Wrongfully Convicted

Note: Everyone identified by name in this expose has either cooperated with the government, came forward publicly or in the course of testifying, has been the subject of public testimony, authorized the use of their names and information, or is now deceased. To protect unwanted invasions of privacy, no one has otherwise been identified by me. 

IMAGINE 

Imagine that you are going about your daily business, maybe walking down the street, keys in hand, and just as you turn the corner you stumble upon a horrible crime, a murder. You happen to be acquainted with the victim, a former schoolmate. What’s more, as the murderer flees you recognize him as your neighbor, Frank, who you always found to be a bit of a shady character and was even rumored to have a criminal record. 

Now suppose that after you summon the police for help, you and Frank and a few others are taken to the station for questioning. Inexplicably and beyond comprehension, the police release everyone but you, who they arrest and charge with murder. It turns out, unbeknownst to you, that Frank was a favored confidential informant for the officers assigned to investigate the case and had pointed his finger at you. But Frank is hardly credible. Indeed, he gives a series of facially false, sometimes fantastical, and inconsistent versions of events surrounding the murder, all obvious fabrications intended to shift the blame to someone else. 

The trial date arrives, and instead of putting Frank on the stand the prosecutor calls one of Franks criminal cohorts, Jack, who was in the vicinity when and where the crime occurred and testifies that he’d seen you kill the victim. You can only sit and listen, visibly upset and utterly flabbergasted, but you continue to hold on to faith in the criminal justice process. Surely the process protects the innocent. 

Finally, it is your turn to put on evidence and your attorney, an experienced litigator, requests that Frank, the very person you had stumbled upon in the murderous act, be called to testify. You have no doubt that once his lies and prior inconsistencies surrounding the murder–all conveniently fabricated to put the crime on you–are heard by the jury, it will see right through the farce and just as assuredly see you exonerated. But the prosecutor also realizes this and, not one to lose so easily, immediately objects. The judge takes up the prosecutor’s cause and rules that your attorney may not question Frank on the stand as to his murder of your schoolmate because he has not been charged and no other evidence has been presented against him and, therefore, the judge continues, his testimony runs the risk of confusing the jury. That jury, never having heard about Frank or his prior falsehoods or his motives or opportunity, wrongfully convicts you of murder. 

Fortunately, this did not happen to you. But it is precisely what happened to me. 

THE MURDER 

In 1999, I was twenty-three years old and five years into a twenty-six-and-a-half-year federal sentence for bank and firearm crimes. By then, I was serving my sentence at the US Penitentiary in Florence, Colorado. I had arrived from the US Penitentiary in Atlanta, Georgia, following a hunger strike protesting the lack of potable water. In Atlanta I had a cell mate named David Brian Stone, a big, burly fellow with lots of jail time under his belt. Despite his white supremacist tattoos, Dave was fairly broad-minded and darkly witted, at least as longtime convicts go. Originally from Massachusetts via North Carolina, Dave was an east coast guy like me. 

I met Sean Riker in 1998 at Florence, after he was released from the segregation unit for having misused a hammer to bash in the brains of an old man in the prison factory over some minor affront. Riker was dubbed the “St. George Bomber” in the press, doing time for arson and explosive devices, setting off pipe-bombs in various synagogues and Mormon temples in Utah. In prison he became a member of the Nazi low Riders prison gang. How Riker repeatedly made it out of segregation after a series of attacks on other prisoners while others were being shipped to the new federal supermax installation in the same prison complex was a big mystery at the time. In any event, we ended up residing in the same unit and he became a student in one of the Adult Continuing Education classes I tutored, while he helped tutor me in the darker realities of prison life and gang culture. Unwittingly, he did a lot to help me understand the socialization and inner workings of white supremacy. At the time, although he was far more seasoned than I in the ways of prison, I liked to think I was schooling Riker in another way. He once commented that I was the only Jew he ever spoke with more than once, and on occasion would rib me with the lame anti-Semitic joke that meant approval without acceptance. But he was a large, intimidating guy and unpredictably, explosively violent. And a veritable mental case. 

Unfortunately, sometime in 1998 David Stone arrived at USP Florence from Atlanta after being stabbed by the infamous former member of the Dirty White Boys (another gang) and informant Ricky Carper, AKA Clown. Clown was on the outs with the gang and was himself recently stabbed by a group of DWB. This Clown claimed to be the so-called “Casper the Ghost” killer of the 1970’s, during which a serial killer among the inmate population was killing other inmates, one-by-one, sometimes leaving the shanks buried in their bodies. Officials could not identify who was responsible, and the killer used a typewriter from the warden’s office to send a taunting, cryptic note anonymously taking responsibility for the crime. But Clown’s claim has serious credibility flaws, and it is unclear why anyone would want to be credited with such ghastliness in the first place. 

I considered Dave a friend, as much as you might befriend someone in prison. Riker and I were antagonistically friendly, but not friends. He hated. He hated everyone other. And I definitely fell into the class of “other.” Dave’s arrival was uneventful, but, as sometimes happens in life, circumstances outside his control would soon conspire against him. The first such circumstance occurred just a few months following his arrival at Florence, when he was transferred back to the USP Atlanta at the request of federal prosecutors who decided to charge Clown with having stabbed him. The second circumstance came shortly thereafter when Clown obtained a potential prosecution witness list that contained Dave’s name and sent it to one of the Florence gang members, who shared it with Riker. The third circumstance came with the arrival of another DWB at Florence who learned passing through the federal transit center in Atlanta that the reason Clown had stabbed Dave was because Dave, while at USP Atlanta with Clown, had falsely claimed to be a DWB member in order to exploit the gang’s reputation and prospects. (Prospects are uninitiated gang members serving a probationary period under the gang’s members until eventually granted or denied membership. They are basically do-boys for the actual gang members until such time as they are initiated, at which point they get their own do-boys). Clown, himself a target of the DWB, stabbed Dave because he believed Dave to be a member, which was actually untrue. Claiming to be a member of a gang you are not is a no-no. You put yourself at risk from the gang’s enemies and at odds with the gang members themselves. 

At the end of the day, Dave actually refuses to testify against Clown, who is convicted anyway, and he returns to a huge headache of a mess at USP Florence. Because Dave is something of a friend and former cell mate, his headache somehow becomes my migraine, with gang members asking me to confirm or deny whether this or that was true of Dave while we were bunk mates in Atlanta. They believe he was falsely claiming to be a DWB member and had informed on the guy who stabbed him. They are one for two, but I do the best that I can to defend Dave and claim that, to my knowledge, he never alleged to be a gang member. I throw a lot of uncertainty into the mix. Riker, who for whatever reason hates Dave, now begins to hate me even more. 

Unbeknownst to anyone, however, and in the face of all his hype about the “convict code” and gang loyalty and his exhibitions of violence, it later came out that Riker was working as a confidential informant for prison investigators, which explains why, despite his insane episodes of violence, he was never seriously disciplined or transferred, but always returned to the general prison population. And herein lies the fifth circumstance to conspire against Dave. The white gangs, led by an Odinist white supremacist named Gary Collins (AKA Zipper), began to more than suspect that there was an informant in their mix who was giving up all of the drug, alcohol and weapon caches. Prison investigators always seemed to know the next spot almost as quickly as the whites came up with the hiding places. Riker needed a scapegoat, and he thought he’d found one in David Stone. Riker and Lawrence “Big Larry” Rasnick, a DWB later turned informant, penned a letter to then national DWB leader Ronnie Wiggins, who was home on probation, seeking permission to have Dave hit. But Ronnie refused to sanction the request, and instructed that Dave be let off with a warning or made to enter protective custody. 

Sadly, this is how prison yard politics often work, the wielding of influence and alliances and whatnot. But, whether a guard or an inmate, one thing remains true about prison life: it is violence and the threat of violence that rules at the end of the day. So it happened on a blistering sunny afternoon that Zipper, Riker, Big Larry and their fellow gang members tried to use the threat of violence to force Dave to voluntarily get off the yard and enter protective custody. 

It happened quickly, and I was unprepared, having been told that all of the problems stirred up over Dave were resolved. Dave believed so, too. He was on a bench after taking a post-lunch bout of exercising on the yard. On a bench beside him was a group of California Bloods. He was speaking with Big Larry, who was counting off the evidence pointing to Dave’s multiple supposed dirty deeds that offended the white supremacist gangs while being encouraged to enter protective custody. I was working the yard as a compound orderly. Because I was on the clock, I was required to be dressed in full khakis, suffocating in the heavy heat. I had no weapon and my movement was hampered by the work clothes. Then came Riker, putting the threat of violence behind the demand that Dave enter protective custody. I made to leave. Dave and I were friends of sorts, but this was his mess, one he created, and he was the prison savvy one, not me. But as I motioned to walk off, he turned to me, his eyes hinting, and asked me to stick around and hang out. Then he did something incredibly stupid. He told Riker, in a roaring baritone, to fuck off and go PC himself because he (Dave) wasn’t going anywhere. The Bloods’ laughter echoed from the neighboring bench and Riker tore off in a red rage. I knew this was all bad and hurriedly said my own goodbyes before getting out of Dodge, back to my duties of cleaning the yard. 

After a while, I circled back near Dave and Big Larry, still on the bench, to speak with another prisoner about buying some hot food stuff from the kitchen. Tomatoes and pasta. My heart skipped with the sudden change in expression on the kitchen worker’s face. Behind me the gravel rustled, and Dave screamed “What the fuck?” I turned as Dave, stabbed, ran around me.  Riker either tried to press the knife on me or threw it at me. Whatever his intent, it fell to the ground. In a panic and disoriented, I picked the weapon up out of the gravel and turned to run only to find Big Larry, I suppose believing I was going to get involved, smash me in the nose, using his body weight to knock me off kilter. I screamed at Dave to run, but he was way ahead of me on that score. Big Larry and Riker split the scene. Dave ran down a walkway, and I behind him. He took a left collapsed beneath another bench. I took a right and, looking around to make sure i was not being pursued, tossed the weapon atop a housing unit roof. Catching a lieutenant exiting one of the housing unit, breathless and pointing at Dave I pleaded for help. He called for assistance and the scene around Dave was secured. Blood pooled thickly around him, and it seemed very much like too much blood for any one man to lose. He remained conscious for a while. One inmate reported that when a staff member trying to slow the bleeding asked him to identify his assailant, he answered that he did not know, and to ask Mark Jordan who stabbed him. I walked to a bench in front of my housing unit and nursed a slight nosebleed. 

All of the other inmates on the yard, including Riker, Zipper and Big Larry, were sent to the bleachers on the other side of the  yard, from where a pair of bloodied gloves were recovered. I was handcuffed at the other end of the yard (by guards Ben Valle and Louis Milusnic) and taken to the Lieutenant’s Office where prison investigators unsuccessfully attempted to question me. I was examined by Hashim Erzouki, a physician’s assistance, and then taken to the  segregation unit pending investigation and placed in a cell along with two other prisoners. Later, I was told that Dave had died, and guards transferred me to an isolation cell. 

THE INDICTMENT 

I would be held in various forms of disciplinary and administrative detention at the notorious federal supermax, my conditions changing by the week. There is no language with which to adequately describe the mental and physical tortures I endured at supermax. The duration of my isolation was “indefinite.” I did my best to keep it together and continue educating and fighting against some of the injustices and to protect our limited constitutional rights as prisoners in the courts. I won several cases, which increased the ire of many in the administration, worsening my situation. Because my continued isolation was tied to the ongoing investigation into Dave’s murder, and because I didn’t see a whole lot of investigating happening, I amended one of my lawsuits in federal court to allege that my indefinite isolation without charge or allegation of misconduct was unconstitutional. I separately wrote the FBI making it clear that I did not actually witness Dave get stabbed (I was, in fact, facing the opposite direction) but, in an effort to clear myself as a potential suspect, I was requesting a polygraph examination on the single issue of whether or not I in any way assaulted or stabbed Dave. The FBI declined the polygraph invitation, and the court dismissed the lawsuit when, five years later in 2004, I was indicted for Dave’s murder. 

Once indicted, I became privy to some of the information that had led to the decision to accuse me. First and foremost, in 2001, the BOP issued Riker an Incident Report (BOP misconduct charge) charging him with Dave’s homicide. The report stated that Riker’s fingerprint was recovered by the BOP from the murder weapon. Riker then met with his BOP SIS handler and an FBI agent and defended against the charge by concocting a ludicrous story that it was me, and not him, who stabbed Dave and that one of the BOP officers, as a favor to the Mexican Mafia, made arrangements for other inmates to pass the shank to me and then this officer cleared me through the metal detectors so I could sneak out the weapon. He claimed that an alleged member of the Mexican Mafia conspired for reasons never stated. He said that I stabbed Dave because I owed a debt for drugs and wanted to avoid paying it by killing Dave so that I would be transferred to the supermax. 

After being coached by prosecutors, Riker would also testify before the grand jury. Conspiring with the US Marshal’s, prosecutors arranged for Riker to be placed in a holding cell with Zipper and other prisoners, including Tyrone Davis, so that they could all get their stories and testimonies straight for the FBI and grand jury. It’s an old tactic that allows prosecutors to plausibly deny knowingly presenting false evidence. If these guys weren’t first given a chance to get together and work out their stories, then the prosecutor would have to deal with conflicting statements and testimony. 

The assistant US attorneys to prosecute the case were David M. Conner and Gregory A. Holloway. I was appointed an experienced trial attorney in James Castle and we later added Thomas Hammond. 

As the trial date approached, the government continued to add new pieces against me, mostly in the form of prison staff suddenly remembering this or that as it became clear more was needed to get a conviction. It was mostly lies, but there were sine half-truths they were able to capitalize on. The lead prison investigator, SIA Johnny Carr and a health services administrator tried to claim that Dave identified me as his killer before dying, but the court ruled this unreliable and inadmissible hearsay under the Sixth Amendment. 

Our trial strategy was rather simple: discredit the government’s untruthful witnesses and, if possible, when the government called Riker, impeach him with his own lies and maybe even get him so tangled up in lies that he finally breaks down and confesses. Our twelve-member jury, with two alternates, consisted of Colorado residents Donald Smith, Loretta Leonard, Bryan Finnefrock, Nancy Allbee, Cynthia Casias, Bernard Kutler, James Petty, Daniel Eipper, Elizabeth Levine, Julia Mancini, Hu Quoc Vi, Gary Wood, and Sidney Spear. The alternate jurors were Christine Soderman and Kim Buchholz. All appeared to me to be decent folk and we felt comfortable that when Riker testified, they would see right through him. 

THE TRIAL 

Trial began and the government presented the following evidence: 

1. Gary Collins (AKA Zipper) testified that he was exercising on the prison yard when he saw Riker, myself, Dave and Big Larry conversing at a nearby bench. He claimed that at some point later Big Larry and Dave were seated at the bench when I walked behind Dave and stabbed him from behind. He also put Riker at the scene of the stabbing. He said Dave then ran and I ran behind him, but that Dave was far ahead. Zipper also claimed that I owed him $50. He further admitted that he initially told the Grand Jury that Riker handed me the knife, but walked back from that in his trial testimony after his coaching sessions with the prosecutors, now claiming that this was only something he’d heard from other prisoners. He also admitted that he previously indicated to my attorney that SIS Fels threatened to prosecute him for Dave’s murder if he did not cooperate (which is exactly what Fels had done to me, only I didn’t go for it);

2. Tyron Davis (AKA Taha) testified that he was on the prison yard that day and he saw me appear to push or shove Dave in the backside. He said I did not have a knife or weapon. His testimony was mostly evasive. (The defense would later learn that Davis was actually working in the Food Service building at the time of the homicide). Davis also claimed I owed him $50. for sodas he sold on the yard;

4. Norvel Meadors, an associate warden, testified that he’d seen two prisoners later identified as myself and Dave sprint across the yard and then saw me throw something on the roof of a housing unit;

5. Prison guards Benjamin Valle and Fares Finn testified that theyseenme toss something on the roof top and then walk to a bench and sit down, at which time I was searched, restrained and removed from the yard by guards Valle and Milusnic, whereas all other inmates (including Riker) were herded to the bleachers at the opposite end of the yard. Finn further testified that he later recovered a pair of bloodied gloves from those bleachers; 

6. DNA-The government presented evidence that DNA recovered from the weapon belonged to Dave, but that other DNA retrieved from the handle of the weapon did not match wither Dave or myself. This was the mysterious third-party DNA;

7. The government put on evidence that forensic examiners did not find any latent fingerprints on the weapon as it was packaged and received by them from the BOP;

8. Video-the parties dispute what the video depicts because it is so grainy, and the images of persons depicted cannot rightly be made out. Zipper admitted that he and the prosecutors went over the video to prepare for his testimony, making certain that he was sufficiently coached. But the video does depict what is not disputed: that Riker, Dave, Big Larry and myself are seated or standing around a bench eleven minutes prior to Riker stabbing Dave, that Zipper is on the yard (and conversing with Riker within minutes prior to the stabbing), and that Stone and I ran away from the stabbing scene after which I tossed an object on a unit roof top, and that Big Larry is the last person to be captured on camera sated with Dave;

9. Letter-One of Riker’s government handlers, SIS Edward Fels, testified that a letter was found addressed to my mother in which the author expressed dissatisfaction with the denial of a transfer request threatening to “slaughter” someone and expressing contentment with “doing his time” by himself. The letter had no return address (as required for processing) and Fels claimed it was found in my cell belongings after I as removed from the yard;

10. HashimErzoukitestified that he examined me in the segregation unit and that he recalls I flashed a “V-sign” (victory or peace) to a fellow African American prisoner and stated, “Guy, i get him out of the way for you.” (In fact, Erzouki examined me in the Lieutenants’ Office holding cell and he was unable to identify me at a pretrial hearing). 

Unexpectedly, the government rested its case without calling Riker to testify. we quickly filed a motion for acquittal mid-trial, arguing that the government had failed to present sufficient evidence of guilt such that there was no need to continue and send the matter to the jury for deliberation. While noting that the evidence against me was “thin,” Judge Babcock disagreed and held it to be sufficient to sustain a conviction if the jury found all of the government’s evidence credible, particularly the testimony of Zipper, the only person to have claimed to have seen me stab Dave. 

Because the government did not call Riker, my defense sought to put him on the stand ourselves. The government objected and arguments were had with the jury removed from the the courtroom. The prosecutors were concerned that Riker would get on the stand and exercise his Fifth Amendment rights against self-incrimination and to remain silent in front of the jury, and if that happened it would reflect poorly on the government’s case. But, we argued, Riker never indicated he would take the Fifth, and not only had he testified before the Grand Jury and made several statements to the FBI and prison officials, but he also freely spoke with the defense attorneys and investigators on several occasions. The judge then said he was concerned about why we wanted to call Riker since all of his prior statements, although inconsistent and not possibly true, nonetheless accused me of being Dave’s assailant. Then the truth dawned on Judge Babcock, and he asked if we intended to ask Riker whether he stabbed Dave. When we said yes, Babcock exploded that he would not allow us to do so in front of the jury unless we could first prove to him that there was sufficient independent evidence of Riker’s guilt. In other words, Judge Babcock held that before we could put Riker on to prove my innocence, we had to put on other evidence proving that Riker was in fact guilty. This was strange, because if we had sufficient independent evidence of Riker’s guilt, we wouldn’t have needed his testimony.  Still, my lawyers argued that (1) the video shows Riker at the bench minutes before Dave is stabbed, (2) Zipper initially testified that he was Riker give me the shank, (3) there was DNA of a third-party on the handle of the shank, (4) months before the murder Riker was caught in possession of a shank “identical in size and shape” to the murder weapon, (5) Riker’s statements to investigators after the stabbing proved proved he lied about the circumstances surrounding the crime and demonstrated a consciousness if guilt (that someone only intentionally lies about a crime because they are guilty), (6) just after the stabbing prison investigators booked Riker into segregation as the “suspect on Stone homicide,” and (7)) Riker testified before the Grand Jury that after the stabbing he went over to a set of bleachers from where investigators later recovered a pair of bloodied gloves. Shucks, there was far more evidence against Riker than had been fabricated against me. 

Judge Babcock would not budge. He refused to let us call Riker to testify in the grounds that “any probative value [of Riker’s testimony] is substantially outweighed by the danger of prejudice and confusion to the jury.” Babcock said “This is in my view a classic speculative attempt to blame a third person so as to create a grave risk of jury confusion. It invites the jury to render its findings based upon a notion of prejudice.” It may be the first time that a federal court has ever prevented a defendant in a murder case from calling the actual murderer to the stand in his defense. The trial attorneys were shocked and amazed, certain this ruling would be overturned by the appeals court should the jury find me guilty. 

we proceeded without calling Dave’s killer to the stand. Because our entire strategy evolved around the expectation that one way or another, whether called by the prosecution or the defense, Riker would testify, Babcock’s ruling excluding his testimony left us without a defense. We had to mull over what to do. I decided that I should testify. My attorneys, however, were adamantly of a different opinion, at one point even threatening to withdraw. they believed that as things stood, I had a good chance of being acquitted or at least getting a hung jury. Even Judge Babcock said the government’s case was rather thin. But my attorneys took the position that if the jury somehow believed Zipper and wrongfully convicted me, Judge Babcock’s refusal to let us call Dave’s killer to the stand would be all but automatically reversed by the appeals court. But if I testified and was convicted anyway, then we would lose the Riker issue on appeal because the appeals court would rule that any error from the court’s refusal to let Riker testify was “harmless” since the jury could have heard substantially the same testimony form me that we sought to elicit from Riker. In hindsight the attorneys had the right of it, but I remained steadfast, and so did the lawyers, who then went to Judge Babcock and indicated that we were at loggerheads over my decision to testify and requested that Babcock address the matter with me directly. Judge Babcock refused, and my lawyers did not call me to testify. 

The jury deliberated for days, during which the government offered me a plea deal of six years to manslaughter. I declined. I could have pleaded guilty to something I didn’t do, and probably would have if Riker and Zipper and the BOP folks didn’t conspire to set me up for the fall. But at this point and under the circumstances I just couldn’t do it. My ordeal became more than what served me best; it became a self-flagellating quest for justice. Instead of justice, I was found guilty on all counts (second degree murder and assault), and Riker and Big Larry were released from prison. I immediately released my trial attorneys. Judge Babcock appointed Raymond P. Moore, then Federal Defender for Colorado, to represent me for purposes of sentencing and appeal. 

SENTENCING AND APPEAL 

I was lucky to have been appointed Raymond P. Moore to represent me at sentencing. He advocated strongly for my innocence to the court and compellingly argued against the life sentence sought by the government, and I am sure I did not make things easier on him by addressing the court at sentencing. Although I had been a first-time offender prior to the murder conviction, Judge Babcock determined that I qualified to be sentenced as a “career offender” under the US Sentencing Guidelines Manual by counting my 1994 state and federal convictions as separate offenses, even though they involved the same crime spree and a single arrest. This was just bad luck. If either the state or the feds had charged me for all those crimes, then I wouldn’t have qualified and my sentencing range would had been about 17 years for the wrongful homicide conviction. But since those jurisdictions decided to each charge me separately, the charges stemming from that prior arrest counted as two separate convictions and my sentencing range jumped to 30 years to life. We were hoping for 20, but Babcock settled on 35. Whether or not he really thought me guilty, I will probably never know. And it may have been irrelevant to him. The government charged me and a jury convicted, even though it was allowed to hear only the government’s case. Raymond Moore is now a district court judge on that very same federal court after having been appointed to the bench by President Obama. 

On appeal, Ray Moore had arranged for me to be represented by Howard Pincus, a former NSA attorney. You could almost tell that he was a former spook by how ridiculously paranoid he was about the privacy of mail, telephone, email and third-party communications. I sometimes teased him about it. But after Snowden, we all know how ridiculous this former NSA attorney was not. He did a good job with the appeal. The main argument was that Judge Babcock erred by not permitting us to call Riker to the stand and present the evidence against him. The appeals court, while noting that it may have decided the issue differently, held that Babcock’s ruling did not constitute an “abuse of discretion,” the standard for reviewing evidentiary decisions. (Though we believe the Sixth Amendment guarantee of the right to present a complete defense and call witnesses should have come into play, requiring a more demanding standard). According to Judge Timothy Tymkovich, the former state prosecutor who authored the opinion: “we find no reversible error since no witnesses saw Riker next to Stone at the time of the murder, the alternative perpetrator theory rested primarily on either (1) a long-shot hope that Riker would confess on the witness stand, or (2) that his lack of credibility would support an inference that he committed the stabbing.” 

RIKER CONFESSES 

In 2012, I was imprisoned in Pennsylvania when I got a letter in the mail from David Conner, the federal prosecutor in my case. Enclosed was a courtesy copy of a letter he’d received from Sean Riker confessing to killing Dave and arranging for me to take the fall. The following month, Riker also wrote to several of my former attorneys. Riker had been re-arrested in 2011 for physically and sexually abusing his wife and pre-adolescent step-daughters and was incarcerated in the state of Wisconsin. According to his letters, he was innocent of those charges, but he was guilty of killing Dave and falsely accusing me and believed that his now being charged with crimes he did not commit was karma for what he had done to me and Dave. 

I immediately forwarded the letter to a group of attorneys I had worked with back in Denver, who helped me obtain new counsel, Michelle Berge, Dru Neilsen, Sean Connelly and Michael Kotlarczyk of the firm Reilly Pozner LLP. Later, Laura Rovner of the University of Denver’s Student Law Office would also assist along with two student attorneys. It was something of a dream team. Michelle, Sean and Dru followed up with Riker at the Wisconsin prison. He provided a detailed affidavit as to how and why he killed Dave and falsely claimed I had done so. He was still not totally forthcoming, apparently trying to protect Zipper and Big Larry, but a confession was a confession and I could not have been happier. Finally, I thought, I would have justice. Riker then agreed to provide a DNA sample and, as suspected, his DNA matched the DNA recovered from the handle of the murder weapon. We also were contacted by Riker’s ex-wife, who informed us that Riker had had told her that he had killed someone while in prison and gotten away with it. What’s more, through a Freedom of Information Act request, we obtained an official internal Bureau of Prisons’ “After Action Review Report” written back in 1999 which the author falsified to allege that I had confessed to prison investigators to having committed the murder. 

In addition, after learning that the DNA from the handle of the shank matched Riker, my original trial attorney, James Castle, provided us with an affidavit acknowledging that he had rendered me constitutionally ineffective assistance of counsel by failing to have this DNA matched against Riker prior to the trial, at which time the evidence evidence could had been presented to the jury (assuming Judge Babcock would allow the jury to hear about it). The evidence may have altered Judge Babcock’s decision not to allow us to put Riker on the stand. It would had been awfully difficult to justify not letting us force Riker to explain how his DNA got on the handle of the murder weapon when, at the time of trial, he claimed to have been innocent and to never have handled the weapon. 

MOTION FOR NEW TRIAL 

We took these new facts back to the US Court of Appeals for the Tenth Circuit. Then judge and now Supreme Court Justice Neil Gorsuch granted our request to file a second motion with Judge Babcock for post-conviction relief. The appeals court held that this new evidence, “if proven, could be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found Mr. Jordan guilty of the crime.” So the case was brought back before Judge Babcock, who decided to hold hearings on whether in light of the new evidence I am entitled to a new trial. 

Sadly, these hearings turned into as much of a sham as the trial. First, just before the hearings, Riker irately wrote my attorneys claiming that he was pissed off that I wrote something about him on the internet and that my lawyer had contacted his ex-wife. Consequently, Riker said that he was no longer willing to testify and, in fact, was recanting his confession, which he attempted to do when eventually called to testify at the hearing. Then Judge Babcock reversed his earlier decision about the admissibility of the so-called “dying declaration” that the prison investigator Johnnie Carr claimed he obtained from Dave before he died naming me as an assailant. Then the government tracked down Big Larry in a Florida jail where he was facing a mandatory 30-year sentence for armed robbery. The government cut that down by 15 years and arranged for Larry to do his time in a lower security federal prison in exchange for his testimony that Riker’s confession was false and that I had stabbed Dave. 

In a contemporaneous conversation with a former attorney, I explained what I perceived to be Judge Babcock’s thinking. At trial, he prevented my defense from calling Riker to the stand, knowing full well we would prevail if the jury heard from him; a federal appeals court upheld that decision, deriding the possibility that Riker might take the stand and confess; both courts would later deny my post-conviction appeals and a request by a retained attorney to obtain access to the case file after the US Attorney’s Office argued that he wasn’t a familiar enough figure in criminal justice; and both Judge Babcock and the appeals court denied my request to have the mystery DNA from the handle of the murder weapon matched against Riker. For the government or a modern federal judge, after all their successful efforts to suffocate the truth, to now admit that the wrong guy was convicted would impact the public trust in the federal criminal justice system in intolerable ways. It is a fiction that the justice system works and wrongful convictions don’t happen that keeps the system going in the government’s favor. 

Judge Babcock was not about to allow that public faith in the federal justice system to be eroded, even if it meant sacrificing an innocent man. After all, I was just a prisoner, already established to be a criminal. I simply no longer mattered to society. Like most federal judges, Babcock is ideologically driven. But ideological corruption is the worst sort of bias because a fiscally corrupt judge will sell out to whomever happens to be the highest bidder whereas an ideologically corrupt judge will always favor one side. What’s more, I think Babcock felt that I was close enough to the characters involved and what had occurred to assume that I was somehow, in some way, myself involved. Would he protect me, or would he protect the public perception of the system. The attorney, a big man of years, began to cry. 

To combat the lie of Johnnie Carr and prison administrative assistant Terry Finnegan that, under questioning by Carr in the prison medical building, Dave identified me as the person who’d stabbed him, we learned of a witness who could testify that this could not be true.. Her name was Jannette Spence, and she was the Lieutenant at USP Florence who escorted Dave to the hospital, holding his hand and comforting him along the way. When contacted, the prosecution expected that she would corroborate Carr and Finnegans’ story. But she did the opposite, testifying instead that Carr was frustrated and still trying to get Dave to identify his attackers even as Dave was loaded into the ambulance and the doors closed, leaving Carr behind at the prison. Of course, had Dave already identified his stabber to Carr while in the prison infirmary, Carr would not have still been trying unsuccessfully to get Dave to tell him who’d stabbed him. But Riker and Zipper had been Carr’s confidential informants, and it was obviously in his interests that neither of them be implicated in anything close to murder, especially given Riker’s violent episodes. Miguel Medina, a prison medic, also testified that he was present when Carr and Finnegan were in the prison exam room and Carr attempted to question Dave. Medina testified that contrary to their allegations, Dave said only that “it was about a drug debt” and never mentioned me in any way. 

We also put on Riker, who, as warned, recanted his confession and made a mockery of the proceeding. In hindsight, I’d rather he’d taken the Fifth, but he exuded hate and dangerousness and re-avowed his white supremacist nonsense. We also put on our DNA expert to establish that the DNA from the handle of the murder weapon is Riker’s. Riker’s ex-wife, Tayler Morrison, testified that Riker had told her he’d killed a man while in prison and had gotten away with it. When her testimony got into all that Riker had done to her and her little girls during their marriage, I cried for the very first and only time throughout the case. I testified and subjected myself to cross-examination by AUSA Conner. I told the truth and was unperturbed. I don’t think there was a neutral person in the courtroom audience who doubted my testimony on any point, and an initially skeptical reporter said as much. We also established that the author of the After Action Review Report, either Johnnie Carr or Edward Fels, had falsified the document to claim that I had confessed, Both Carr and Fels denied remembering adding to that report, and both denied authorship. 

The government countered with Walter Clark, my 1999 Unit Manager, who claimed that a month prior to Dave’s death I requested a single cell and when the request was denied i said “What do i have to do? Kill a motherfucker to get to the supermax or ADX to get a single cell?” Clark could not explain why after 15 years he was suddenly able to remember something that would have been so significant and failed to report when he was originally questioned in 1999. 

Judge Babcock concluded the evidentiary hearings and everyone but me was optimistic that he would grant a new trial. Before Babcock let everyone go, he said he needed some time to mull over the matter and “see how it all shakes out.” The only major legal argument was whether the court could properly consider the government’s newly presented evidence–Finnegan’s allegations about the dying declaration, the new testimony the government bought from Rasnick in exchange for the 15-year sentence reduction, and Clark’s fib made for the first time 15 years after the homicide claiming I told him I wanted a single cell and referencing killing somebody–in deciding the issue. Although it seemed unlikely that a rational jury would believe any of it, we didn’t have the time or the resources to investigate for contrary impeachment information. Our view was that the government could present this to a jury at a retrial if it chose. 

JUSTICE DENIED 

On January 28, 2015, Judge Babcock issued a 19-page order denying the new trial request. He found: 

(1) that “Riker has serious credibility problems such that neither his statements admitting to stabbing Stone nor his statements denying that he did so are credible,” (well, one or the other must be true); 

(2) The fact that Riker’s DNA was recovered from the handle of the murder weapon is immaterial because it only proved that Riker must have handled the weapon at some point, not that he committed the crime; 

(3) Finnegan’s testimony that Dave identified me as his assailant to SIS Carr before leaving the prison for the hospital was credible despite the testimony of prison medic Medina that he heard no such thing and, more importantly, the testimony of Lieutenant Spence that Carr was still unsuccessfully trying to get Dave to identify his attackers when she left the prison with Dave for the hospital. Babcock found that these discrepancies are not “significant”; 

(4) Big Larry’s testimony “bears some credibility”; 

(5) Riker’s ex-wife, Tayler Morrison, “credibly testified that Riker told her he had killed a man in prison and gotten away with it,” but “the fact that Riker told this to [her], however, does not make it any more likely to be true given the significant [] issues with Riker’s credibility”; 

(6) Walter Clark “credibly testified” about coming forward 15 years later about the single cell request and statements I allegedly made; 

(7) my testimony is not credible “primarily because it is inconsistent with other credible evidence in this case, including eyewitness accounts and Stone’s statements” allegedly made to Carr and Finnegan, and because of “the tremendous benefit to [me if my] murder sentence was vacated at a new trial.” (In other words, since I would benefit from a new trial, I am not credible); 

(8) “the statement in the After-Action Report that [I confessed to the stabbing] is false. It does not follow, however, that any statement by BOP witnesses is not credible.” 

Judge Babcock astonished all when he found that none of the new evidence we presented would probably result in an acquittal if I were given a new trial, the standard for granting or denying the motion. 

We went back again to the appeals court. The Tenth Circuit US Court of Appeals again affirmed, holding that it did not need to address the legal question of whether Babcock was wrong to consider the government’s new evidence (Carr and Finnegans’ allegations that Dave identified me, Walter Clark’s perjury, and the testimony purchased from Big Larry) because my new evidence (Riker’s confession, the DNA, and the testimony of Riker’s ex-wife), even when viewed in isolation, was not enough to warrant a new trial. The Tenth Circuit agreed with Judge Babcock’s riddled finding that a jury at a new trial would find Riker’s confessions that he stabbed Dave are not credible and that his denials to having done so are also not credible. 

It is here that my legal journey pauses. Without some additional previously undiscoverable evidence or person(s) who can credibly testify to having witnessed Riker stab Dave, it is unlikely that I will be able to have the court give the case another look. The history of this case shows that no new evidence may be good enough for this court. But the court of public opinion may help prevent the next wrongful conviction, both in terms of refusing to vote for a conviction in any case when called upon for jury duty because the system is so corrupted that a juror can never know whether s/he is being allowed to hear all of the evidence, and by demanding that lawmakers close the legal loopholes that allow for prosecutors and judges to  get wrongful convictions, such as the one in this case. In addition, with enough support and attention, the President could grant me a pardon or commute my sentence.