s view of the exceptional injustice represented by this case and his “lack of confidence in the State to provide a fair third trial.”

Though we are disappointed our friend remains in solitary for a crime he didn’t commit, we remain confident that the truth of his innocence and integrity of his struggle for justice will ultimately free him.

The Argument For Freedom

JAMES L. DENNIS, Circuit Judge, dissenting.

“The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”  Harris v. Nelson, 394 U.S. 286, 290-91 (1969).  “Today, as in prior centuries, the writ is a bulwark against convictions that violate ‘fundamental fairness.'”  Engle v. Isaac, 456 U.S. 107, 126 (1982).  This laudable mission is reflected in Congress’s explicit command that district courts dispose of habeas petitions “as law and justice require.”  28 U.S.C. § 2243.

The Supreme Court has consistently interpreted § 2243’s mandate as vesting district courts with “broad discretion in conditioning a judgment granting habeas relief.”  Hilton v. Braunskill, 481 U.S. 770, 775 (1987).  Indeed, in interpreting the similarly-worded predecessor to § 2243, the Court explained that the habeas statute endows district courts “‘with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.'”  Id. (quoting In re Bonner, 151 U.S. 242, 261 (1894)).  As our court and others have thus recognized, this broad power includes the authority “to stop a state criminal proceeding” by barring reprosecution where “exceptional circumstances” exist.  Jones v. Cain, 600 F.3d 527, 542 (5th Cir. 2010); see also Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir. 2006); Foster v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993); Capps v. Sullivan, 13 F.3d 350, 352-53 (10th Cir. 1993). 

If ever a case justifiably could be considered to present “exceptional circumstances” barring reprosecution, this is that case.  For more than four decades, Albert Woodfox has been solitarily confined to a nine-by-six foot cell for 23 hours each day.  During the single hour of the day that Woodfox is permitted outside his compact single cell, he also must remain in solitude.  At all times, therefore, Woodfox remains in unmitigated isolation-despite being a model prisoner who is now 68 years old and in frail health suffering from an onslaught of life-shortening conditions including heart disease, kidney disease, diabetes, high blood pressure, and a liver ailment that puts him at a high risk for developing cancer.   Although the State of Louisiana has subjected Woodfox to these harsh conditions for the 1972 murder of Brent Miller, the State has twice tried and twice failed to obtain a constitutionally valid conviction of Woodfox.  In other words, for the vast majority of his life, Woodfox has spent nearly every waking hour in a cramped cell in crushing solitude without a valid conviction to justify what Justice Kennedy recently described as the “terrible price” paid by those suffering “[y]ears on end of near-total isolation.”  See Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring).  Yet this unique and alarming aspect of Woodfox’s case is just one in a startling constellation of extraordinary factors militating in favor of barring Woodfox’s reprosecution.  See Schuster v. Vincent, 524 F.2d 153, 159 (2d Cir. 1975) (considering the conditions of a habeas petitioner’s confinement as one of various factors supporting an unconditional writ of release). 

Because “discrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system and our society as a whole,” it has been well-settled for more than a hundred years that a criminal conviction cannot stand if it is based on an indictment by a grand jury that excluded individuals on the basis of their race.  Rose v. Mitchell, 443 U.S. 545, 556 (1979) (citing Neal v. Delaware, 103 U.S. 370 (1880)).  Yet Woodfox was subjected to solitary confinement for almost twenty long years before a state court, after unconscionable delay, finally vacated his first conviction based on the racial discrimination that infected the selection of his first grand jury and his counsel’s failure to attempt to quash the indictment on that basis.  By vacating Woodfox’s 1973 conviction for that reason, the state court’s “[1992] decision put the State on notice that [Woodfox] had been grievously wronged, and required it to act with dispatch to correct these wrongs.”  See Schuster, 524 F.2d at 161.  Although the State was given every opportunity to cure this constitutional defect by reprosecuting Woodfox fairly and free from racially discriminatory procedures, the State failed to do so.  Like the selection of the first grand jury, the selection of the second grand jury was also tainted by racial discrimination, thus requiring Woodfox’s second conviction to be vacated-this time in federal court.  See Woodfox v. Cain, 772 F.3d 358, 363 (5th Cir. 2014).  In the time it took for the State’s repeated error to be acknowledged and corrected, Woodfox was forced to endure another twenty years in the throes of solitary confinement. 

Now, more than forty-three years after Miller’s murder took place, the State seeks yet a third opportunity to prosecute Woodfox for the same 1972 crime.  In a case we previously characterized as being “built largely on eyewitness testimony,” Woodfox v. Cain, 609 F.3d 774, 784 (5th Cir. 2010), the State’s only purported eyewitness to the murder itself, Hezekiah Brown, died after the first trial.  More than a dozen other witnesses are likewise now deceased.  This tally includes at least six of Woodfox’s original defense witnesses-two of whom were critical alibi witnesses.  In addition to Brown, many of the State’s other most important witnesses to testify against Woodfox are dead, including Paul Fobb and Joseph Richey.  Importantly, in the four decades since Brown, Fobb and Richey first testified against Woodfox, critical new evidence has emerged that could have been used to call their testimony into question.  For example, Brown was allegedly threatened and induced into testifying against Woodfox; Fobb, who testified that he saw Woodfox leaving the crime scene, was both blind in his right eye and suffered from optical damage in his left eye at the time of the crime as reflected in newly discovered medical records; and Richey was provided a transfer to a largely unrestrictive environment in exchange for his damaging testimony against Woodfox.  Notwithstanding the materiality of this new evidence, the deaths of these critical prosecution witnesses will prevent Woodfox from cross examining them during a third trial, and the jury likely will be forced to reach a verdict based almost exclusively on listening to stand-ins reading the decades-old testimony of dead men.  See, e.g., Lopez v. Miller, 915 F. Supp. 2d 373, 434-35 (E.D.N.Y. 2013) (considering the death and unavailability of witnesses at any retrial and the inability of petitioner to otherwise obtain “a fair retrial” as a factor weighing in favor of granting an unconditional writ barring reprosecution); D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 729-30 (N.D. Ohio 2010) (same).  In a case that pivots almost exclusively on the credibility of just a few witnesses, the jury will never see those witnesses or observe their demeanor on the stand in a third trial.  As for those witnesses who are still alive, memories have inevitably faded in the almost half-century since Miller’s 1972 murder.  Morales v. Portuondo, 165 F. Supp. 2d 601, 612 (S.D.N.Y. 2001) (noting one factor weighing in favor of granting unconditional writ barring reprosecution was that available witnesses would “be required to recall events that occurred 14 years ago”).   Physical evidence has also been lost. 

In addition to these clear barriers in Woodfox’s path to mounting a defense at a third trial forty-three years after the events, the record reflects yet another potential obstacle to securing a fair third trial: the conduct of the State itself.  As the district court noted, the State has engaged in “troubling” conduct throughout the history of this case.  During Woodfox’s second 1998 trial, for instance, a prosecutor improperly took the stand and vouched for the deceased Brown’s canned testimony.  See Woodfox, 609 F.3d at 805 (“[W]e too are troubled by that aspect of [prosecutor] Sinquefield’s testimony wherein he exclaimed how ‘proud’ he was of Hezekiah Brown and that Brown’s testimony ‘took courage.'”).  In the present proceedings, the State has continued to deploy troubling tactics by, inter alia, obtaining an arrest warrant for Woodfox prior to the issuance of our court’s mandate and unilaterally transferring him to a parish jail, thereby attempting to “moot” the district court’s authority to release Woodfox in light of our decision affirming the grant of habeas relief.  Recently surfaced allegations that the State made inflammatory statements to the third grand jury in order to obtain a third indictment create even greater uncertainty as to Woodfox’s ability to obtain a fair trial in the State’s third prosecution.  See, e.g., D’Ambrosio, 688 F. Supp.2d at 728-29 (citing the state’s “inequitable conduct” during the proceedings as one factor weighing in favor of barring reprosecution).  Conceivably, these myriad prejudices to Woodfox in any third trial might be easier to swallow if there were strong evidence of his guilt, but the evidence against him is, at the very best, extremely equivocal.  Although there was an abundance of physical evidence available at the crime scene, none of this evidence incriminated Woodfox, and other evidence has emerged since the first trial that casts even further doubt on the State’s case against him.  See Morales, 165 F. Supp. 2d at 609 (citing the “extremely thin” evidence against petitioners as an additional factor weighing in favor of granting an unconditional writ barring reprosecution).  

Given the totality of these indisputably “exceptional” circumstances, I cannot say that the district court abused its “broad discretion” under 28 U.S.C. § 2243, Hilton, 481 U.S. at 775, in concluding that “law and justice require” a habeas remedy that bars the State from prosecuting Woodfox for a third time.  See Jones, 600 F.3d at 542 (observing that in “exceptional circumstances” a district court may “exercise its habeas corpus power to stop a state criminal proceeding”).  In reaching the opposite conclusion, the majority not only fails to give the district court “the deference that is the hallmark of abuse-of-discretion review,” General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997), but also ignores that “[t]he very nature of the writ [of habeas corpus] demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected,”  Harris, 394 U.S. at 291.  Clearly, the wrongful harm done to Woodfox, not only as a litigant but also as a human being by his two unconstitutional convictions and his egregious four decades of solitary confinement, cannot be rectified by the usual remedy of reversal and reprosecution.  If the ends of “law and justice” set forth in 28 U.S.C. § 2243 do not justify the district court’s unconditional writ barring Woodfox’s reprosecution, then the Great Writ is but a hollow remedy in this case.  

For these reasons, I respectfully dissent.
   

Write Albert:

Albert Woodfox #72148            
West Feliciana Parish Detention Center
PO Box 2727
St. Francisville, LA 70775

MEDIA COVERAGE:  Esquire: “The Absurdity of Retrial”  II  Washington Post  II  NY Times  II  The Independent (UK)  II  The Guardian (UK)  II  Amnesty Intl. UK  II  Amnesty Intl. USA  II  The Advocate  II  teleSUR English  II  Boston Globe / AP  II  VICE  II  Mother Jones  II  Brennan Center: Will Justice Kennedy Save Albert Woodfox?

PHOTO:  A ‘cardboard cutout’ of Albert Woodfox is displayed in downtown London, England during a November 7 protest march organized by Amnesty International UK. If you have not yet done so, please take action by joining Amnesty’s call to “Free Albert Woodfox!”

US 5th Circuit Court Reverses Judge Brady in Bitterly Divided 2-1 Decision

Like Albert, many of you probably awoke to the news that yesterday evening a bitterly divided panel of the 5th Circuit Court of Appeals reversed Judge Brady’s June 8th unconditional Writ ordering his release and barring a retrial.

Albert’s conviction will remain overturned, but there is no longer any doubt that he will be retried a third time by the State of Louisiana, only miles from the solitary cell where he’s spent the bulk of his life.

In a stunning dissent, printed in its entirety below, Judge James Dennis passionately argued against the majority for Albert’s freedom–sharing both Judge Brady’s view of the exceptional injustice represented by this case and his “lack of confidence in the State to provide a fair third trial.”

Though we are disappointed our friend remains in solitary for a crime he didn’t commit, we remain confident that the truth of his innocence and integrity of his struggle for justice will ultimately free him.

The Argument For Freedom

JAMES L. DENNIS, Circuit Judge, dissenting.

“The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”  Harris v. Nelson, 394 U.S. 286, 290-91 (1969).  “Today, as in prior centuries, the writ is a bulwark against convictions that violate ‘fundamental fairness.'”  Engle v. Isaac, 456 U.S. 107, 126 (1982).  This laudable mission is reflected in Congress’s explicit command that district courts dispose of habeas petitions “as law and justice require.”  28 U.S.C. § 2243.

The Supreme Court has consistently interpreted § 2243’s mandate as vesting district courts with “broad discretion in conditioning a judgment granting habeas relief.”  Hilton v. Braunskill, 481 U.S. 770, 775 (1987).  Indeed, in interpreting the similarly-worded predecessor to § 2243, the Court explained that the habeas statute endows district courts “‘with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.'”  Id. (quoting In re Bonner, 151 U.S. 242, 261 (1894)).  As our court and others have thus recognized, this broad power includes the authority “to stop a state criminal proceeding” by barring reprosecution where “exceptional circumstances” exist.  Jones v. Cain, 600 F.3d 527, 542 (5th Cir. 2010); see also Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir. 2006); Foster v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993); Capps v. Sullivan, 13 F.3d 350, 352-53 (10th Cir. 1993). 

If ever a case justifiably could be considered to present “exceptional circumstances” barring reprosecution, this is that case.  For more than four decades, Albert Woodfox has been solitarily confined to a nine-by-six foot cell for 23 hours each day.  During the single hour of the day that Woodfox is permitted outside his compact single cell, he also must remain in solitude.  At all times, therefore, Woodfox remains in unmitigated isolation-despite being a model prisoner who is now 68 years old and in frail health suffering from an onslaught of life-shortening conditions including heart disease, kidney disease, diabetes, high blood pressure, and a liver ailment that puts him at a high risk for developing cancer.   Although the State of Louisiana has subjected Woodfox to these harsh conditions for the 1972 murder of Brent Miller, the State has twice tried and twice failed to obtain a constitutionally valid conviction of Woodfox.  In other words, for the vast majority of his life, Woodfox has spent nearly every waking hour in a cramped cell in crushing solitude without a valid conviction to justify what Justice Kennedy recently described as the “terrible price” paid by those suffering “[y]ears on end of near-total isolation.”  See Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring).  Yet this unique and alarming aspect of Woodfox’s case is just one in a startling constellation of extraordinary factors militating in favor of barring Woodfox’s reprosecution.  See Schuster v. Vincent, 524 F.2d 153, 159 (2d Cir. 1975) (considering the conditions of a habeas petitioner’s confinement as one of various factors supporting an unconditional writ of release). 

Because “discrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system and our society as a whole,” it has been well-settled for more than a hundred years that a criminal conviction cannot stand if it is based on an indictment by a grand jury that excluded individuals on the basis of their race.  Rose v. Mitchell, 443 U.S. 545, 556 (1979) (citing Neal v. Delaware, 103 U.S. 370 (1880)).  Yet Woodfox was subjected to solitary confinement for almost twenty long years before a state court, after unconscionable delay, finally vacated his first conviction based on the racial discrimination that infected the selection of his first grand jury and his counsel’s failure to attempt to quash the indictment on that basis.  By vacating Woodfox’s 1973 conviction for that reason, the state court’s “[1992] decision put the State on notice that [Woodfox] had been grievously wronged, and required it to act with dispatch to correct these wrongs.”  See Schuster, 524 F.2d at 161.  Although the State was given every opportunity to cure this constitutional defect by reprosecuting Woodfox fairly and free from racially discriminatory procedures, the State failed to do so.  Like the selection of the first grand jury, the selection of the second grand jury was also tainted by racial discrimination, thus requiring Woodfox’s second conviction to be vacated-this time in federal court.  See Woodfox v. Cain, 772 F.3d 358, 363 (5th Cir. 2014).  In the time it took for the State’s repeated error to be acknowledged and corrected, Woodfox was forced to endure another twenty years in the throes of solitary confinement. 

Now, more than forty-three years after Miller’s murder took place, the State seeks yet a third opportunity to prosecute Woodfox for the same 1972 crime.  In a case we previously characterized as being “built largely on eyewitness testimony,” Woodfox v. Cain, 609 F.3d 774, 784 (5th Cir. 2010), the State’s only purported eyewitness to the murder itself, Hezekiah Brown, died after the first trial.  More than a dozen other witnesses are likewise now deceased.  This tally includes at least six of Woodfox’s original defense witnesses-two of whom were critical alibi witnesses.  In addition to Brown, many of the State’s other most important witnesses to testify against Woodfox are dead, including Paul Fobb and Joseph Richey.  Importantly, in the four decades since Brown, Fobb and Richey first testified against Woodfox, critical new evidence has emerged that could have been used to call their testimony into question.  For example, Brown was allegedly threatened and induced into testifying against Woodfox; Fobb, who testified that he saw Woodfox leaving the crime scene, was both blind in his right eye and suffered from optical damage in his left eye at the time of the crime as reflected in newly discovered medical records; and Richey was provided a transfer to a largely unrestrictive environment in exchange for his damaging testimony against Woodfox.  Notwithstanding the materiality of this new evidence, the deaths of these critical prosecution witnesses will prevent Woodfox from cross examining them during a third trial, and the jury likely will be forced to reach a verdict based almost exclusively on listening to stand-ins reading the decades-old testimony of dead men.  See, e.g., Lopez v. Miller, 915 F. Supp. 2d 373, 434-35 (E.D.N.Y. 2013) (considering the death and unavailability of witnesses at any retrial and the inability of petitioner to otherwise obtain “a fair retrial” as a factor weighing in favor of granting an unconditional writ barring reprosecution); D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 729-30 (N.D. Ohio 2010) (same).  In a case that pivots almost exclusively on the credibility of just a few witnesses, the jury will never see those witnesses or observe their demeanor on the stand in a third trial.  As for those witnesses who are still alive, memories have inevitably faded in the almost half-century since Miller’s 1972 murder.  Morales v. Portuondo, 165 F. Supp. 2d 601, 612 (S.D.N.Y. 2001) (noting one factor weighing in favor of granting unconditional writ barring reprosecution was that available witnesses would “be required to recall events that occurred 14 years ago”).   Physical evidence has also been lost. 

In addition to these clear barriers in Woodfox’s path to mounting a defense at a third trial forty-three years after the events, the record reflects yet another potential obstacle to securing a fair third trial: the conduct of the State itself.  As the district court noted, the State has engaged in “troubling” conduct throughout the history of this case.  During Woodfox’s second 1998 trial, for instance, a prosecutor improperly took the stand and vouched for the deceased Brown’s canned testimony.  See Woodfox, 609 F.3d at 805 (“[W]e too are troubled by that aspect of [prosecutor] Sinquefield’s testimony wherein he exclaimed how ‘proud’ he was of Hezekiah Brown and that Brown’s testimony ‘took courage.'”).  In the present proceedings, the State has continued to deploy troubling tactics by, inter alia, obtaining an arrest warrant for Woodfox prior to the issuance of our court’s mandate and unilaterally transferring him to a parish jail, thereby attempting to “moot” the district court’s authority to release Woodfox in light of our decision affirming the grant of habeas relief.  Recently surfaced allegations that the State made inflammatory statements to the third grand jury in order to obtain a third indictment create even greater uncertainty as to Woodfox’s ability to obtain a fair trial in the State’s third prosecution.  See, e.g., D’Ambrosio, 688 F. Supp.2d at 728-29 (citing the state’s “inequitable conduct” during the proceedings as one factor weighing in favor of barring reprosecution).  Conceivably, these myriad prejudices to Woodfox in any third trial might be easier to swallow if there were strong evidence of his guilt, but the evidence against him is, at the very best, extremely equivocal.  Although there was an abundance of physical evidence available at the crime scene, none of this evidence incriminated Woodfox, and other evidence has emerged since the first trial that casts even further doubt on the State’s case against him.  See Morales, 165 F. Supp. 2d at 609 (citing the “extremely thin” evidence against petitioners as an additional factor weighing in favor of granting an unconditional writ barring reprosecution).  

Given the totality of these indisputably “exceptional” circumstances, I cannot say that the district court abused its “broad discretion” under 28 U.S.C. § 2243, Hilton, 481 U.S. at 775, in concluding that “law and justice require” a habeas remedy that bars the State from prosecuting Woodfox for a third time.  See Jones, 600 F.3d at 542 (observing that in “exceptional circumstances” a district court may “exercise its habeas corpus power to stop a state criminal proceeding”).  In reaching the opposite conclusion, the majority not only fails to give the district court “the deference that is the hallmark of abuse-of-discretion review,” General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997), but also ignores that “[t]he very nature of the writ [of habeas corpus] demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected,”  Harris, 394 U.S. at 291.  Clearly, the wrongful harm done to Woodfox, not only as a litigant but also as a human being by his two unconstitutional convictions and his egregious four decades of solitary confinement, cannot be rectified by the usual remedy of reversal and reprosecution.  If the ends of “law and justice” set forth in 28 U.S.C. § 2243 do not justify the district court’s unconditional writ barring Woodfox’s reprosecution, then the Great Writ is but a hollow remedy in this case.  

For these reasons, I respectfully dissent.
   

Write Albert:

Albert Woodfox #72148            
West Feliciana Parish Detention Center
PO Box 2727
St. Francisville, LA 70775

A3 Newsletter: Judge Rules for DNA Testing and Fingerprint Analysis but Against the Change of Venue and Dismissing the Case

This morning in St. Francisville Judge Carmichael of West Feliciana Parish’s 20th Judicial District Court made the first determinations about what the legal landscape will look like if Judge Brady’s “unconditional Writ” is overturned and Albert faces a third trial.  

The good news is that the judge agreed to require a unanimous jury decision, to allow DNA testing of all evidence still in the State’s possession that may contain adequate sample sizes for modern analysis, and to give Albert’s defense team access to any fingerprint files the State possesses from Angola at the time of the murder.  He also agreed to give Albert’s defense team a chance to privately review (under seal) letters from the latest grand jury foreperson expressing “serious misgivings” about the “process” in order to assess whether or not the most recent indictment itself, hastily obtained in February of 2015 before the federal appeals process had fully played out, may have once again been improperly obtained. 

Overall though, it was not a good day for Albert, or for justice, in St. Francisville.  In a curt, 45 minute hearing (originally scheduled for two full days) the judge rejected a solid majority of Albert’s 16 pre-trial motions designed to create a fair evidentiary and procedural playing field for any potential retrial.  Albert’s motion to quash, change the venue, and run the print evidence through the FBI’s expanded AFIS database were all quite unceremoniously denied.  Critically, so were Albert’s requests to exclude all the now impeached, debunked, and discredited testimony presented at previous trials by Hezekiah Brown and the State’s other key witnesses.  Though Albert will be allowed to present impeachment evidence to a new jury, the jurors will never able to see how these now deceased witnesses respond and react on the stand when confronted with their own lies, obfuscations, and omissions from previous testimony.  

We remain confident that the evidence of innocence is so overwhelming that even on an unfair playing field, Albert will prevail.  But today’s proceedings were a sobering reminder that his battle for justice is not yet over, and will most certainly be uphill.

We will keep you updated as the pretrial preparation on both sides moves forward throughout the fall.

Featured below, reprinted in full is a statement released by Amnesty International USA following Albert Woodfox’s hearing this morning in Louisiana State Court.

September 21, 2015:  Amnesty International USA Statement on Latest Albert Woodfox Developments

Today, Judge William G. Carmichael of Louisiana’s 20th Judicial District Court held a hearing to lay the groundwork for a possible third trial of Albert Woodfox, the last imprisoned member of the Angola 3. In June, U.S. District Judge James Brady ordered Woodfox’s unconditional release, overturning his conviction and barring the state from retrying him, but the state of Louisiana appealed the ruling. While the appeal is being considered, the state court is moving ahead with a new trial.

Jasmine Heiss, Senior Campaigner for Amnesty International USA’s Individuals at Risk program, attended the hearing and issued the following statement:

“Albert Woodfox has endured over four decades in a cell the size of a parking space. His conviction has been thrown out three occasions. But each time his freedom has seemed within reach, the state of Louisiana has done everything in its power to keep him incarcerated.

“Woodfox was moved to solitary confinement before ever being convicted of murder. He has stayed there for four decades, through three overturned convictions, fighting to prove his innocence. Albert Woodfox’s case serves as a harsh condemnation of the U.S. justice system; he remains trapped in both a cell the size of a parking space and in a legal process tainted by racial discrimination, among other glaring flaws. Through all of this, the warden of Angola prison has continued to justify his ongoing isolation based on Woodfox’s association with the Black Panther Party.

“Judge Brady’s writ of unconditional release should have ended Albert’s ordeal, yet Louisiana Attorney General Buddy Caldwell continues to pursue a campaign of vengeance against him. It’s time for Albert Woodfox to walk free.”

Click here to TWEET NOW: Tell Louisiana Attorney General to free Albert Woodfox
 
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Albert Woodfox: End 40 Years of Solitary Confinement

Write Albert:

Albert Woodfox #72148            
West Feliciana Parish Detention Center
PO Box 2727
St. Francisville, LA 70775