Bryant “Rico” Gaines to Walk Free Today in Ohio: Reflections on System Resistance to Innocence

Later today, Ohio Innocence Project client Bryant “Rico” Gaines will walk free after serving 9 years of a life sentence for a murder he did not commit.  (Details of case, and grounds of innocence, available  here).  OIP attorney Karla Hall and Cincinnati defense attorney Bill Gallagher, along with scores of students, worked very hard over the years to bring about Rico’s freedom, and they deserve many congratulations.  But Rico will not be going home cleared of all charges, despite the fact that he is innocent.  He walks free today after deciding to  take a plea deal to a reduced charge of “conspiracy to commit involuntary manslaughter.”  His decision was simple.  He has two daughters, including an 11-year old daughter that he has barely seen since she was 2 when Rico was locked up.  Rico knows he had nothing to do with the murder in this case, but after having clear evidence of  innocence in his favor for many years, and seeing how the prosecutors and courts refuse to listen, he decided that taking a plea and lying about his involvement in the murder was the price to pay for freedom and being reunited with his daughters immediately.

Rico’s case is a testament to three things:  (1) how difficult it is for an innocent man to win his freedom when there is no DNA in his case; (2) the lengths that the system will go to deny admitting a mistake; and (3) how difficult it is for a lawyer representing someone like Gaines to navigate the landmines placed in her way.  Rico was originally convicted primarily on snitch testimony–a witness who was given leniency in exchange for pointing the finger at Rico [correction:  This witness was not given leniency in exchange for testimony…see here].  A few years after his conviction, the guilt of the snitch made him recant his trial testimony.  Rico tried to get his conviction overturned at that point, but as anyone in this line of work knows, a recanting snitch will get you nowhere in the courts.

A few years later, after the OIP got involved, a new witness came forward who said that he had witnessed the shooting (the shooting occurred on a public street).  This new witness (who contacted us, not vice-versa) could identify the true killers, and also state with certainty that Rico was innocent.  The new witness had been afraid to come forward earlier because the true perps were dangerous and the witness had teenage children still in the home at the time.  But now he felt comfortable coming forward because his children were raised and gone and the true perps were behind bars for other crimes.

When this new witness arrived on the scene, the OIP contacted the prosecutors and offered to allow them to interview the witness and polygraph him.  We believed if the prosecutors were concerned with justice, they would be able to see with their own eyes (and the help of a polygraph) that the new witness was telling the truth and that Rico was innocent.  In addition, the OIP had had experts examine the ballistics from the crime scene by that time, which showed that the State’s theory at trial as to how the shooting occurred was impossible.  The ballistic analysis demonstrated that the murder occurred the way the new witness said it did.  But the prosecution refused our offer to hear out the new witness.  They were uninterested in either meeting him or polygraphing him with their own polygraph expert.  So the OIP hired a polygraph expert frequently used by the prosecutors, and the new witness passed the test.  The prosecution was unmoved.

After a motion for new trial was filed, the prosecution, however, reached out and said they DID want to interview the new witness now.  So we sent our witness downtown hopeful that the prosecutors would have open hearts and open minds.  We were confident that anyone who was attempting to be objective would find our new witness credible and would be able to see the miscarriage of justice that had occurred in this case.  Instead, when our new witness arrived, the prosecutors arrested him on the spot for outstanding traffic tickets, and held him in custody until he could pay.  It took a few hours for our witness to call his church and get friends to gather up the money to pay his traffic tickets.

We knew at that point that our olive branch had been futile.  The prosecutors were invested in the adversarial system, they wanted to “defend the conviction” at all costs, and they were not interested in taking an objective look at the truth.

The case then went forward with a hearing on the motion for new trial.  At the start of the hearing, by some obvious predesign, the man who had prosecuted the case years earlier and who was now a sitting judge in the same courthouse entered the courtroom and addressed the judge from the back of the courtroom.  The prosecutor-now-judge told the sitting judge details of the case from years ago and how Rico was clearly guilty.  The prosecutor-now-judge said that he was “absolutely certain” that the snitch’s testimony at trial had been accurate, and was “absolutely certain” that Rico was guilty.  This was unsworn, uncross-examined “testimony” from the back of the courtroom while Rico’s attorneys looked on helpless.  After hearing this, the judge canceled the hearing that was supposed to start in a few minutes, and dismissed the motion for new trial without allowing the new witness to testify.

A year later the Court of Appeals reversed, holding that the trial court should have given Rico a hearing and taken testimony from the new witness.  The appellate court did this despite not knowing about the “testimony” of the prosecutor-now-judge, which had been the real reason the hearing had been canceled, because the inappropriate colloquy had taken place “off the record.”  The Court of Appeals also held that the new witness’ testimony constitutes “new evidence,” a legal determination which means that the trial court can consider it in a motion for new trial.

When the case was remanded, a new trial judge had fortunately taken over from the one the year before.  This new trial judge–Judge Nadine Allen–heard testimony and granted Rico’s motion for new trial, finding that the new testimony was credible and exonerative.  But Rico remained in prison while the State appealed.

On appeal for a second time, the Court of Appeals inexplicably reversed itself from 2 years prior.  In reinstating Rico’s convictions, the Court of Appeals contradicted its decision from just two years earlier, and held that the new witness did NOT constitute new evidence (and thus could not be considered) because the defense attorney could have discovered this witness before trial with reasonable diligence.  This finding was made by the Court of Appeals despite the fact that:  (1) the same appellate court had held 2 years earlier that the new witness DID constitute new evidence; (2) no one knew about the new witness at the time of trial–not even the police; and (3) the new witness had already said that even if he HAD been miraculously tracked down and interviewed at the time of trial, he would have remained silent because he was in too much fear at that point.  Thus, there was, in reality, no way that the trial attorney could have obtained the new witness’ testimony before Rico’s trial.

The Court of Appeals reached this decision by finding facts that were not only NOT in the record, but that contradicted the actual evidence in the record.  And since the OIP already had won on the “new evidence” issue earlier in the case, it hadn’t done at the hearing before Judge Allen what it could have done if it had known the Court of Appeals was going to reach that issue again–put on tons of evidence showing that the trial attorney could not have discovered the new witness prior to trial.  Thus, the fact that the Court of Appeals reached this issue under these circumstances was fundamentally unfair.  But since the Court of Appeals found that Rico’s wrongful conviction was the fault of the trial defense attorney, and the OIP had not plead the case as an “ineffective assistance of attorney” case, Rico’s conviction had to be reinstated.  This was a shocking blow to Rico, his family, and all involved.

OIP staff attorney Karla Hall could conceivably had plead the case from the beginning as an ineffective assistance case, and placed the blame on the defense attorney.  But there was no evidence supporting such a claim.  Karla felt that if she had litigated the case that way, she would have been subject to Rule 11 sanctions–penalties that are imposed on attorneys for bringing claims that are unsupported by the facts.  But the lesson Karla and OIP has taken from this case is clear:  Courts will go to unbelievable lengths in some instances to avoid overturning a murder conviction.  Every conceivable theory must be plead in the alternative, lest some court at some point twist the facts and dismiss the case in the manner done in Rico’s case.

So after this loss in the Court of Appeals, Karla and Bill refiled in the state trial court alleging ineffective assistance of counsel based on the findings of the Court of Appeals.   Rico knew at that point that he was starting at ground zero.  It could take years again until his case would be heard on the merits.  It was at this time that the prosecutors offered a deal:  plead to conspiracy to commit involuntary manslaughter and walk free right away.  No option for an Alford plea (where the person pleads but says they didn’t do it)  Despite his innocence, Rico took the deal immediately.

It’s a sad day when an innocent man has to lie in court to taste freedom.  But the bottom line is, Rico will be free.  He will be back with his daughters in just a few hours.  I cannot say that, knowing what I know about the system, I would have anymore faith than Rico.  With two kids and a wife at home, I would have taken the deal too.

UPDATE, INCLUDING PROSECUTOR’S RESPONSE TO THIS POST, AVAILABLE HERE….

15 responses to “Bryant “Rico” Gaines to Walk Free Today in Ohio: Reflections on System Resistance to Innocence

  1. arkansastruthseeker

    Congratulations to the Ohio Innocence Project ….Thank god for all the people like you working to free the innocent!

  2. This is enough to bring me to tears.
    My head is going to explode.
    And this is just ONE case.

  3. Mark, first of all I congratulate you and your team, University of Cincinnati OIP for all the hard work and another success . I enjoyed reading your story; Honestly, I am shocked to learn that not only in the third world countries but even here in America twisting the judicial system, hiding the truth, denying the innocent the deserved freedom in order to hide your failure and gain success still exists. To Rico, the judicial system was like cancer disease, you try to cure it but it keeps attacking the body. I am glad the OIP exists to help the innocent gain their freedom. Congratulations to Rico and all his family.

  4. Mark, thank you for sharing this incredible account of the hard work of reversing a wrongful conviction. Every exoneration is so difficult, so hard-won in a system that resists acknowledging error. Reading your piece here clarifies why most experts consider the Innocence Project’s 289 wrongful convictions to be the tip of a much larger iceberg. Congratulations to you, the Ohio Innocence Project, Karla Hall, and OIP lawyers and students. Thank you for your important work.

  5. So the state’s argument was that even a minimally competent investigation would have found this mountain of exculpatory evidence back when they convicted him. Nice.

  6. Parking tickets? Locally we had a witness (the alleged victim) recant his testimony given ten years earlier. The charge was rape in jail and there was no physical evidence. The recanting witness told the IP that he and two other boys made up the story in hopes of getting favorable treatment. The prosecutor scheduled the witness’s deposition. The court gave the witness use immunity. The first words from the prosecutor’s mouth (after introducing himself) were (and I paraphrase): “I understand that you have use immunity. Nevertheless I will do everything in my power to prosecute you for perjury if I find by independent evidence that you committed perjury in the first trial.”
    The witness then returned to his original testimony. The statute of limitations on the original perjury, by the way, ran out five years ago.

  7. Jeff-sad, but par for the course. I have several similar stories, if not worse. All in good time….

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  9. I’m thrilled for Rico and his family that he will be home soon. This is infuriating, however, for the reasons you already stated. Unbelievable, except we know it happens in courts all over. Nice work by OIP!

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