THE TRUTH COULD SET THEM FREE

On the shakiest of evidence, Daryl Valentine -- and lots of others -- are
doomed to languish in jail.

It doesn't matter how many times attorney Thomas Ullmann tells his former
client, Daryl Valentine, that things could be worse. The fact that
Valentine could be on death row rather than sitting in the open visiting
room at MacDougall Correctional Institution is cold comfort to a
31-year-old facing 100 years behind bars.

Valentine is bitter. And if what he says is true, he has reason to be. He
has been found guilty, twice, of a shooting that left two people dead and
one wounded in New Haven. Yet, Valentine claims, and his attorney firmly
believes, he is innocent.

"I've been convinced this guy was innocent from day one," Ullmann says.
"It's not an easy thing to lose a case when you believe a guy is innocent."

It's even harder because Ullmann has lost this case not once but twice. The
first conviction was overturned on appeal and Valentine was given a second
trial this past spring. The verdict still came back guilty.

Despite a perenially overwhelming case load, despite losing twice already
before a jury, Ullmann is appealing a second time to have Valentine's
conviction overturned.

A look back at the evidence in the case offers a vivid picture of a
phenomenon currently making headlines both locally and nationally: the
jailing, sometimes for life, of people who either didn't commit the crimes
for which they were convicted or for whom the police had no credible
evidence on which to base their arrest in the first place.

Valentine is spending his life behind bars because two juries saw no
important physical evidence tying him to the crime. The juries believed a
single witness with deep credibility problems, a second witness who
recanted, and two cops with a record of either forcing false statements out
of compromised witnesses or hiding exonerating evidence.

As Ullmann presses Valentine's case, for instance, community activists in
New Haven continue to press the state for the release of or anew trial for
Scott Lewis, who is serving a 120-year sentence that an exhaustive FBI
investigation suggested he didn't commit. The FBI investigators concluded
that a crooked city cop, in business with drug dealers, framed Lewis,
another drug dealer, to settle a debt. This was one of several recent cases
in which new evidence has cast doubt -- and in some cases led to new trials
- -- on convictions.

The wrongful-conviction phenomenon was the subject of a citizens'
conference in New Haven last weekend, and the first-ever nationwide
conference on wrongful convictions will be heldonNov. 13 in Illinois by
Northwestern University Legal Clinic. (See accompanying story, "It Can
Happen Here.")

One thing's for certain in Daryl Valentine's case. If Valentine had it all
to do over again, he never would have gone to the Athenian Diner that
fateful night. Because being at the New Haven eatery at 2:40 a.m. on Sept.
21, 1991, put him in exactly the wrong place at precisely the wrong time.

Police reports and court documents give this account of what happened that
night. Despite the lateness of the hour, the diner was packed with people
hungry after a Saturday night of clubbing in New Haven. Christopher Roach
was one of them. He told the court he was coming up the front steps of the
diner with two companions, Andrew Paisley and Hury Poole, when he noticed a
crowd of people in front of the diner.

There was a fight. According to Roach's testimony, a man ran around from
the side of the diner. The man had a gun. He opened fire and hit Roach's
two friends. The shots were fatal. Roach told the court he saw the shooter
run to a waiting car and jump into the passenger side. Before the car
pulled away, he says, he ran over to the driver's side door, at which point
the man with the gun reached past the driver and shot him twice in the arm.

According to Roach, Valentine was the man who shot him.

In an interview recently at MacDougall, Valentine describes a different
scene. He was sitting in a booth by the kitchen, he says, with a friend. "I
was inside the diner when it happened. It was a panic inside, but
everything was happening outside. I was nervous. I was inside." He repeats
the word "inside," leaning forward across the table in the visiting room of
MacDougall for emphasis. He has told his story before, to police, to
courtrooms, but no one has listened so far. No one that is, except his
family and his attorney.

After spending nearly two decades in New Haven's Superior Court's Office of
the Public Defender, Tom Ullmann is no innocent, and he wouldn't say many
of his clients are either. "I could probably count on one hand where I
would go out on a limb and say this is an innocent guy," Ullmann says.

Indeed, for most public defenders, a day at work is less like an episode of
Law & Order and more like a day spent at the Department of Motor Vehicles
- -- lots of waiting around and a mountain of paperwork to process.
Overburdened by cases, they spend much of their day arranging plea
bargains. Indeed, the courts today seem more about dispensing with cases
than they are about dispensing justice.

Many people arrested for crimes are guilty as charged, and they don't care
to take their cases to court. The problems arise when someone is charged
with a crime he or she didn't commit. Our system, founded on the
presumption of innocence, may have become so efficient at, and so tailored
to, convicting the guilty that the safeguards ostensibly in place to
prevent wrongful convictions may not work.

If you think it's not possible for a person to be convicted of a crime they
didn't commit, think again. In their book, In Spite of Innocence, Michael
L. Radelet, Hugo Adam Bedau and Constance E. Putnam documented 400 wrongful
convictions in death penalty cases. Not all those mistakes were caught in
time.

In the aftermath of the shooting for which Valentine was charged, people
couldn't get out of the diner fast enough. The parking lot emptied. One of
the cars reported seen leaving the vicinity belonged to Valentine's friend,
Tyrone Adams.

As it happened, Adams and Valentine were both known to New Haven's police
department. Valentine was, at the time, already serving the last month of a
five-year sentence for dealing drugs. He was out on a weekend furlough the
night of the shooting. It's not hard to understand why New Haven detectives
Joe Greene and Tony DiLullo thought Valentine merited a second look.

Defense attorneys are familiar with the police practice of picking up known
criminals in the vicinity of a crime based more on a hunch than on hard
facts. They call it the "bad guy" justification -- if police consider the
suspect a bad guy to begin with, they can rationalize that even if he
didn't commit the crime they are investigating, he should be locked up anyhow.

Around lunchtime on Sunday, the police paid a visit to Valentine's mother's
house in West Haven, where Valentine was enjoying his last taste of home
cooking before returning to prison that evening. His mother, Ednora
Guimares, the captain of her neighborhood block watch, was surprised to see
two detectives at her door. She ushered them in just the same.

Guimares' home is warm and cozy. It's the kind of home that smells of pot
roast, with a little incense thrown in for good measure. During a recent
interview, interrupted by her three grandchildren periodically coming into
the living room for a kind word and a hug, homework questions and errand
assignments before dinner, Guimares recalls that afternoon.

It was to be the last time she saw her son outside of prison.

"Det. Joe Greene did most of the talking," Guimares recalls. "He asked what
Daryl had had on. The clothes were sitting right there." She points to a
chair in the family's living room. "A blue jogging suit."

Guimares says she offered the detectives the clothes and was surprised they
didn't take them. Presumably they would have wanted to test them for the
traces of blood that could have been in evidence had Valentine shot three
people while wearing them earlier that morning.

"I said to them, 'If you feel my son did this, take him now. You're telling
me two boys are dead,'" Guimares says. "They said, 'No, we just want to
talk.'"

At this point, Valentine felt he had nothing to fear. "I believed I wasn't
going to be arrested," he says.

The police were under the gun on this one, however. The night of the
shooting, New Haven police were suffering from "blue flu." By law, police
can't go on strike, but white officers had called in sick to protest a
department decision to discipline a cop for killing a civilian.

At a time when New Haven's murder rate had hit record levels, this
double-slaying in a crowded, popular diner made people especially nervous,
and the pressure on cops to solve it was high. This was a shooting on the
edge of middle-class Westville, not the projects. It was a miracle that
more people weren't hurt -- and certainly future business could be.

The pressure was on Valentine, too.He received a visit from the two
detectives investigating the case and says it was obvious they were trying
to get him to confess to the crime. "Joe Greene kept telling me he had a
witness who said I did it," Valentine recalls. "They told me, 'You did it.'
I told him to go do his job. It wasn't me."

Guimares learned her son had been arrested for the double murder when she
turned on the 11 o'clock news and saw Valentine's picture flash on the
screen. She burst into tears. "I feel sorry for the boys' parents, about
the boys who got shot, but the police just made a case," she says. "Yes, my
son sold drugs, but he's not a murderer."

She had no money for an attorney, but she had heard that Ullmann was one of
the best public defenders. She told her son to ask for him.

Valentine differed from some of Ullmann's other clients in important ways.
First of all,he wanted to go to trial. When Valentine had been charged with
dealing drugs, he pled guilty. Even today, Valentine admits that, yes, he
sold drugs. But this time was different. Charged with two murders, there
would be no plea but "not guilty."

"I was ready to go to trial as soon as this happened," Valentine says.
Because of the backlog of cases facing the courts, however, it took two and
a half years for the case to reach a jury.

>From Ullmann's perspective in preparing his defense, a number of factors
suggested Valentine was not the shooter.

First is the lack of motive. If anything Valentine had a compelling reason
to stay out of trouble. "That Friday, I had two more furloughs until I went
into a halfway house," Valentine says. Unlike many other inmates, he had
the support of his family. They had stood by him. He had been working in
prison, sending money home every two weeks. His mother and his son, who was
then just 7, needed him at home.

Convinced Valentine had no reason to shoot anyone, Ullmann began to
investigate why the police arrested Valentine in the first place. In other
states, police can't make an arrest without a probable cause hearing before
a grand jury. In Connecticut, all police need to make an arrest is a
warrant signed by a prosecutor and a judge.

In the affidavit filled out by Det. Greene for the arrest of Valentine, he
outlines the following reasons for suspecting Valentine. An anonymous
caller -- who to this day has not been identified but who is described in
the affidavit as sounding like a white male -- phoned the police department
after the shooting and described a car he says he saw leaving the scene.

It was a Buick Electra with tinted windows with a license something like
245-FGH. In the warrant, Greene then notes that Adams owned a Buick
Electra, registration 245-FDG and that both Adams and Valentine admitted
being at the diner that night.

Of course, so were dozens of other people. Ullmann hoped to find someone
else willing to testify that Valentine was, in fact, in the dinerand not
outside at the time of the shooting. Between the crowds and the panic
surrounding the fight, however, none of the diner staff could say so with
any certainty. Then, says Ullmann, "a lot of those people didn't want to
talk."

One person in particular, Steven Roundtree, was there that night. He knew
Valentine and, more importantly, Ullmann believes, knew Valentine was in
the diner. "He refused to talk to us," says Ullmann. "Then he got killed."

Greene, meanwhile, was having more luck getting witnesses to cooperate.
Using his persuasive powers, he had alreadyobtained two signed statements
from women, one with a drug problem, the other with an outstanding warrant
hanging over her head, to obtain a warrant for Valentine.

"Both of these witnesses were absolutely certain that the person they saw
standing at the northeast corner of the diner and firing a handgun in the
direction of the sidewalk or the front of the diner, was in fact Daryl
Valentine," wrote Greene on the arrest affidavit. "Both of these witnesses
have signed arrest photos of Daryl Valentine and both witnesses have given
taped statement to detectives conducting this investigation."

Ullmann sent an investigator over to interview the two women again. They
told the public defenders' office a different story. They both said police
told them what to say.

"These women recanted immediately," Ullmann says. And they would do so
again, under oath, at the trial.

During the first trial, Kristina Higgins testified that on Sept. 26, 1991,
she gave a statement to the police as follows: that she was sitting in a
parked car outside the diner with two friends when she saw a man standing
near the front steps of the diner open fire. She says after the shooting
the man jumped into the passenger seat of a waiting car and sped off. She
identified Valentine as the shooter, saying she recognized him because she
had dated one of his friends. She also picked him out of a photo array.

On March 8, 1994, Higgins told Ullmann's investigator that she had lied to
police. At trial, she again recanted her initial statement recordedby the
New Haven detectives.

According to court transcripts, she said she lied because police had given
her $50, had threatened to lock her up on an outstanding arrest warrant if
she did not cooperate. She added that police had promised to "take care of"
her warrant if she told them Valentine was the shooter. She said she didn't
actually arrive at the diner until after the shooting.

At the first trial, however, prosecutor Michael A. Pepper succeeded in
making the cops the important witnesses. That, in retrospect, presents its
own problems.

The two cops in question, detectives Greene and Dilullo, have both been
sued by people who were falsely arrested. In both instances, eyewitnesses
turned out to be lying.

In 1991, for instance, Det. Greene was investigating the shooting of two
men in New Haven. Witnesses described the assailant as dark-skinned, stocky
and relatively short, maybe 5-foot-5-inches. Greene arrested Eric Ham, a
light-skinned African-American who weighed about 165 pounds but stood an
impressive 6-foot-5-inches tall.

Ham, who lived in the neighborhood where the shooting occurred, had gone
with a friend to investigate the source of the noise and police lights that
night. He was arrested and charged with murder and first-degree assault
three weeks later.

Ham, a college student in Waterbury at the time, was held in jail forthree
monthsbefore charges against him were dismissed. In 1996, a jury awarded
Ham $1.4 million -- the highest amount ever awarded in a Connecticut
wrongful arrest case -- in a false-arrest lawsuit filed against detective
Greene and Lt. Michael Sweeney.

New Haven assistant corporation counsel, Peter Schaffer, represented the
officers and the city in the Ham case. In 1996, Schaffer told the Hartford
Courant he believed the investigation was properly conducted and that the
wrongful arrest suit should never have been filed. "The fact that two
witnesses who gave statements identifying Ham as the shooter and ultimately
took them back is beyond the control of the police officers," he said.

Ham's attorney, William Palmieri doesn't see it that way. "This case was
rotten with the inference that Joe Greene manipulated the testimony of the
witnesses," says Palmieri. "In each of the cases of the two witnesses upon
whom the police had relied, those witneses had given one or two prior
statements which were consistent with the previous identifications of the
shooter as being a stocky man."

Ham, Palmieri points out, stood head and shoulders above a crowd of nearly
20 people at the scene -- all witnesses who described the man with the gun
as stocky, about 5-feet-5-inches. Palmieri says there was also evidence to
suggest police coerced testimony to pin the crime on Ham.

"A young man named Timothy Davis testified that he was brought to the New
Haven Police Department, that Joe Greene slammed his hands on the table,
told him he was going to go to prison for up to 65 years and, falsely, told
him that Eric Ham had confessed to the shooting in an attempt to get him to
identitify Ham as the shooter," adds Palmieri.

"As the case [against Ham] was subsequently dismissed and as the civil
verdict bears out, the jury did not believe the fabricated statement -- a
statement fabricated at the urging of Joe Greene."

Similar allegations of coercion were brought against Det. DiLullo, who also
worked on the Valentine case. He was named in a malicious prosecution
lawsuit filed by Anthony Golino.

Golino was arrested for the high-profile stabbing death of Penny Serra at
the Temple Street garage in New Haven in July 1973. He became a suspect
when his ex-wife called police after they had a fight and said he had
threatened to do to her what he did to Serra. After that, police began
tailing him. He was known to cops for a history of low-level crimes. But on
the eve of his trial in the Serra case, a dramatic DNA test proved he was
innocent. The prosecutor promptly dropped the charges.

Golino sued the police for $40 million in 1993, citing harassment and
wrongful arrest. On the stand, DiLullo admitted to misquoting statements
people gave him on the arrest warrant and to leaving out the fact that one
witness, the parking garage attendant, identified someone completely
different as the killer.

The jury concluded that New Haven detectives had included false statements
and omitted exculpatory information when making out the arrest warrant.
They did not, however, rule that these errors had any impact on the
judge'sdecision to sign the warrant. Because of this, the jury didn't find
for Golino in his suit against the police.

Ullmann, meanwhile, couldn't convince the judge at either the first or the
second trial judge to allow him to tell jurors about these lawsuits filed
against the two police the prosecution was presenting as unimpeachable
witnesses.

So jurors listened as two police officers testified. They heard taped
statements given to the police by witnesses identifying Valentine. Then
they heard those same witnesses recant their statements on the stand, after
the prosecutor had presented them as "hostile" witnesses. It made the two
women look less believable when they said the police tried to bribe or
coerce their earlier testimony.

"People are much too accepting of police officer testimony," says Ullmann
"Jurors don't want to believe police officers are lying."

Both Detectives Greene and DiLullo declined to comment on the record for
this story. They both, however, pointed out that two juries at two separate
trials found Valentine guilty.

The verdict against Valentine, however, was not reached easily. At the
first trial, the jury was out for five day. One of the sticking points was
an additional eyewitness who had identified somebody other than Valentine.
Byron McFadden was brought into the police station 11 days after the
shooting to look at about 100 photographs. Among them was a photograph of
Valentine, but McFadden, who knew Valentine, passed right over it. Instead,
he selected a picture of someone completely different.

McFadden presented the shooter as someone who had a beard and was very
dark-skinned -- unlike the light-skinned, clean-shaven Valentine. At the
first trial, Ullmann says, McFadden even testified that he knew Valentine,
and that Valentine was not the shooter.

Checked-by: Mike Gogulski