Darrell Grayson sits on death row, most likely having committed heinous acts against an innocent elderly woman. But as long as the opportunity to examine ALL the evidence is being denied by the state of Alabama, no one will ever be certain.
No one can contest that Anna Laura Orr, age 86, and tiny at 5' 3" and 117 pounds, was brutally murdered in June of 1980. She was tied up, beaten, raped and a pillowcase placed over her head and taped in place. The persons responsible for the crime should be held accountable. But, whether Darrell Grayson, who had no prior criminal record, should be one of those, needs to be established once and for all.
There's an easy way to do this. There was a considerable amount of blood and semen found at the crime scene. A DNA test of that material would swiftly determine whether Grayson's confession and testimony were false and he was passed out, drunk, at another location when the murder occurred, or whether he's a brutal, vile bastard deserving of life imprisonment. (what...you thought I was going to say death?)
Although bloodstains were found on Grayson's shirt and were typed (Type O, consistent with the victim, the co-defendant, and about 45% of the U.S. population) there has been no DNA confirmation, even though, as the state pointed out when criticizing Grayson for not requesting it sooner, it had been available since 1986.
There were "negroid" hairs found at the scene, consistent with both Grayson and his co-defendant, and inconsistent with the victim, but also consistent with slightly less than 12 percent of the U.S. population in 1980, and with more than a million people in Alabama in that year, according to the U.S. Census.
The blood, urine and semen found at the scene were also impossible for the technology of the day to type.
There were no identifiable fingerprints recovered. The ballistics examiner testified that the police had not given him a gun that matched the bullets recovered from the crime scene.
While the victims rings were found in Grayson's wallet, and a hair consistent with hers, and inconsistent with Grayson's was recovered from his sock, it's also true that he had worked for her in the past, and had other opportunities to acquire them.
Grayson admitted to the murder in several inconsistent statements. He also admitted to having consumed several gallons of wine with his co-defendant, and having planned to burglarize the victim's house, as he knew where she kept her money.
While confessions tend to be regarded as damning evidence, let's not forget the case of the Central Park Jogger. Her alleged attackers confessed, too. All five of them. Those confessions were used to lock up five innocent men until DNA showed that they were innocent of the crime, and a single serial rapist had been the true perpetrator. Thank G-d that Trisha Meili lived. Thank G-d they weren't executed. Their innocence wasn't discovered until 2003, when the "Central Park Five" had served between 7 and 11 years in prison.
The key is in the DNA.
The courts have denied Grayson's request to have DNA testing done since he filed a Section 1983 action requesting it in 2002.
Most recently, in his appeal to the 11th Circuit, he was denied the opportunity to have the biological evidence DNA tested.
Grayson asserted
Brady v. Maryland, which requires the prosecution to turn over to the defense potentially exculpatory evidence. The interpretation that the 11th Circuit's panel gave this is that Brady should apply only to trial, and the blood and hair evidence were both given at the trial phase. To me, it seems rather sneaky and underhanded to assert that even though the state has potentially exculpatory evidence, since someone has already been tried (obviously without the exculpatory evidence being considered--in this case because the technology to consider it hadn't become available yet) they have no obligation to hand it over if there's a question of actual innocence. Does this mean that a wrongful conviction is more valuable because of its finality than the actual innocence of someone about to be executed?
The 11th Circuit wrote: "Grayson has cited absolutely no authority for the proposition that Brady’s constitutional rule – i.e., the state’s disclosure obligation – extends beyond a defendant’s conviction."
Grayson v. King, 460 F. 3d 1328, 1340-41 (11th Cir. 2006) Uh, that would be because it's a simple matter that most of us understand that putting an innocent person to death, regardless of the timing of the disclosure of the evidence is, quite simply, wrong.
Grayson also asserts a footnote in
Imbler v. Pachtman, 424 U.S. 409, 427 n.25, 96 S.Ct. 984, 993 n.25 (1976) that states that that “after a conviction the prosecutor . . . is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.” How then, can it be reasonable for the prosecution to deliberately avoid knowing whether evidence in their possession is exculpatory?
Grayson argues
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989 (1987), a case in which it was decided that a defendant who had been denied records during his trial was entitled to these records after the final decision, to ensure that the defendant had received a fair trial. The 11th Circuit distinguished the cases on the grounds that "Ritchie concerned the pretrial obligation to disclose to the trial court for review known, existing evidence to ensure that the defendant received a fair trial. The time for fair trial arguments has long since passed in this case. Nothing in Ritchie suggests that a defendant has a due process right, twenty years after receiving an indisputably fair trial at which the evidence in question was presented, to seek access to and further testing on evidence that was available at trial."
Grayson, 460 F. 3d 1328 at 1344.
While it is correct that the time for "fair trial arguments has passed," as the 11th Circuit asserts, how is it possible for the time for the introduction of actual-innocence evidence to have passed? How is a trial that took place before the current technology existed better than using the readily-available technology that can prevent innocent men from being executed? Unless it's just that prosecutors want to preserve their conviction rates, and police their clearance rates, at any cost. I understand the rationale behind the need for closure and finality in cases, and why there must be a firm end for appeals, but I fail to see the societal value of a case like this one ending in the death of a man who may be innocent.
The 11th Circuit attempts to support its argument with the 4th Circuit Court's findings in
Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002). By the 11th Circuit's own statements, "Harvey received a fair trial and was given the opportunity to test the DNA evidence at trial using the best technology available at the time." Grayson has never had this opportunity, and the technology was not available at the time he was tried in 1982.
Unless it's just really late and I'm not reading straight, the 4th Circuit court reversed the
Harvey decision prior to the issuance of the 11th Circuit's decision in
Grayson. Hmm.
The 11th Circuit cites the
Ohio Adult Parole Authority v. Woodward, 523 U.S. 272, 118 S. Ct. 1244 (1998) in which then-Chief Justice Rehnquist wrote: that an “individual’s interest in release or commutation is indistinguishable from the initial resistance to being confined, and that interest has already been extinguished by the conviction and sentence.” Id. at 280, 118 S. Ct. at 1249 (quotation marks and citations omitted). While the individual's interest in release or commutation of his sentence is extinguished by conviction and sentencing, there is a tremendous difference between "confinement" and "execution" and I believe the interest in remaining alive trumps the interest in remaining unconfined. Those confined can be released. Those dead...Well, not so much.
In the
Ohio Adult Parole Authority case,
id, Justice O'Connor wrote in her concurrence (with which 3 other justices joined) that “it is incorrect . . . to say that a prisoner has been deprived of all interest in his life before his execution”; rather, “some minimal procedural safeguards apply to clemency proceedings.”
Id. at 289, 118 S. Ct. at 1253-54.
DNA testing that would confirm or deny that the biological material at the scene belonged to Grayson strikes me as a minimal procedural safeguard to ensure that an innocent man isn't put to death. According to my count on the Death Penalty Information Center's "Innocence Cases" lists, since 1993 when Kirk Bloodsworth was found to be innocent of the rape and murder of a young girl, 13 more of the 74 death row inmates exonerated since then have been exonerated by DNA testing. That, for you math majors out there, is nearly 20%. How many more are there who, like Grayson, can't get DNA testing?
The 11th Circuit considers the test laid out in
Mathews v. Eldridge, and grudgingly admits that perhaps Grayson does have a residual liberty interest in avoiding execution (the first element of
Mathews). But, they state that "the second Mathews factor – “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards” – weighs heavily against Grayson’s claim ... As to the procedures used, Grayson already received a fair trial, a direct appeal, and both state and federal habeas proceedings and appeals. His liberty interest in his life was already litigated
extensively for twenty years." All the statements that the 11th Circuit makes are true. However, denying Grayson the opportunity to show his innocence by denying him the opportunity for DNA testing (an additional procedural safeguard, no?) has a high potential to result in deprivation of his interest in remaining alive. Whether or not this has been litigated within an inch of it's life for 20 years, the State of Alabama has been refusing to consider newly available evidence for the past 5.
The third element of
Mathews v. Eldridge probably goes in the state's favor--they have evidenced a strong interest in making this case "final." So, we'll give them that. But, since Grayson has a pretty powerful liberty interest--staying alive is about as fundamental a right as a human has-- and since a pretty straightforward, inexpensive, simple "additional procedural safeguard" would effectively protect it, I think the scale is tipped in Grayson's favor.
And
why aren't we testing all those on the nation's death rows who had biological evidence used against them in the pre-DNA days? Are we afraid of being
wrong? I suppose, the states that deny testing can continue to enjoy the fact that dead men (whose DNA goes with them to the grave) tell no tales.
The 11th Circuit winds up its decision by asserting that Grayson has "enjoyed extensive judicial process" in the 20 years since his conviction.
Grayson, 460 F. 3d 1328 at 53.
An extensive, and yet, incomplete and unfair judicial process.
Where's the justice in that?
