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Case in Point

The Case of the Do-Nothing Judge

Suppose a judge decides not to decide. For five years.

For the past 45 years Wilbert Jones has sworn to anyone who would hear him that he did not kidnap and rape a woman in Baton Rouge, Louisiana, in 1971, crimes for which he is serving a life sentence. But only in the past five years or so have his attorneys and investigators been able to find compelling evidence that might support his claim of innocence. And it has been more than five years, from July 29, 2011 until today, that a Louisiana “commissioner,” acting as a judge, has had the case and done nothing to either reject or embrace it.

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How long is a reasonable time for a judge to delay issuing an order with a man’s liberty on the line? And what leverage does a defendant like Jones have to push into action an unelected, essentially unaccountable judicial commissioner, appointed to handle the case by the chief judge in a Louisiana district? After all, Jones cannot appeal to a traditional judge an order that has not yet been issued. And the longer his commissioner fails to act the less likely Jones will ever get to what his lawyers say is the heart of the problem.

The passage of time always has been a part of the story of this crime and conviction. The rape occurred on October 2, 1971. The victim (identified in court proceedings only as A.H.) was a nurse at a local hospital who was attacked as she parked her car to begin her shift. After she reported the rape, she was shown three police lineups over a six-week period (none of which included Jones) and identified no one. Then, three months after the crime, police arrested a 16-year-old named Emmett Hills for another rape and Hills, looking to ingratiate himself with prosecutors, told officials that Jones was his “partner” in the rape of A.H. The victim then viewed another police lineup and identified Jones, who had been arrested based on Hill’s incriminating statement.

We now know how inaccurate eyewitness identification can be, especially under the procedures in use decades ago. The record of the case shows that A.H. was nowhere near certain that Jones was her rapist when she identified him. She was so uncertain, in fact, that she called the police hours after she first made the identification to let them know there was a “small possibility” that Jones was not her rapist because his “voice was different” and “because he looked a little bit taller the night of the rape.” Jones is 5’3.” A.H. had described her rapist as 5’8” or 5’7”. She also had described a gap between his teeth.

The Louisiana State Police crime lab found DNA evidence on A.H.’s dress, slip, and pantyhouse but did not test this evidence — indeed, could not test that evidence the way we can test it today. But even today we cannot test any of that evidence because it is gone, missing from the clerk’s office without any explanation, even though the envelope that contained it is still there. Louisiana has never explained what happened to that evidence even though it might have either exonerated or definitively incriminated Jones.

Jones never confessed to the crime and there was no physical evidence linking him to it. He was tried in 1973 and quickly convicted based solely on A.H’s identification and Hills’ statements. That conviction was just as quickly overturned because the prosecutors blatantly interjected race into the case (Jones is black and so was the victim in the case — she testified that she told her assailant so before he attacked her but that he did not believe her because she was light-skinned). So Jones was tried again, in 1974, and again quickly found guilty and sentenced to life in prison.

What neither of Jones’ juries knew, what neither were told by police or prosecutors, was that 27 days after the kidnapping and rape of A.H. another man, Arnold Ray O’Connor, evidently raped and kidnapped a woman from the parking lot of another hospital in Baton Rouge, one just a few miles from the hospital where A.H. had been attacked. O’Connor height and physical appearance matched the description A.H. had given the police in her case far more closely than Jones did — right down to the gap between the teeth. O’Connor’s modus operandi even mirrored the victim’s account of her ordeal.

O’Connor was in custody by the time Jones was re-tried in 1974 yet no police officer evidently thought to see if O’Connor’s fingerprints matched those taken from A.H.’s car. Nor did police or prosecutors share with Jones’ attorneys during either trial what officials knew about O’Connor, the rape he allegedly had committed, or its similarities to the crime for which Jones was charged and then convicted. It’s hard to describe a more obvious violation of Brady v. Maryland, which requires prosecutors and police to turn over to a defendant “exculpatory” information in their possession.

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In fact, there is evidence in the record of the case that shows that police and prosecutors in the Jones case went even further. Not only did they fail to share what they knew with Jones’ attorneys, these officials went to extraordinary lengths to hide O’Connor himself within the justice system to ensure his existence would not be discovered by Jones’s lawyer. For example, instead of charging O’Connor with rape in that case where there was overwhelming evidence of his guilt, prosecutors instead tried him only on an armed robbery charge, leaving even the trial judge befuddled.

This information about how local authorities protected O’Connor at Jones’ expense came to light only in the past few years thanks to the dogged work of a defense investigator with the Innocence Project New Orleans, William Aquino, who spent two years digging through old files and records to discover the extent of the apparent misconduct.

A.H. is dead now. O’Connor is still alive today, living locally, but evidently not talking (to defense attorneys, anyway. They tell me they asked local officials to investigate O’Connor’s potential role in this case but were denied). And no one in Baton Rouge — not present-day police or prosecutors nor their predecessors who handled the case in the early 1970s — has stepped forward to publicly explain why so much effort was made to protect one alleged rapist (O’Connor) at the expense of a man (Jones) whose victim only half-heartedly identified him. Nor has anyone in East Baton Rouge come forward to take responsibility for the chaotic state of the case files and evidence that could have exonerated (or incriminated) Jones today. The commissioner’s office did not respond to a request for comment. We attempted to reach prosecutors but were unsuccessful; no one answered the telephone Monday at the East Baton Rouge district attorney’s office, possibly because of severe local flooding.

Reading Aquino’s affidavit in the case is like reading the script of a bad detective movie, with local officials contorting themselves in an effort to justify their refusal to provide Jones’ team with the information they seek or to answer substantive questions about how the case was handled in 1974. When Aquino sought microfilm records from 1971, for example, the document manager at the East Baton Rouge Coroner’s Office reportedly first told him that she would not look for the records, then told him that the records did not exist prior to 1972 and then told him she would search the 1972 records. When a new coroner was elected in 2012, Aquino was told the coroner’s office had no microfilm machine to review the records and no money to buy one.

For their part, parish lawyers representing the state have not bothered to respond to Jones’ new claims on their merits. Nor evidently have they shown any interest in investigating O’Connor himself even though they have been asked to do so by Jones’ attorneys. In a five-page “answer” filed in May 2015, the last significant document filed in the case, they argue instead that Jones’ claims cannot be heard because they are untimely — untimely when filed in 2010 and untimely today — because state courts already have heard “multiple, successive” requests for relief by Jones and his attorneys through the years. It’s true. Jones has filed many new motions and briefs, every one of which has been rejected by the Louisiana courts over the decades. But even motions that judges consider “untimely” are supposed to be resolved in a “timely” fashion by judges.

Jones may be guilty and O’Connor innocent for all anyone knows. But even prosecutors in their last filing made a point of acknowledging that East Baton Rouge Judicial Commissioner Quintilis Lawrence has not issued a ruling since this issue was first brought before him. Jones’ lawyers have not yet made an issue of the delay itself — have not said that Commissioner Lawrence himself is depriving Jones of his legal rights by refusing to rule on his case. But the decision, whenever it comes, will be the first step in a process that could wend its way back up the Louisiana court system over the next few years. So long as O’Connor is alive he’s a potential witness to help solve a mystery that is almost half a century old. Once he dies Jones will be doomed, whether he’s guilty of rape or not.

Supported by the Louis Lowenstein Award for Criminal Justice Commentary.