May 23, 2017
When it happened, a little over thirty-seven
years ago, a Chicago newspaper blared the headline "Lawyer Snatches Man from
the Electric Chair" and an Indianapolis newspaper wrote "Attorney Rescues
Forgotten Man from Death Row." Senior Editor Bill Helmer of Playboy
magazine titled his May, 1981, article about the case simply "The Ordeal
of Larry Hicks."
The Facts and Nothing But the Facts:
Represented by an incompetent public
defender, Larry Hicks, a poor 19-year-old black man from the bad streets
of Gary, Indiana, was sentenced to die in the Indiana electric chair for
supposedly murdering two men by stabbing them to death in a fight inside
a Gary home. Before that trial, Larry's public defender (PD) wasn't
even aware that his client faced the death penalty until a week before the
trial took place. (The lawyer admitted this in open court before trial,
and it is in the transcript.) Larry's PD failed to investigate Larry's
alibi that he wasn't present at the time the brutal slayings took place,
failed to examine the dark red stains on the jeans Larry wore on the night
of the murders (which stains, without chemical examination, the prosecution
would term "blood"), failed to examine the knife which the state claimed
Larry used to stab the two men, and -- as revealed by the PD's 1/4 inch thick
file on this death penalty case -- otherwise totally failed to prepare for
the one and a half day long murder trial that would result in Larry Hicks
being sentenced to die in Indiana's electric chair.
After Larry was granted a new trial on
what some conservative "law 'n order" folks might call a "legal technicality"
(but which assuredly was not*), a few
of the critical true facts relevant to the case proved to be as follows:
(1) The murders did not occur around midnight,
as the prosecution claimed, but around 5 a.m. while Larry Hicks was not
at the murder scene but at his own home. The coroner's report contained
this information, but Larry's original trial attorney never used it.
Nor, of course, did the state refer to it.
And, there was much more evidence confirming Larry's actual factual
innocence in addition to these few things.
(2) Scientific forensic analysis proved that what
the state claimed was "blood" on Larry's pants were bits of rust from old
barbells he used in the basement of his home, exactly as Larry had claimed.
(3) Scientific forensic analysis further proved
that the knife that the state said was the murder weapon could not have
possibly made the nature of the wounds inflicted on the men who were murdered.
Rather, the actual murder weapon had to have been a much longer and narrower
blade, a fact consistent with the description of the stiletto commonly wielded
by the person the defense named as the real killer and proved to have been
present at the time the murders took place.
At Larry's second trial, our defense
team was able to do this: Even after the judge had pounded into the
jurors' heads that the "burden of proof is on the state to prove guilt beyond
a reasonable doubt" and had instructed the jury that the defense had no obligation
to prove anything at all, here is what took place. In my opening statement
to the jury, I reminded them of those instructions from the judge and then
told them that, despite the legal burden of proof being on the state, the
defense in this case would gladly accept the burden of proof and affirmatively
prove that this young man was absolutely innocent of the brutal murders
he had been accused of. And, we powerfully did precisely that.
In addition to the true facts of the
case noted above, we had further (although inadmissible) evidence of Larry's
innocence which the jury could not lawfully hear and never did: Among
a plethora of other inadmissible evidence, Larry passed a polygraph test
administered by John O. Danbury. Danbury had been the top polygraph
expert for the Indiana State Police for 20 years before retiring to set up
his own private firm. After Larry passed Danbury's examination, we
hired the top polygraph expert in the nation -- Leonard Harrelson of Chicago's
famed Keeler Institute; and Harrelson also concluded that Hicks was telling
the truth when he claimed not to have been involved in the double murders.
In the poverty-stricken, crime-filled,
deep ghetto of Gary, Indiana, Larry Hicks had, even at the age of 19, proved
to have some sort of extraordinary strength to him. Here was a young man
who had never been in trouble with the law, who never drank alcohol, and
who never used drugs. Larry was a youngster who dropped out of high
school but was still trying to get his diploma by taking a few evening courses
here and there, and while having no real specific "skill" always searched
for part-time work, found it, and who -- according to those who hired him
-- worked harder than any other ten men put together. That was the
sort of man Larry Hicks was. While most people in his neighborhood
loved him for it, some people stayed away from him because they couldn't
come to grips with Larry's eternal optimism, helpful ways, and unselfish
nature. In the Gary ghetto, Larry Hicks' nickname was "Black Jesus."
No, no insanity defense was interposed in either
of Larry's trials, only straight ordinary pleas of not guilty. And,
as noted above, at his second trial, we produced an abundance of evidence
in support of Larry's innocence.
When the verdict was returned, and after the
jurors were excused (but still present in the courtroom), I pointed to
the prosecutor and said, "This case should never have been prosecuted in
the first place." To which, the prosecutor said, "I agree."
Then, eleven of the 12 jurors and the judge joined us at the defense team's
suite at the Crown Point, Indiana, Holiday Inn; and all, including Larry,
celebrated until dawn. Larry had nothing but a couple of soft drinks,
while the rest of us imbibed everything from coffee to Dom Perignon.
At the festivities, a young and quite attractive female juror decided that
Larry deserved a bit of special attention after his more than two years on
death row and enticed him into the bathroom. He exited there in under
a minute. The next day, Larry told me of her offer of sex in the
bathroom and said he thought that the only proper thing to do would be to
decline since, after all, she was a married lady.
*The grounds for
setting aside the original death sentence and verdict and for ordering a
new trial? Larry, while supposedly of low I.Q., always knew right from wrong
and absolutely trusted our criminal justice system. The easiest grounds
for the judge to have awarded a new trial on would have been for him to find
that Larry's trial attorney had been grossly inadequate in preparing to
represent a totally innocent man in a death penalty case. But, we
knew that most judges are not prone to finding their own public defenders
to be incompetent. So, we gave the judge another solid alternative
reason upon which to grant a new trial. (Understand, here, that Larry's
new trial was not ordered by some appellate court but, rather, by the original
trial judge himself -- the very judge who had sentenced Larry to death.)
The original pre-sentence investigation
had resulted in a report for the judge that included comments from three
psychiatrists the judge had ordered to examine Larry before imposing sentence.
(Trial counsel never even used these in mitigation at the sentencing hearing,
let alone as grounds for a new trial.) One of the psychiatrists had
reported that he thought Larry was fine. Another said that Larry's
I.Q. was so low that he had a doubt as to Larry's competency to stand trial
(as opposed to "insanity") at the time the original trial took place.
To be "competent" to stand trial, there was a three-pronged test in Indiana
at the time: (1) Does the accused understand the nature of the charges?
(2) Can the accused effectively communicate with counsel? And, (3) does
the accused appreciate the gravity of the situation? Since the law
forbids competency to stand trial to be determined after a trial
takes place but only before trial, I argued that there was a reasonable
doubt about Larry's competency to initially stand trial but that this could
not be rectified retroactively except by ordering a new trial. The
judge agreed, promptly ordered a new trial, and -- of course -- ordered psychiatrists
to examine Larry to determine whether he was competent to go through the
Larry was found competent to stand trial
(and we never suggested that he wasn't); but one psychiatrist was prepared
to testify, had he been asked the right questions, that he doubted Larry's
competency because Larry "had such blind faith that he might fail to appreciate
the gravity of the situation since he had no worry about the outcome."
I learned this from the psychiatrist when we went out for some coffee after
the competency hearing. The psychiatrist told me that he had no problems
with the first two components of "competency to stand trial" but that the
third factor ("appreciate the gravity of the potential consequences") gave
him pause. I asked why that was. He told me that the problem
was that he thought that Larry might not appreciate the potential consequences
at all. Stunned, I asked why. He told me that this was due to
the fact that Larry had no fear of the consequences whatsoever because he
knew that God had sent a lawyer to save his life. (This made me feel
very strange, of course.) Larry confirmed the gist of this to me later,
noting that the psychiatrist had told him that he probably should not tell
the judge about the matter else the judge might think that he was crazy.