February 1, 2009
When it happened almost 30 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-as-dirt 19-year-old black man from the deep ghetto 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
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 being 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 second trial.
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.