New York Times
July 19, 2005
By KATE ZERNIKE
And the man convicted of the killing, Larry Griffin, was executed 10 years ago.
Yet the city's top prosecutor has decided to re-investigate the murder as if it just happened, out of new concerns that the wrong man may have been put to death for the crime.
Prompted by questions raised in a report by the NAACP Legal Defense and Educational Fund, the prosecutor, Jennifer Joyce, hopes to decide once and for all whether Mr. Griffin was guilty or innocent - though she acknowledges that 25 years later it may be hard to do more than show the flaws in the earlier prosecution.
Still, should Ms. Joyce, the
Though dozens of people have been exonerated while on death row - from 30 to 75 in the last two decades, depending on which side of the debate is talking - proving Mr. Griffin's innocence would hand death penalty opponents the example that they have lacked in arguing for the abolition of capital punishment.
Already, Ms. Joyce's decision last week to investigate has prompted newspaper editorials to suggest that the case could be cause for a moratorium on the death penalty. Even some death penalty supporters say that her willingness to officially re-open the investigation is a remarkable, and perhaps unprecedented, development in the debate.
"If they prove that he was innocent, that would be the gold
standard," said Joshua Marquis, the prosecutor in
Still, Mr. Marquis said, "innocence is very different than saying this guy maybe didn't do it."
And it is hard to sort out an absolute truth 25 years later.
Unlike many cases that have resulted in exonerations, this case has no DNA evidence. The man whose testimony is now being challenged died last year. Other witnesses have changed their stories; memories are hazy. And like the debate about the death penalty itself, beliefs about what really happened here that June afternoon in 1980 are colored by race.
The prosecutor has seen three exonerations since taking office in 2001.
"Every prosecutor conceptually has the notion that someone innocent can be convicted," Ms. Joyce said. "I've seen it firsthand."
Her decision to revisit the
According to the report and interviews, Mr. Moss's siblings had warned him to get out of town in the summer of 1980; people said he was a target because he was believed to have killed Dennis Griffin, a reputed drug dealer and Larry Griffin's older brother.
On June 26, Mr. Moss was at the corner of
Another man, standing 75 feet away, was hit by a stray bullet but told the police he did not see the gunmen.
The car was found abandoned that night with the murder weapons, as well as a traffic ticket made out to Reggie Griffin, the 19-year-old nephew of Larry Griffin.
At Larry Griffin's trial a year later, the only eyewitness testimony came
from Robert Fitzgerald, a career criminal from
Mr. Fitzgerald testified that he had a good view of the gunmen and memorized the license plate. He identified Larry Griffin in a lineup of photographs at the police station and later identified the abandoned car.
On June 26, 1981, exactly a year after the murder, Larry Griffin was convicted. Mr. Fitzgerald, who was then facing felony fraud charges, was cleared and released.
After losing several appeals, Mr. Griffin was executed by lethal injection at age 40 in June 1995. But some doubts about Mr. Fitzgerald's testimony were raised in the appeals process.
A judge who dissented from a decision that upheld Mr. Griffin's conviction in 1983 noted that Mr. Fitzgerald had "a seriously flawed background, and his ability to observe and identify the gunman was also subject to question."
Mr. Fitzgerald changed his account at a hearing in 1993, saying that a detective had shown him only one photograph, declaring, "We happen to know who did it."
The NAACP group hired an investigator last summer and tracked down the police officer who had testified that Mr. Fitzgerald was at the scene. The officer, Michael Ruggeri, now retired, said Mr. Fitzgerald was not there when he arrived; he would have recalled, Mr. Ruggeri said, because the Stroll was a black neighborhood, and Mr. Fitzgerald was white.
Mr. Ruggeri told investigators that if Mr. Fitzgerald had reported a license plate number, it would have been noted on the police report.
The investigators also tracked down the man shot by the stray bullet, Wallace Conners. This time, Mr. Conners said that he had seen the gunmen, that Larry Griffin was not among them and that no white man had been on the scene.
Patricia Moss Mason, the victim's sister, told the investigators that she had watched the shooting from a nearby window and had not seen any white man either.
Mr. Fitzgerald died last year before investigators could talk to him.
"Fitzgerald was the entire case and now there's very strong eyewitness
evidence that Fitzgerald was not there, and what's more, Larry Griffin was not
there," said Samuel Gross, a law professor at the
Mr. Fitzgerald, he said, had been "deeply motivated to please the police."
"It's hard to imagine why the victim's sister, a man who was shot at the same time himself, and a police officer - who live in three different states at this point and were interviewed separately - would all say, 'Actually, he wasn't there,' " Mr. Gross said.
The report suggests that three men, all now in prison without chance of parole, were the real killers: Ronnie Thomas-Bey, who owned the car and was arrested but released for lack of evidence in the case; Reggie Griffin; and Ronnie Parker, a drug dealer who ran in the same crowd.
Mr. Parker and Reggie Griffin have denied involvement. Mr. Thomas-Bey testified in another trial in 1995 that he was in the car when Mr. Moss was shot, and that Larry Griffin was not - though he said he was not sure of the last point. Mr. Thomas-Bey's uncle told investigators that his nephew had told him that the same three were in the car, and that it had been "gospel" in the neighborhood.
Mr. Moss's family, too, had long had doubts; they felt prosecutors had paid too much attention to a white witness. Walter Moss, a brother, said he called the police several times saying that his sister had seen the killing and was ignored. "It was, 'We don't need you, we know all we need to know,' " Walter Moss said.
The original prosecutor, Gordon Ankney, stands by the conviction. Mr. Conners, he said, would have been a flawed witness, even if he had not left town, as he did.
"We've got a witness who once said he didn't see a thing, and then refused to talk," Mr. Ankney said. "If I put him on the stand, even if he said it was Larry Griffin, I'd look like an idiot. Then we'd be looking like we had somebody making up a story."
Mr. Ankney noted that Larry Griffin's alibi had failed - while a family friend testified that Mr. Griffin had been helping him sell a canoe at home when the shooting occurred, records showed the canoe had sold the day before.
Mr. Ruggeri, the retired police officer, said in an interview that he was reluctant to have his recollections used to overturn a conviction. He does not recall testifying, he said. Still, he asked, "what would you trust, your memory 12 months later, or 25 years later?"
Mr. Griffin's family declined to comment; the case is complicated by the suggestion that a relative, Reggie Griffin, could have been the killer.
Mr. Conners, too, declined to speak through his lawyer, Barry Scheck, a co-founder of the Innocence Project, which says it has exonerated 159 people wrongfully convicted.
Ms. Joyce said she had begun re-reading testimony given at the trials and hearings for Larry Griffin and would re-interview any living witnesses. She hopes to finish by September, she said, and to declare him innocent or guilty.
More likely, she said, she will determine that some things about how the case was handled are troubling, but that the evidence as to Mr. Griffin's guilt or innocence is inconclusive.
Still, she said, it is important to show that prosecutors are willing to consider whether mistakes have been made.
"People say, 'Will this make citizens trust the criminal justice system less?' " she said. "I hope it makes them trust it more."