Justice denied, David McCallum III

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202591051160&Inmate_Cannot_Clear_His_Name_Without_Evidence_of_Guilty_Party&slreturn=20130207171603

A conviction is just that: someone has been convicted (by judge or jury) of a crime in a court of law. A conviction does not equal unquestionable truth, though the public is conditioned to see it that way. A ‘convicted murderer’ is a shade different than a murderer. That shading is why we have appeals and innocence projects. While courts are generally right, they sometimes get it wrong.

A wrongful conviction plays out over great stretches of time. It is no simple film script where law enforcement officials and judges suddenly see the light and–boom–the prisoner is released into the waiting arms of his or her family. Neither is righting a wrongful conviction about individual bravery and heroics. The key to justice is patience and perseverance. Since some police, prosecutors and judges will do everything in their power to suppress the truth, the weight of exoneration is borne entirely by the defendant and his support group. The prisoner, generally poor or uneducated, depends upon people who will work for nothing and expend great amounts of time and personal resources on his or her behalf.

Let me be clear: in the United States, some 2.3 million human beings are trapped inside prisons, institutes of lower learning, and at least half of them are incarcerated for drug offenses. They work jobs, often necessary jobs like manufacturing army helmets or cleaning highways and city streets, for slave wages. They are also, quite literally, a captive audience, a marketplace for electronic goods, clothing, decent food, books and other products that their families pay for to make the prisoner’s life half bearable. Hence, this massive prison population serves an economic purpose. The racial disparities–prison populations are 70% African American or Hispanic– along with ultra long sentences, keep the population of the underclasses under some control.

What these numbers mean in terms of wrongful convictions is sobering to say the least. Bar associations have estimated that anywhere from 1% to 10% of all convictions are in error. Innocence International, agreeing that convictions are generally reliable, sides with the lower figure, but then we have to add those innocent persons who plead guilty to avoid a serious charge and a draconian sentence. If the lower estimate is correct, then 30,000 prisoners in the U.S.A. are incarcerated for no reason at all. With some sixty or so innocence projects, the chances of any prisoner getting outside assistance are remote. Their lives are ongoing Kafkaesque nightmares and consist of endless rounds of letter writing campaigns. Each of the two cases that I will be highlighting in this blog have had more than three innocence projects working to free the innocent person. The stories of David McCallum of Brooklyn and Atif Rafay and Sebastian Burns of West Vancouver (imprisoned in Washington State) contain all the elements of a mystery; the problem with real life mystery plots is that they contain a number of variables that are inconceivable by any mystery writer. McCallum has been in prison for twenty-seven years (since the age of sixteen) and the involvement of innocence projects is now going on eight years. Burns and Rafay have been incarcerated since 1994 although they were not convicted until 2004; outside support for their case began in earnest in 2008.

 

THE CASE OF DAVID MCCALLUM III

David McCallum and his late friend, Willie Stuckey, both African Americans, were sixteen years old when, on October 27th, 1985, they were arrested and interrogated for the murder of twenty year old Nathan Blenner of Queens on October 20th. If one were to try to unravel the mystery behind their arrest and interrogation, he would have to, as we did, go through all the police reports and trial transcripts relating to this case. But the reader might well ask: Why bother? They confessed to committing the crime. Why would anyone confess to something they have not done?

What about the other evidence? Why not go through the forensic evidence to see if it corroborates with the confessions? Strangely enough, this case has no physical evidence whatsoever that either teenager had anything to do with the crime. No eyewitness evidence even places them in Queens. The most important question, then, becomes not why they were convicted (we know that’s because of the confession), but why were they even arrested?

The year 1985 was close to the middle of an unprecedented crime wave in New York City. The police departments and District Attorney’s offices were overwhelmed to the point that basic rights, especially in the African American communities, were, to state it generously, sometimes disregarded.(They still are if you consider Mayor Bloomberg’s ‘stop and frisk’ policy.) McCallum and Stuckey were never accorded the presumption of innocence. Specifically, they were arrested on hearsay evidence, the hearsay provided by the main suspect in the case. Police reports indicate that after Blenner’s murder in Aberdeen Park in Brooklyn, the place where the victim was taken after his car was stolen with him inside, two men were arrested in Queens. These two Brooklyn men, Terrence Heyward and Herman Mumford, both in their 20′s and both identified as having been in Blenner’s neighborhood (Ozone Park) right before the crime took place, were taken into custody for having participated in eight carjackings in Queens during the previous forty-eight hour period. We have always thought that the Blenner carjacking was the ninth in the series. What made this crime different from the other carjackings was that it led to a murder. Our second question, then, was why Heyward and Mumford were released and McCallum and Stuckey arrested when there was sufficient reason to believe that Heyward and Mumford mifght have been the killers? A related question is how Heyward and Mumford could have gotten away with eight carjackings?  Neither question is answered by police reports.

Two men answering the descriptions of Heyward and Mumford, the former man very thin and close to six feet tall, while the latter was five feet four at the most, and one with braided hair, accosted a woman named Cathy Hank right before the Blenner carjacking. McCallum and Stuckey were 16 years old, five feet five and neither had braided hair. She was washing her own car, a red Buick Regal, one of the men told her it was a ‘nice car’, and they both left the scene. Right around the corner was the Blenner house with the family car, a black Buick Regal, and Nathan, age twenty, about to get inside. He was accosted and taken away and left in the rear of Aberdeen Park with a bullet in the back of his head.

David McCallum was born in Dillon, South Carolina, and found himself, at the age of 14, in the tough Bushwick section of Brooklyn to which the family had moved. McCallum, known at the time as Supreme, and a friend, known as Unique, were arrested and convicted for holding up an old woman on the street for her money. A toy gun was used in the commission of the crime, a fact that made the charge even more serious. He was on probation for this crime at the time of his arrest for Blenner’s murder. He was, as he freely admits, a young thug in the process of becoming a criminal. His home life was characterized by his father’s physical abuse against his mother. In his desire to escape from his emotional pain and helplessness, David spent a lot of time on the street. This background would not excuse the murder of an innocent man, but does help to explain why David was a convenient suspect for a murder he did not commit.  The problem here is that the Brooklyn police already had two credible suspects delivered to them by the Queens police.

When trying to analyze a case like this, you have to consider who stands to win by a particular conviction. Convictions are the fuel and grease of the justice system. Those who work for the state as police and prosecutors, those who inhabit the offices of the various district attorneys, have access to promotion. Promotions and higher salaries are contingent upon convictions, just as defense attorneys earn their money and reputations by winning in court. Winning is what it’s all about. It is natural to want success, of course, and to be good at what you do. For some officers of the court, the need to win is far more important than a search for truth. A police officer’s desire to solve a crime quickly can sometimes be greater than taking the time to find the real culprit. In these exceptional cases, the perpetrators of wrongful convictions are said to be suffering from tunnel vision (not that they are the ones who really suffer).

However, in the McCallum case, we believe that the conviction may not have been the result of tunnel vision or even ambition, but of a systematic attempt to avoid charging Heyward and Mumford.  Rather than being the result of a faulty investigation, the facts suggest the probability that McCallum and Stuckey were arrested because the police needed two other blacks to charge with the murder. It is remarkably simple to get a pair of sixteen year old kids to falsely confess to a crime, especially when one is used against the other. Detective Joseph Butta of Brooklyn, who was assigned to this case (partly because the murder had occurred in a Brooklyn park), questioned Heyward and Mumford in the presence of a Queens policeman. Reading the Queens policeman’s notes, he was fairly certain that this pair of carjacking thugs had something to do with the murder of Nathan Blenner. He kept referring to the kerosene can used to burn Blenner’s car that originated in the hardware store where Heyward was employed. Butta instead appeared to believe Heyward when he said that Stuckey had given a gun ‘with a body on it’, presumably the murder weapon, to a young man named James Johnson, otherwise known as Jessie James. Johnson became a police informant after he was arrested for shooting up a grocery store that he was attempting to rob. Johnson’s crime was serious enough to have landed him in prison for ten to fifteen years. He was forced to testify against Stuckey and McCallum or face prosecution and almost certain conviction. Why did Butta believe Heyward and Johnson since there was no evidence, nor has there ever been any evidence that David and Willie had anything to do with the crime.

Blenner’s auto was burned and left in the rear of a warehouse two days after he was killed. The kerosene can used to torch the car had been purchased at Pop’s Hardware Store, run by a man named Connie Williams (Pops). Heyward worked for Pops, and, according to the police record of his interview with Butta, engaged in ongoing anal sex with Pops for thirty-five dollars per session. The very fact that Heyward had access to these kerosene cans should have set off alarms, but the Brooklyn police may have had very strong reasons for not wanting to arrest Terrence Heyward in the first place.


Meanwhile, James Johnson must have had qualms about testifying against two innocent teenagers, especially since others in the neighborhood would know that he had snitched. When he was questioned by a private investigator (Anthony Cordero) just before the Stuckey/McCallum trial, he told him that Heyward was driving Blenner’s car. He also said that Heyward had snatched a chain that morning on the subway from Brooklyn to Queens. Here you have one of the state’s key witnesses, the young man who falsely told the police that Willie Stuckey had a gun, saying that the chief suspect was driving the car in which the victim was kidnapped and driven to his execution. Of equal importance is the detail about the snatching of the chain. Willie’s Stuckey’s full confession, appearing in Butta’s notes, contains two startling details: 1) Stuckey said he saw a woman washing a red car and had a verbal exchange with her and 2) Stuckey said that David McCallum snatched a chain on the subway to Queens.

The jury had to have thought that this ‘confession’ verified Stuckey’s, and thereby McCallum’s, guilt. However, Cathy Hank, the woman washing the car, did not describe McCallum and Stuckey as the men she saw but her description fit Heyward and Mumford. David’s incompetent lawyer, who was under investigation for lying to and stealing from clients (and subsequently convicted) at the time of the trial, never brought Hank into the courtroom as a witness and, of course, neither did the prosecutor. The question then is how did these two details get into Stuckey’s statement if he was in neither place?  Steve Drizin at the Bluhm Legal Clinic (Northwestern University), one of McCallum’s supporters, uses the term ‘fed fact’ to elucidate this phenomenon. An unscrupulous or severely deluded police detective can plant details into a suspect’s confession if the suspect’s concerns about a conviction are minimized. Hence both Willie and David ‘confessed’ because each thought that the other was going to prison for the murder. Detective Butta must also have told Stuckey and McCallum that they needed specific details in their confessions to make them believable.  In a sense, they thought they were in a competition to become a witness as opposed to a murderer. So Butta supplied the details from what he had already learned about the events surrounding the crime. Either he thought that he had the real culprits and wanted to solidify a case with no evidence or he needed these two boys to substitute for the real culprits. McCallum and Stuckey, during their trial, both claimed that Butta had slapped them and effectively intimidated them. McCallum also claimed that Butta held up a chair and threatened to hit him over the head if he didn’t tell him what he wanted to hear. Under duress and handcuffed with no recording of the interrogation, the two boys swallowed the fed facts. They confessed on video because each thought that they would be going home.

When Cathy Hank was mentioned by Stuckey’s lawyer during the trial, the prosecutor, Eric Bjorneby, tried to make the jury think that she saw two different people at least two hours prior to the crime. Hence her description of Heyward and Mumford would take on less importance. But Cathy Hank said that the car incident took place at 2 o’clock (the carjacking took place around 2:30) and not at 12. Since even the prosecutor accepted the fact that Hank did not see Stuckey and McCallum, how can Stuckey’s statement contain a meeting with Cathy Hank? Once again, the detail from Stuckey’s confession appears to be a ‘fed fact’, fed by the police detective to the innocent suspect in order to make the confession seem real.

For argument’s sake, let us grant that Butta thought that McCallum and Stuckey were the murderers. He must have thought, as well, that the Queens police were mistaken in their belief that Heyward and Mumford were the prime suspects. Does this explain, without any further recorded questioning, why Butta would believe Heyward about Willie and David? Was Butta just lazy and unthinking?

The relationship Butta had with Heyward may never be fully uncovered. In 2011, when Heyward was in prison in Walkill, New York, for an unrelated crime, he was interviewed about McCallum by an investigator in the DA’s office and refused to speak beyond the information he gave in 1985. We think that Butta may have known Heyward; we know that Heyward was part of a car theft ring operating out of Pop’s Hardware Store. If Butta deliberately set up McCallum and Stuckey and forced their confessions, then perhaps some police in Brooklyn may have been profiting from this car theft ring. The murder of Nathan Blenner was something that no one expected, but we believe that the police would not take Heyward into custody and have him stand trial if his conviction were a danger to them, in other words, if he had information that could damage their reputations. In every single identification around the carjackings, the descriptions were consistent with Heyward and Mumford. None of the eight previous carjackings in that 48 hour period resulted in an individual being harmed or taken with the vehicle. For some reason, Nathan was. After Blenner’s murder, the carjackings ceased for four days. On Thursday, another Buick Regal was taken; it was red. It was stolen from Cathy Hank’s driveway. Had the thieves returned to finish the job? How is it that two men were able to commit eight carjackings in a 48 hour period and not be the main suspects in the Blenner murder? How were they able to operate in the neighborhood with such impunity?  The above facts were taken from police records but none of them were dealt with at the trial; had they been, the confessions of McCallum and Stuckey would have had no credibility. 

David McCallum’s continued incarceration and suffering is like all the suffering borne by the innocent and the wrongly convicted. It is suffering without reason, suffering at the whim of someone or something over which a person has no control. David cannot show remorse since he hasn’t committed any crime so he is trapped in Purgatory or, really, living Hell. The reason that David is still in prison, despite having been convicted in 1986, is that parole is routinely denied to people who don’t take responsibility for their crimes. Since parole boards cannot rule on guilt or innocence, the wrongly convicted man is left in an excruciating Catch-22 situation: Refuse to acknowledge the crime and you cannot be released. Apologize for a crime you didn’t do and be seen as a liar for having held out all these years. Innocence does the prisoner no good at all; a real murderer or rapist would leave prison before he does. But, then, what kind of system would keep a sixteen year old in prison for 27 years? Not a very good system, that is for sure; a system rife with cruelty, dishonesty, and a brazen disregard for human decency.  Would any of them allow what happened to David McCallum happen to one of their own children?

The latest parole hearing for McCallum (April 24, 2013) is a continuation of the injustices this man has faced from 1985. The State of New York convicted David of kidnapping, armed robbery, and murder. The State of New York then proceeded to kidnap, forcibly confine, and rob David McCallum and, in addition, to kill Willie Stuckey. Of course they want to avoid these charges. The crime that McCallum did not commit was actually enacted by the state. The latest parole hearing was an exercise in denial.  The decision that came down was made essentially by the same individual who has sat on every one of the hearings:

4 thoughts on “Justice denied, David McCallum III

  1. This shows what Mumia Abu Jamal’s defense team has long said…THERE IS NO JUSTICE IN AMERICA, especially if the defendant is of color: African American.
    Go to workers.org and let folks know about this case. GET THE WORD out.
    Thanks for teaching us.
    We got Mumia off deathrow and can get David Mc Callum out of this purgatory!

      • That’s wonderful news (finally!). Is there anywhere to keep up on the latest in this case? It is one that has deeply touched my heart thanks to the “David & Me” documentary.

        • Hi Jules,
          There’s a Facebook presence (below) and a date for the hearing by the Conviction Review Unit: July 9th. This new development was brought about by a coincidence of events: Rubin Carter’s death, the release of the film, the defeat of the former Brooklyn DA being the most important. Thank you for your interest and your honesty and keep looking at this website along with the Facebook page.
          Ken
          https://www.facebook.com/davidandmemovie

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