How the system failed William Ziegler: Perjured testimony, trashed evidence, lying jurors
By Brendan Kirby | email@example.com
February 01, 2013
William Ziegler reacts to his capital murder conviction in the torture death of Russell Allen Baker Jr. on
Thursday,March 8, 2001, in Judge Robert Kendall’s courtroom, in Mobile, Alabama. (Press-Register file photo)
MOBILE, Alabama – On a cold winter night in February 2000, Russell Allen Baker Jr. ended up dead from multiple stab wounds in a wooded patch near the Peach Place Inn apartments on Leroy Stevens Road.Within a week, Mobile County sheriff’s investigators zeroed in on William John Ziegler as the ringleader of a group of people responsible for Baker’s death and charged him with murder.
From that point to the time the defendant moved into a cell on Alabama’s death row, the system failed Ziegler at every turn, according to a Mobile County judge who recently granted the defendant’s bid for a new trial.
Mobile County Circuit Judge Sarah Stewart’s 218-page ruling faults the actions of investigators and prosecutors, the performance of his lawyers before, during and after the trial, and even conduct of two of the jurors.
The judge wrote that Ziegler’s lawyers failed to provide the most basic defense, with one of the attorneys actually throwing away key evidence that could have allowed them to make a compelling argument that one of his co-defendants used his car to move Baker or his body.
“Under any analysis, this Court cannot say that Ziegler received a fair trial and, accordingly, under our constitutional system … he is entitled to a new trial,” Stewart wrote.The judge, who conducted an extensive hearing in the case in 2010, determined that Ziegler deserves a new trial for a multitude of reasons related to prosecutorial misconduct and ineffective defense lawyers. The ruling came after Ziegler’s new lawyers filed a rarely successful post-appeal challenge available after defendants have exhausted their regular appeal options.
Stewart’s decision will not stand without a fight, though. The Alabama Attorney General’s Office has indicated that it will appeal, and the Mobile County District Attorney’s Office harshly criticized it. An attorney who represented Ziegler, now 37, also took issue with the findings.
“I strongly disagree with the order,” said Mobile County Chief Assistant District Attorney Deborah Tillman, who tried the case in 2001. “I did not and have not ever done anything improper in not turning over evidence.”
But Benjamin Nagin, a New York lawyer who took Ziegler’s case for free after the defendant lost his appeal, said the shortcomings Stewart cited in her order are well-documented.
“It’s a very detailed decision. It’s very well-reasoned,” he said. “I think it is unusual. But this is an unusual case. These are not technicalities. These are very serious errors raising very serious questions.”
Evidence in the garbage?
Authorities charged five people in connection with Baker’s death, but only Ziegler went to trial. The rest cut deals with prosecutors, and some of them testified against him.
Prosecutors contended at the trial that Ziegler beat Baker in retaliation for a racial slur and then forced him down a dirt road where he and his cousin, Alexander Randall II, stabbed him many times.
Stewart wrote that court-appointed attorneys Habib Yazdi and Greg Hughes largely accepted the state’s allegation of their client’s guilt because they failed to adequately investigate the crime.
Hughes said he did the best job he could but cannot recall many of the details more than a decade later. And he noted that he did not hear the testimony at the 2010 hearing on which Stewart based her ruling.
But Hughes said the very reason that post-appeal challenges exist is to give judges an opportunity to prevent miscarriages of justice that appellate courts have not caught.
“She’s the judge. That’s what she gets paid to do,” he said. “To my mind, it shows the system works.”
Stewart wrote that the lawyers’ inquiry consisted of little more than hiring an investigator who never had worked on a murder case. His previous experience involved arsons and other lesser crimes.
The investigator worked no more than 55 hours, even though Yazdi had previously estimated that he would need 300 hours, according to Stewart’s findings. She pointed to the investigator’s testimony that he talked to only two people who were not in the defendant’s immediate family. Remarkably, Stewart wrote, the attorneys did not speak to either of those witnesses.
Yazdi testified at the 2010 hearing that he viewed it as the job of the investigator, not the lawyers, to seek out potential witnesses.
“Think about going on trial for your life and your attorneys don’t bother to speak to any witnesses,” Nagin said.
Testimony at the 2010 hearing indicated that Ziegler’s lawyers failed to follow up on a “bucket full” of evidence that investigator Gary Cohen did gather. He testified that the defendant’s aunt and legal guardian, Odella Wilson, told him about a videotape showing a blood trail outside of the apartments at Peach Place down the center steps. It contradicted the state’s theory that the blood trail led down an outside stairway.
But the lawyers never watched the tape, Stewart wrote.
Wilson also testified that she gave Cohen a knife, a pair of socks discovered in a burn pile, bloody underwear and blood-stained shoes.
The clothing, which belonged to Randall, contradicted his testimony that he was only minimally involved in the killing and that he tossed the knives he and Ziegler used into a nearby catfish pond.
The attorneys had retained a DNA expert but did not submit the clothing or knives for analysis. In fact, Wilson testified, Yazdi told her that the jury would not care about the evidence and then proceeded to throw the materials in the garbage.
Yazdi adamantly said he never threw away materials and denied even being told about evidence cited in the judge’s ruling.
“These are a bunch of fabricated statements that the family of the defendant, Ziegler, fabricated,” he said in an interview with AL.com.
But Stewart said she found Wilson’s testimony credible because Cohen corroborated it and a memo that he wrote at the time documented the evidence that he had collected.
Holes in the state’s theory
If Hughes and Yazdi had done a more thorough investigation, Stewart wrote, they would have found a slew of other evidence to challenge the state’s theory of the crime.
Dr. Leroy Riddick, who was the chief medical examiner in the Mobile office of the Alabama Department of Forensic Sciences at the time, testified in 2010 that he concluded from the victim’s injuries that it was unlikely he was killed in the woods where he was found. What’s more, Riddick said, it is most likely that a right-handed person inflicted the fatal slashes to Baker’s neck; Ziegler is left-handed.
Riddick also disputed the state’s theory of the time of Baker’s death, around midnight on Feb. 19, 2000. The medical examiner said based on testimony that Baker had been drinking earlier that night, he should have had alcohol in his system when died. He did not, indicating that he died at a later time than the state contended.
Riddick testified that he freely would have told all of this to the defense lawyers had they asked. But he said his only contact with the defense team was a brief conversation with Hughes, who did not ask any of those questions.
According to testimony at the 2010 hearing, law enforcement officials who went to the wooded spot where Baker’s body was found all agreed that it had been dumped there. That included then-Mobile County District Attorney John Tyson Jr., then-Sheriff Jack Tillman and his chief deputy, James Mayo, as well as the investigators on the case.
Having never discovered these critical points, the judge wrote, the defense lawyers had no ability to conduct an effective cross-examination of Riddick when he testified at the trial.
Hughes and Yazdi also failed to follow up on other leads that Cohen turned up, Stewart wrote. She noted that the investigator spoke with Greg Willis, who owned a car lot where co-defendant James Gordon Bennett II bought a 1988 Honda Prelude that law enforcement authorities at one time believed may have been involved in the crime. Cohen reported that Willis told him he had found an evidence bag in the back of the vehicle after he had repossessed it.
Cohen testified that he told the lawyers that he felt Willis was holding something back, but the lawyers never followed up on it. Willis testified in 2010 that the bag contained a bloody sweatshirt and that the back of the car was full of blood.
Hughes said he recalls that the investigator reported that Willis had found an empty bag. He said he does not remember any mention of a bloody mess in the car.
Yazdi took exception to the judge’s characterization of his performance. He said he and Hughes visited the wooded area where the body was found and hired the investigator to probe the state’s evidence.
He said the case presented to him and his co-counsel was damning: The victim’s body was discovered a few hundred feet from Ziegler’s home. Witnesses from the neighborhood testified that Ziegler and Randall were walking him to the area. The victim was the ex-boyfriend of the mother of Ziegler’s child.
Three co-defendants fingered Ziegler as the killer, Yazdi recalled, and the defendant had made several incriminating statements to detectives investigating the case. He said he did not have access to much of the information contained in Stewart’s ruling, adding that he doubts a lot of it is true.
“Many of the facts that (the judge) relies upon, they did not exist at the time, and we were not told about them at the time,” he said. “A lot of them are fabricated.”
But Stewart wrote that attorneys in capital murder cases have a duty to believe their client’s innocence – even when he has confessed. They also have a duty to conduct a thorough investigation to challenge the state’s theory. Yazdi and Hughes fell well short of that standard, the judge wrote.
Prosecutorial misconduct cited
While faulting the performance of Ziegler’s lawyers, Stewart wrote in her order that prosecutors and law enforcement investigators undermined their ability to mount a vigorous defense by failing to turn over key evidence.
It began, the judge wrote, with the failure of Detective Dale Kohn to step aside from the probe when he found out that his niece, Dawn Kohn, may have been involved. Investigators steered away from evidence that could have implicated her, according to the judge.
Dawn Kohn was at Ziegler’s apartment on the night Baker died. Wilson, Ziegler’s aunt and legal guardian, testified that she found a letter Kohn had written to Bennett discussing the victim’s death before law enforcement authorities discovered the body.
Kohn made two statements to investigators. The first, which she hand-wrote at her high school, implicated Bennett but indicated that Ziegler was not involved. She later changed her story after coming to the Sheriff’s Office, according to Stewart.
Stewart wrote that Dale Kohn’s involvement in the investigation was a conflict of interest given his niece’s status as a potential witness. She also wrote that fellow Detective Donald Lunceford attempted to obscure Detective Kohn’s involvement, testifying during a preliminary hearing and again at the trial that he was the only law enforcement officer present during unrecorded questioning of the defendant. This was untrue, the judge wrote.
Stewart also found that Lunceford testified falsely when he said he was in the woods shortly after Baker’s body was discovered. That was not true, either, the judge noted.
Stewart also determined that prosecutors allowed testimony that they knew or should have known was false. During the trial, a Bayou La Batre woman testified that Baker, Ziegler and others were at her house in Bayou La Batre the night before the murder and that Ziegler threatened Baker.
Vicki Bosarge’s testimony that Ziegler told Baker he was a “walking dead man” was important because it supported motive in a case that largely was circumstantial.
But Bosarge recanted that testimony at the 2010 hearing, telling the judge that Ziegler was not the man who made the threats. That person, she said, was a light-skinned, dark-haired man.
“I’m so sorry,” Bosarge said at the 2010 hearing, sobbing an apology as Ziegler sat across from her in the court. “I am so deeply sorry because it wasn’t him.”
Bosarge testified that she was confused when talking to investigators because both Ziegler and Randall are named William.
She said she felt badly about her testimony as soon as she gave it and told a police officer about it when she got off the witness stand. She testified that the officer – she did not remember his name – told her she had done the right thing.
Stewart wrote that she found Bosarge’s testimony credible because two other people who were present that night – her son, Ricky Melton, and a woman named Margaret Roberson — corroborated it.
The judge made no determination about whether prosecutors intentionally withheld evidence favorable to the defense, but she wrote that does not matter. As Nagin, the defendant’s current lawyer said: “As a legal matter, it’s irrelevant. We have never sought to deal with the question of motive.”
Tillman, the prosecutor who tried the case, said nobody at the District Attorney’s Office withheld evidence or allowed false testimony
“I know that our office did not do anything improper, and I did not do anything improper,” she said.
Victim in co-defendant’s car?
Stewart pointed to testimony indicating that the Sheriff’s Office had evidence well before the trial that supported the theory that Bennett killed Baker far from the wooded spot in west Mobile – evidence that should have been given to Ziegler’s lawyers.
The Sheriff’s Office had obtained a warrant to search Bennett’s Honda for evidence that the vehicle was used as a means of committing the murder. The affidavit in support of that warrant has been lost, but Stewart noted that investigators would have needed to show they had probable cause.
And testimony at the 2010 hearing backed up the notion that the Honda played a role in Baker’s death. Then-Bayou La Batre police Chief John Joyner testified that his department received a radio alert from the Sheriff’s Office to be on the lookout for Bennett’s Honda and to check to see if Baker was inside.
Joyner testified that records of the radio call were destroyed by Hurricane Katrina in 2005. But the judge wrote that Joyner’s testimony indicates that it existed and that prosecutors had a duty to alert the defense attorneys to any possible evidence that might help their client.
The judge also pointed to testimony that the attorney for co-defendant Patricia Renee Davis sent the prosecutor a fax before Ziegler’s trial indicating that her client remembered hearing about a bag of clothes in the car.
Melton testified about a conversation with Bennett’s wife, Rose Johnson, in which she said Bennett had brought Baker back to Bayou La Batre in the trunk of his car and was seen cleaning out the trunk with chemicals.
Faulty appeal, dishonest jurors
According to Stewart’s ruling, Ziegler’s appellate lawyer also failed him.
The judge wrote that attorney Arthur Madden failed to raise several important points in his appeal – including a matter that Ziegler had specifically asked him to pursue. The defendant wanted to appeal on grounds that a lawyer who represented co-defendant Davis also represented him at a probation revocation hearing.
Madden, who declined to comment for this story, did not raise the objection in the appeal.
Stewart cited several other points that Madden should have raised in the appeal, including:
- the fact that the trial judge, Robert Kendall, allowed improper victim impact testimony.
- the allegations of prosecutorial misconduct.
- The fact that defense lawyers failed to object to the racial makeup of the jury.
Even the jurors did not escape the judge’s criticism. Several lied during jury selection, she found.
One juror indicated that she “probably” had discussed the death penalty in the past. In fact, Stewart wrote, that juror served on a jury in a capital murder case in 1994, making her assertion that she “probably” had discussed the death penalty misleading.
Another juror answered “no” on a questionnaire asking if she or a member of her family ever had been a victim of a crime. The juror acknowledged at the 2010 hearing, though, that both her brother-in-law and cousin had been murdered prior to Ziegler’s trial.
Hughes testified that he would have struck both women from the jury had he known the truth.
If Stewart’s ruling survives appeal, prosecutors said, they will put Ziegler on trial again. But Tillman, the assistant district attorney, acknowledged that prosecuting an old case will be challenging.
“The case was tried 12 years ago,” she said. “It puts us in a difficult position.”
Nagin, the current defense lawyer, said the state’s problem in not the passage of time but the evidence, itself.
“Witness after witness, including the state’s own forensic expert, contradicted the theory of that case, contradicted the evidence,” he said. “It was never right, and it’s not going to be right 10 years later.”