THE WRONG MAN

Mistaken for a Fugitive, an Innocent Hairdresser Landed in Jail

The impact stunned him, the sudden violence of it on a spring
morning. Elias Fishburne IV, on his way to a 6 a.m. workout, now
stood in his gym clothes on Route 50 in Cheverly and took measure of
the damage. Talking on his cellphone, Fishburne had nearly sideswiped
another car while changing lanes, then swerved away too hard and hit
the guardrail. Elias was unhurt, but his Beemer was mangled.

A Maryland state trooper pulled up and took Fishburne's license and
registration back to his patrol car. Fishburne called a friend who
lived nearby to come pick him up. He'd have to get the car towed,
file an insurance claim, and what about all the errands he needed to
run before flying off to Puerto Rico for the weekend?

The trooper returned. The mood suddenly tightened.

Sir, you need to put your hands up on the car.

For what? I'm on my way to the gym.

Because you're under arrest.

He felt the metal cuffs clench his wrists. Heard the officer asking
if he had been drinking or using any drugs. Felt the Breathalyzer
between his lips. The trooper began searching the BMW. Fishburne's
friend showed up, shocked to find Elias in the back of the police
car, and asked the officer what was going on. Fishburne heard, but
could not comprehend, the reply:

He's a fugitive from Atlanta, Georgia.

You have the wrong man, Fishburne remembers saying, in the patrol
car, then again at the police substation where he was booked May 5,
2005. They kept calling him by a name he'd never heard before: Jarvis
Tucker. On the warrant from Georgia, Elias Fishburne was listed as
one of several known aliases used by a career criminal named Jarvis
Tucker. Fishburne's vehement protests that there had been a mix-up
were met with blank indifference. "Someone else will deal with that,"
he remembers someone in uniform telling him.

The thin court files and interviews with various officials confirm
Fishburne's account of how an innocent man was swept through the
justice system. Fishburne's soft voice is anguished even now, a year
later, when he echoes the denial he sounded that day, and for the
days and then weeks that followed.

This is not who I am .

At the Prince George's County Jail, Fishburne remembers the booking
officer glancing at the image and description of Jarvis Tucker on his
computer, and back at him, comparing the warrant with the driver's
license of the frantic prisoner before him. The birth dates were
three years apart. Tucker was described as an armed drug dealer who
stood 5 feet 10 and weighed 190 pounds; the man in custody was two
inches shorter and at least 50 pounds lighter. The facial features
were dissimilar, too. The only trait indisputably shared was race.
The fugitive in the system and the suspect in handcuffs were both black men.

Fishburne, 38, recalls the black booking officer saying he wasn't
sure this was the right guy, and the white arresting officer
dismissing the doubt, leaving it for someone else along the way to
decide. A process had been set in motion, and with it, a chain
reaction that would leave Elias Fishburne stunned and stranded on the
side of a road he had spent a lifetime dreading.

Cutting His Dreadlocks

Only white clothes were allowed in jail, Fishburne learned. They took
his sneakers, his shirt, even his black underwear. He was given
flip-flops and a jail shirt at least three sizes too large. Any
street clothes that weren't white could signal possible gang
affiliation. Fingerprinted and photographed for his mug shot,
Fishburne tried to stay calm. This would be straightened out any
minute, when they saw that the fingerprints didn't match. They told
him to sign paperwork acknowledging that he was being booked on
charges of cocaine trafficking, receiving stolen property, and
illegal possession of a firearm. The name printed on the sheet was
Jarvis Tucker. He crossed it out and signed it Elias Fishburne.

"Then this officer sitting in the glass booth asks me if I want to
waive extradition," Fishburne says. That would mean not fighting the
warrant from Atlanta demanding that he face charges there. "I'm
asking this woman, this guard next to me, what I should do, because I
don't know. She tells me that if Atlanta has the charges, Atlanta
needs to see you to know you're not the right guy."

Fishburne remembers asking what the difference was between staying in
Prince George's or agreeing to go to Atlanta. "She said if I was
going to be extradited, they only had two weeks to pick me up, but if
I stayed here, I could be locked up for three months waiting for trial."

What no one told him, Fishburne now realizes, was that waiving
extradition would effectively freeze him in this bureaucratic error.
No one said what Department of Corrections official Jeff Logan
declares so clearly now: "Understand this: If it is not you, you do
not acquiesce to anything. You're caught in the wheels of justice and
they're spinning against you."

Fishburne sees now how naive he was to believe that the system was
somehow self-correcting, that the truth would quickly become obvious,
that he wouldn't even need an attorney. I'm a hairdresser, he
remembers trying to explain to everyone he encountered. I'm a
veteran, I have a mortgage, a business, a Web site, a clean record, a
sound reputation. "They're looking at me like, whatever."

As he was being processed, he felt a guard tug at his long
dreadlocks, and cried out in protest when he felt hanks of his hair
being snipped off to remove the tiny silver charms woven into the
twisted strands. A doll-size pair of scissors entwined in his hair
were considered a potential weapon? This particular humiliation
touched a nerve. It had taken him years of meticulous care to grow
locks like his, and now a stranger was blithely chopping away.
Fishburne landed in the day room of the county jail in a sea of men,
most of them young, most of them black. He sat with his back against
the wall, trying to draw the calming breaths he had learned in yoga
class, assuring himself this would be over any minute now.

Elias Fishburne grew up with two fears that held their grip on him
even in adulthood. One was being homeless. The other was going to
prison. "Growing up in the projects, I knew this could happen to me.
I could go to jail, I could lose everything to drugs and be
homeless," he says. "If you see those things on an everyday basis,
you know it could happen to you."

Fishburne hoped that the friend who had witnessed his arrest was
trying to get him released. With his cellphone confiscated, Fishburne
didn't have phone numbers at hand for loved ones he might call for
help. Most everybody he knew used cellphones, anyway, and receiving a
collect call from jail required a land line. It was three days before
he got a turn at the jail's pay phone. The only number he could
summon from memory belonged to his friend Jerome Wilcox. Fishburne
asked Wilcox to contact his mother and the prepaid legal service
Fishburne subscribed to. He had used the Baltimore law firm to plead
down a couple of traffic tickets and to write warning letters to
clients who bounced checks. Help was close at hand, he reminded himself now.

In Charleston, S.C., GeorgeAnna Milligan had been waiting all day
that Sunday for her oldest son to call. Elias never missed Mother's
Day. "Finally, his friend Jerome calls and tells me Elias has been
arrested," she recounts. All Wilcox knew was that there had been an
accident, Elias was okay, but he was in jail. Jail? Was someone
killed? Milligan's mind raced. She quickly put together the pieces
Elias hadn't.

She called the Prince George's Sheriff's Office, trying to track down
her son. "He doesn't have any aliases. His ID was stolen," she
explained again and again. "Why can't you just check his fingerprints
and run his background in NCIC?" Milligan knew the FBI's National
Crime Information Center was the data bank that would prove her son
was not wanted, that his fingerprints, birth date and Social Security
number didn't match those of this Jarvis Tucker. She had confidence
in this system of checks and balances, because she herself had relied
on it years before while working for the Charleston police. "I took
mug shots and did fingerprints," she recounts. "I knew what I was
talking about."

None of the Maryland authorities could or would answer her questions,
Milligan says. She left messages for the Baltimore law firm. She
tallied her savings, figuring there would be bail to pay. Then she
did the only thing left to do: "I prayed and prayed and prayed."

Fishburne's military ID had gone missing more than a decade ago, he
remembered, just before he shipped out to Desert Storm while in the
Navy. He had gone clubbing one night in Norfolk and discovered his ID
gone when he returned to base; without it, he had to be escorted to
barracks by military police. But it wasn't until he returned to port
and transferred to duty at National Naval Medical Center in Bethesda
that Fishburne applied for credit and discovered his identity had
been stolen. Thousands of dollars in debt had piled up in his name
for things he hadn't purchased -- furniture in Maryland, clothing and
cellphones in Georgia. He remembers thinking everything was fine
after his former captain cleared up the worst of it -- $4,000 in
furniture -- by writing a letter swearing that Fishburne had been at
sea when the purchase was made.

Fishburne left the Navy, trained as a cosmetologist and began working
at salons in Silver Spring. He managed to save enough to buy a small
rowhouse in the shadow of FedEx Field in Landover. It irked him to
see the drug dealers doing their business in his neighborhood,
loitering on the corner when he walked his dog. Fishburne called the
police so often to complain that he remembers the dispatcher
recognizing his voice. Nothing ever changed.

When Elias was 6, living with his single mother in Harlem, two gunmen
held a .45-caliber pistol to the boy's head while mugging GeorgeAnna
Milligan in an elevator. Even now, when Elias describes his terror,
it is not the gun he recalls, but the sight of his mother shaking and
crying. "It was the first time I'd ever seen her not in control," he
says. He had never realized that the world could slip out from under
an adult like that.

Now he sat shivering in jail, confused, angry and scared. Even though
it was May, all the bare concrete made the place feel like a walk-in freezer.

A trim, smallish man with high cheekbones and large, almond-shaped
eyes, Fishburne enjoys raspberry martinis and spa days. He makes
Easter baskets for his clients. He loves scented candles. He didn't
come out to his own mother until he was 29, but he knew it wouldn't
take long for the other inmates to figure out he was gay. He slept
sitting up, with his back to the wall. No one bothered him.

Five days after his arrest, Fishburne was awakened one morning and
taken before District Court Judge Robert W. Heffron Jr. "I'm not
pleading anything because number one, I don't have a lawyer, and
number two, I didn't do it," Fishburne remembers saying, asserting
yet again that he was not Jarvis Tucker. By then, though, it was
moot. Having waived extradition, he would have to fight the charges in Atlanta.

A slip of paper in the court file states that the arresting officer
did not perform the required NCIC computer check of the defendant
because the computer system was out of service. Nothing in the court
file indicates any further attempt was made to confirm the identity
of the man in custody. Each of at least six entities to handle
Fishburne's case -- the Maryland State Police, the state Department
of Corrections, the Prince George's County Sheriff's Office, the
state's attorney, the District Court administrator and the sheriff
issuing the warrant in Georgia -- maintained that responsibility for
confirming the prisoner's identity fell to someone else.

"We trust that's already taken care of," said Cpl. Mario Ellis,
spokesman for the Prince George's Sheriff's Office, which endorsed
the warrant stating the fugitive Jarvis Tucker was in custody.

"The onus wouldn't be on the Department of Corrections," countered
Logan, adding, "The judge could have done something."

Requests to court administrators seeking comment from Judge Heffron
were denied.

Fishburne said no one told him that the required criminal database
check had not been done, and after his hearing, he returned to jail
believing, still, that someone would compare fingerprints any moment
now and correct this horrible mistake. He had been behind bars for
five days already.

"Now I was no longer Elias Fishburne. I was no longer even Jarvis
Tucker. I was cell number whatever. And I didn't have a voice."

* * * 'So Many Young Kids'

Jail was the most segregated society Fishburne had ever known. "P.G.
County Jail has so many young kids. They're supposed to be in high
school, and they're sitting in jail. Most of the guys in there are 18
to 24. When I was there, there were about 200 inmates. Four
Hispanics, three white guys, one Asian and the rest black." He
reduced them to swift stereotypes: "Chinese guy, I look at him and
think computer fraud. The white guys: hicks, probably caught with too
much beer in their system, drunk driving. Hispanic: gang-related. The
black guys were from every walk of life, married, divorced, murder to
bad checks. The young ones were mostly there for crack." At mealtime,
Fishburne noticed that the Muslims sat together, the Hispanics had
their table, the whites and the Asian clustered with the old black men.

Since Jarvis Tucker was a fugitive, bail was not an option for the
innocent man whose life had been upended. GeorgeAnna Milligan said
she learned that the supposedly prepaid legal service would require a
$2,500 retainer before a lawyer would even meet with Elias in jail,
and then another lawyer would have to be hired in Atlanta to fight
the charges there. Milligan says she kept calling Maryland
authorities, insisting they had the wrong man; Elias's friends did
the same, both on the phone and when they visited him. "He'll have
his day in court, was the response we were getting," recalls Jerome Wilcox.

Silent and wary at first, Fishburne said he hadn't wanted to engage
the men surrounding him, the young brothers who held informal
seminars over chow about how to cut cocaine, how to ditch a drug
stash when police gave chase, how to jack a car with an alarm on it,
how to make a shank out of chicken bones, how to deodorize the toilet
in your cell with soap shavings and an illicit lighter.

"I'm not supposed to be here," Fishburne would tell fellow inmates.
"I wore it like a badge," he says now. "The inmates were the only
ones who listened." When he sensed any tension rising in the crowded
cellblocks, Fishburne retreated to the bathroom to brush his teeth.
"It was the only place to get some peace," he remembers. Once, he
approached the guards' desk to say he couldn't find his toothbrush.
The response was quick and pitiless.

"You need to step away from the desk," he remembers being ordered.
The guard was black. Fishburne tried to explain he just wanted a
toothbrush. The order was bellowed again. A white guard quietly told
Fishburne he'd see what he could do, Fishburne recalled, and later
brought a toothbrush to his cell.

"I hate to say it, but I was treated more kindly by the two Caucasian
guards than by any of the black guards," Fishburne says. Their
disdain was palpable, as if being black were somehow more shameful.
"It was like I was a disgrace," Fishburne says.

One evening, Fishburne was watching basketball on TV in the day room.
The inmate sitting next to him admired the braids one of the players
was sporting. "Man, I wish I could have braids like that," Fishburne
remembers the inmate saying wistfully. "Used to be a cat in here
could braid, but he got out."

"I can braid," Fishburne offered.

He did the inmate's hair in exchange for three envelopes of Oodles of
Noodles -- the soup sold in the commissary was the most popular form
of jailhouse currency. Soon other inmates were admiring Fishburne's
work and making appointments, too. Fishburne set up shop in the
doorless bathroom off the common area, careful to position himself so
the guards at the desk would have a clear view of him. He felt safer that way.

Braiding hair earned Fishburne enough Oodles of Noodles to trade for
warmer clothes. But his skills also reaped something even more
valuable in jailhouse society: respect. The constant stream of
inmates wanting Fishburne to do their hair filled the empty hours and
took his mind off his own troubles as he listened to the young
brothers pour out theirs. He was surprised to find himself slipping
so easily into the familiar role he had played with his clients on
the outside, the stylist-cum-confidante, except now he was consoling
drug dealers instead of divorcees.

One young dealer whose hair Fishburne was twisting into dreadlocks
confided that his girlfriend was pregnant with their third child and
that he wanted to be out just to see his new son being born.

"You going to marry her, man?" Fishburne remembers asking. The reply
took him aback:

"No, she'd never marry me. She's so pretty, man. She wouldn't want
someone like me."

"She does want you," Fishburne insisted. "She's carrying your child.
This girl could've easily had an abortion. She's chosen you already;
why are you feeling so unworthy, dude?" He urged the inmate to ask
the girlfriend how she felt, to lay his own feelings bare.

"A lot of these boys in there are sacrificing their lives because no
one tells them they have self-worth," Fishburne says. "Society's not
breaking them down. They do it themselves."

He remembers the 19-year-old who had been driving his cousin around
and was arrested as an accomplice when police pulled over the car and
discovered drugs on the cousin. The driver was offered immunity if he
testified. Waiting for his hearing, the jailed teen bragged that he
would serve the five-year term hanging over his head rather than turn
against his cousin. Braiding in his bathroom salon, Fishburne
pressured the teen to cooperate, telling him he had to save himself.

"Five years is a long time," he remembers admonishing. "and if you're
willing to do five years now for some BS you didn't do, you'll just
get out and be right back doing even more time for your own
[expletive]." Fishburne had been in jail for nearly three weeks, and
his initial wariness was dissolving. The empathy that replaced it
surprised him.

He is still amazed by the emotional connections among men whose
strongest bond is a life on hold, a future unresolved. "Black men
don't have conversations like that on the outside," Fishburne
reflects now. "We don't talk to each other. The black men in jail
share ideas and thoughts and feelings with each other. It was so
surprising to me, as a black man, to see another brother sit and
talk. You tell a little about your life, they tell a little of
theirs. They have conversations about sports, about religion -- not
arguing or fussing or fighting.

"If they bumped into each other, they'd say, 'Excuse me.' Put you in
a fly outfit, put you in a club and the same thing happens, they'd be
willing to rip each other's head off. I don't get it."

Nineteen days after Fishburne's false arrest, the prison bus arrived
to take him to Atlanta, where Fulton County wanted Jarvis Tucker to
stand trial on the charges against him.

Shackled to another prisoner on the bus, Fishburne learned to
choreograph every bite of food, every trip to the bathroom with the
stranger who had killed someone and was now chained to him. The bus
zigzagged slowly around the Northeast, picking up and dropping off
prisoners. The air on the bus was hot and stale. The men ate fast
food three times a day and slept sitting up save for the occasional
overnight at another jail. The video monitor on the bus showed prison
movies. "Bad ones, all that Jean-Claude Van Damme stuff," Fishburne remembers.

In Florida's punishing heat, the bus broke down, and there was no air
conditioning. Fishburne had suffered from asthma since childhood. Now
he could feel his lungs grow heavy and sodden, fighting for each
breath. The prisoner chained to him alerted the driver. Fishburne
recalls his desperation as the guard hovered over him, asking him if
he was having trouble breathing. By then, he was wheezing too hard to
speak. I'm going to die on this bus, Fishburne thought. Panic made it
worse. At least 20 minutes passed, he believes, before an ambulance
showed up and rushed him to the hospital. Medication quickly relieved
his symptoms. He was given an inhaler and put back on the bus to
Georgia. He remembers the driver complaining loudly about the few
hours Fishburne had cost them.

'It Doesn't Add Up'

"I'm not Jarvis Tucker." Elias Fishburne entered the Fulton County
Jail with the same declaration that had been ignored in Prince
George's County. Nearly a full month had passed since the wrong man
was arrested on Route 50. The deputies in Atlanta mocked Fishburne's
entreaties. Every criminal facing jail claimed to be the wrong man.

"I was so upset," Fishburne recalled. "I was getting all teary-eyed
and cotton-mouthed, and the cop says, 'There he goes with his acting
again.' " Fishburne appealed to the woman taking his fingerprints.
The prints of Jarvis Tucker were on her computer screen with his warrant data.

"Can't you see they're not the same?" Fishburne implored.

"It doesn't add up," he remembers her agreeing as she processed him
anyway. "Someone will talk to you about it."

Fishburne's mother, friends, pastor and frantic clients back in
Maryland had pooled money and had an attorney waiting to hear from
him in Atlanta. But his mortgage was unpaid, and clients unable to
find him were no doubt finding new hairdressers. Just a month in the
system had already caused a stable life to wobble. Fishburne wondered
if he would still have a home when he got out. Or a job.

Fishburne figured God was testing him, and he jokes bitterly now
about how he wishes that test could have been in Palm Springs, but it
was in Atlanta, where he remembers how a black female guard stood
outside the cell at meal time and called inmates filthy names. When
Fishburne didn't respond, she zeroed in. "You going to eat or what,
nigger?" she demanded. The racial slur was the most common form of
address, Fishburne said; that black guards were using it to address
black inmates only made the humiliation worse. The transformation was
complete: He was not Elias Fishburne, not Jarvis Tucker, not even a
case number. Not a homeowner, not a hairdresser, not a good citizen
living a worthy life. Nigger . That's who he was now.

So stripped was his identity, so thorough the loss of self, that he
didn't even recognize his own name -- his real name -- when a guard
shouted it out in the day room on his third day in the Atlanta jail.
He called again and again, then stalked off when no one responded.
Another inmate turned to Elias.

"Isn't that you, man? Didn't you hear him? He kept calling: Elias
Fishburne, Elias Fishburne, Elias Fishburne."

The background check Fulton County authorities had performed took 36
hours to determine that Prince George's had sent them the wrong man.
Fishburne was handed the gym clothes he had been wearing the morning
he crashed. He was issued a check for the funds his friends and
mother had deposited in his commissary account. He was freed. No
apologies were offered, he says, no ticket home provided. He stood
outside the jail with no cash, no transportation, no explanation. He
looked at the commissary refund. The check was for $80. It was made
out to Jarvis Tucker.

He called a friend he knew in Atlanta to come get him. His friends
back home paid for his airfare and let the attorney they had lined up
in Georgia know that he wouldn't be needed.

'I Found Myself Crying'

A year has gone by, and Elias Fishburne still struggles to reclaim
his life. The hospital in Florida just sent him a bill for his visit
to the emergency room there. His BMW was totaled but the insurance
won't pay him enough for a decent car, so he relies on Metro and
friends for rides now. He had to pay his own way back to Atlanta to
appear in person and get the fingerprint card and sworn statement of
his clean record from the Georgia Bureau of Investigation. He was
charged $27 for the fingerprints. "You'd think," Fishburne says
wryly, "that that would be complimentary." He carries this proof of
his innocence in his day planner at all times.

Fishburne was listening to a client's woes one day while doing her
hair. Her son was heading for trouble, and she told Elias that she
wished the police would just arrest him. Don't let it happen,
Fishburne urged the woman.

"I found myself crying in front of her," he recalls. "It was the
first time I cried about it. I realized I wasn't giving her advice; I
was giving her a warning. At that point, I realized I had been
through something."

The conversations he has among black men are superficial again,
banter and bluff.

Search the criminal court records in Prince George's County, and it
is not Jarvis Tucker's name that produces a file, but Elias
Fishburne's. The papers in the sunny yellow folder show that the
state's attorney did not prosecute. They don't disclose that a
mistake was made. A brochure from the District Court of Maryland
explains that if Fishburne wants to expunge the record he shouldn't
have, he will first have to sign a waiver freeing the state from any
liability and forfeiting any right to sue. He hasn't decided yet
whether he will sue.

Fishburne sums it up in a deadened voice. "It is what it is," he says.

Fishburne opened his own small salon not long ago, and says he can't
afford the time or the emotional energy to fight this just now, to
make the system erase all traces of Elias Fishburne, suspected criminal.

He wonders if the only way to live without fear of this happening
again, to reclaim his identity, is to erase Elias Fishburne
altogether. "I think about changing my name," he says.

He has stopped calling the police on the drug dealers in his
neighborhood. Two of his old cellmates have called him since getting
out. One wanted his hair braided but changed his mind when Elias told
him it costs $60 on the outside; the other left messages Elias didn't return.

In his little front yard, Fishburne plants bright flowers. His BMW
still sits there in his driveway because he doesn't have the money to
fix it or the heart to junk it. He has no choice but to face it each
day, and ponder the wreckage.