Episode 5: Fox Guarding the Henhouse

Available on Apple Podcasts, Spotify, and wherever else you get your podcasts. New episode every Wednesday. Use #TheAlleyPod to share your thoughts on the the latest episode as we uncover the truth behind DC's 8th and H Case.

As the accused prepare for trial, the theory of a “vicious gang killing” is presented as fact. Listeners discover that key evidence was hidden from the defense attorneys by the prosecutors. This represents a constitutional violation of the Brady rule, which requires the disclosure of any material evidence. Reforms that could reinforce the Brady rule are discussed.

Voices & Sounds Heard in this Episode

• Chris Turner, one of the accused
• Clifton Yarborough, one of the accused
• Gary Reals, WJLA reporter (archival audio)
• Patrice Gaines, former WaPo reporter
• Levy Rouse, one of the accused
• Charles Tuner, one of the accused
• Archival audio from 1963 SCOTUS arguments for Brady v. Maryland
• Judge Nancy Gertner
• Tom Dybdahl, former DC public defender and author of When Innocence Is Not Enough
• Shawn Armbrust, executive director of Mid-Atlantic Innocence Project
• Phil Lynch, former U.S. Assistant Attorney
• Calvin Alston’s father (archival audio)
• Russell Overton, one of the accused
• Timothy Catlett, one of the accused

Transcript:

Episode 5: Fox Guarding the Henhouse

Gabrielle Sweet: The following story contains descriptions of violence, coercion, and sexual assault. Listener discretion is advised.

Chris Turner: What was my day like on October the first, 1984? I remember this day. Simply because a friend of mine's mother was murdered. And there was talk initially that it was a little girl killed on a street.

Narrator (Shannon Lynch): What were you doing 9 Mondays ago? Can you detail your every move that day from memory? How would you prove it? Most of us would look at our phones or email. We’d look for timestamps, sent messages, or what we posted on social media. We might even look at recordings from our doorbell cameras or ask our neighbors for their security cam footage.

In the fall of 1985, none of these options were available to the 11 young people headed to trial for the murder of Catherine Fuller.

But for Chris Turner, an otherwise forgettable day, turned out to be the most consequential day of his life.

Chris Turner: that night on October the first. playing what we call the tower. I spoke about arcade games back then. We didn't had the Madden. You didn't had the NBA life. We had what you call Atari. And it consisted of a stick figure, just one stick. And we had two Donkey Kong…Just like people play today, when they play Madden and play all the video games, they're in into them and they play them for hours. And so that's what I was doing for hours. I remember it was raining outside. It was real drizzly. So I didn't have no plans for that day in. Kevin Smith. We were at his house talking on the phone, trying to make plans, figuring out what he's going to do. But it was raining all day and it was drizzly, so I was playing. Atari game. They hooks on to the back of the TV with a joystick and. Before you know it, his sister comes in their house. I'm at his grandmother's house on Fourth and K Street, Northeast, and his sister comes in from school and she get to telling me she want to watch the stories.

Narrator: When we talked in November of 2022, Cliff Yarborough told me about what he was doing the day Catherine Fuller was murdered.

Clifton Yarborough: Well, I told them no, I didn't know. They did ask me about Mrs. Follow of murder, and I said I didn't know anything about it. I said I was in school. No, he said. What did you do in that? What did I do that Monday? And I said, Well, you know, me and my girlfriend walk home from school together. We went to school together and walk home. Yes, they do. And they did blow at me a little when they were saying, you know what I was saying? So you saying you wasn't there. That's. No, I wasn't there. I was in school

Narrator: How would you, as a teenager in the 1980s, account for a whole days’ worth of events months after the fact? How would you prove you were at home playing video games or hanging out with your girlfriend? Add in the variable of an inexperienced defense attorney going up against a federal prosecutor’s office with unlimited resources. How would you create a solid alibi?

The answer is, you probably couldn’t.

This is The Alley: DC’s 8th & H Case. My name is Shannon Lynch.

Episode 5: Fox Guarding the Hen House

In the previous episode, harsh interrogation tactics grew the list of those arrested in the 8th and H case to 17.

The grand jury dropped the charges for 4 of those arrestees. Two suspects - Calvin Alston and Derrick Bennett - plead guilty to lesser crimes and agreed to serve as a star witnesses on behalf of the government in exchange for a lighter sentence. That left 11 of them facing down the biggest murder trial in Washington, DC’s history.

Part 1: Media

By the fall of 1985, the local TV news stations had been covering the 8th and H Case incessantly for the past year:

Gary Reals (archival news audio): Police say these men are members of a gang ... The fact is, the Eighth and H. Crew has made a name for itself by means of graffiti, as well as word of mouth.

Narrator: Local papers ran articles with headlines like: “Police Arrest 5 In Gang Killing Of NE Mother” and “Fuller Killers Bred By Mean Streets”.

There was one common thread throughout nearly all of the media coverage. The government’s story that a gang was responsible for Catherine Fuller’s murder was reported as fact. It wasn’t questioned or challenged. Here’s Patrice Gaines again, author and former Washington Post reporter:

Patrice Gaines: One of the things that was happening in 1984, 85. That doesn't happen as often now, was that reporters simply believed what police said and they quoted them and as if whatever they said was the truth and the Post was no different. They would just quote the police and their version of the story. So when I got to the neighborhood, I one of the things that really struck me was that the scenario that the police gave just did not make sense, common sense.

Narrator: Thanks, in part, to the media, most of the public thought the defendants were guilty before the defendents even walked into court.

Part 2: The Trial Begins

Just before the trial began in October of 1985, Mike Campbell had to sever his case from the rest of the group. His lawyer withdrew due to personal reasons, rumored to be in connection with drug or alcohol use. Without a lawyer, Mike could no longer be tried with the others. That left 10 young people prepared to defend their innocence in DC Superior Court. Months later, with a new lawyer, Mike Campbell would take a plea deal.

Judge Robert M. Scott presided over the trial. Judge Scott was what you might call old school. The white midwesterner was 63 at the time of the trial and had sat on the DC Superior Court since 1977. When it came to running a trial, he wanted all rules strictly followed and all proceedings to run as efficiently as possible. Whenever a lawyer, or anyone else, made an error, he was quick to ridicule them in front of the whole courtroom.

Chris Turner told me about his impressions of Judge Scott:

Chris Turner: The judge in this particular case was Robert M Scott. He was considered one of the meanest, harsh and nastiest judges in D.C. Superior Court. I personally think the case was put in front of him. To make sure that he was the judge. They would be on the wheel, would they uses a process called the wheel. And when the cases come up, the judge is selected. I think he personally was push your ass or to get on this case particularly. He was extremely biased towards the defense. He missed. Quote his statements when witnesses were saying Christopher Taylor was present in in that alley during this time when people were speaking and he say Christopher Taylor was Christopher Turner when they explained to him, no, no, we're not talking about Christopher Turner. That's Chris. We talk about law, Chris and. He was adamant about giving his own understanding of what he thinks took place in this case. I think he was over bias in this case. I think he was over opinionated in this case. I think he handled this case wrong.

Narrator: Levy Rouse had a similar read of the judge:

Levy Rouse: Oh, Judge Scott was uhh, uhh, uhh, this is a judge who asked me before the trial even start. That. He says something to a state where, like, you know, you're not leaving here, you know. Oh, Judge Scott was oh, he didn't want to hear nothing. The lawyers had to say. He didn't believe that we was innocent. Oh. Judge Scott was a judge that. He's seen eight black men sitting up there, and we was going to jail, period. We was going to jail.It wasn't no. Oh, it wasn't all like we were going to get off, or he was going to give us less time. Oh, Judge Scott was sitting up there saying they going to jail. That was it. He was going to prison, period. He already had his mind made up. He would know. Oh the lawyers, them. They can come in there and say, well we got another guy, he don't care. We're going to jail. We going to prison.

Narrator: The trial officially began on October 31st, 1985. As is the case with all criminal trials, the prosecution goes first. In his opening statement, federal prosecutor Jerry Goren painted a gruesome picture of how the crime played out.

According to Goren, on the afternoon of October 1st, 1984, the defendants plus several more people were hanging out in the park near 8th and H, “playing and joking and … singing Chuck Brown’s song about money, getting paid.”

Goren was referencing the song “We Need Some Money” by Chuck Brown and the Soul Searchers, which was released in 1984. Over a go-go beat, Brown sang lyrics like “A dollar bill is a friend of mine”.

According to the prosecutor, the group was inspired by the song and decided they were going to rob someone for some cash. It was at this point that they saw Mrs. Fuller on the other side of H street. One of them said, “she’s got big money”.

Next, according to Goren, the group crossed H street. Levy Rouse and Charles Turner grabbed Mrs. Fuller and pushed her into the alley from the 8th street side. Everyone in the group took turns hitting her. They picked her up and carried her down the alley, to just outside the garage. Goren said Mrs. Fuller was yelling relentlessly for help. Lastly, she was brought into the garage where she was sodomized with a pole and left to die. Goren hypothesized there were many more people involved in the attack than just the defendants that were sitting in the courtroom.

Arguably, an excellent trial lawyer’s most important job is to be a compelling storyteller. No amount of legalese or memorization of law is going to win the hearts and minds of a jury. Goren had just told a gripping story. The people in the packed courtroom were visibly disturbed.

The defendant's impression of the prosecutor varied. Levy Rouse told me:

Levy Rouse: Oh, Jerry Goren was. Oh. He's seeing eight black man. And he wanted just to say to us that I got power. Oh, Jerry Gordon. One of the lieing man ever walked in two shoes. Oh. Maybe people don't know this, but during the trial. Oh, come to find that Jerry Gordon was sending money to one of the two dudes who had testified against us. And what he said about his mouth was, I thought he might needed some help while he was in prison. And I sit there and I say to myself, you know, when I ask one of our callers for all those needed help, you just send us no money. But they never brought that back up at trial.

Narrator: Cliff Yarbourough added:

Clifton Yarborough: Well. He was like. Went all the way off the the bank because the things that he was saying, you know. So. He was acting nasty as well, you know, like arrogant, like, Oh, this guy's going. I'm gonna take him down so he was acting arrogant. You know, when. When he would talk.

Narrator: Charles Turner, on the other hand, tried to give the prosecutor the benefit of the doubt. Admittedly, he looks back on his point of view as slightly naive:

Charles Turner: They're supposed to make you look bad so they can gain the confidence of the jury, the people that are sitting over here judging. So and also the judge. So it was his job to make me look bad, Right? So I really didn't I really didn't hold it against him, even though I didn't understand why he would do it. You know, again, I have to keep emphasizing, you know, not knowing a lot of stuff.

Narrator: The defense had their work cut out for them. All 10 of the defendants in the 8th and H case had their own lawyers and each of them would need to start strong and establish reasonable doubt in their opening statement.

You might assume one of the defense attorneys stood up and talked about how witnesses had identified convicted woman-assaulter James McMillan running from the crime scene with an object concealed under his coat. Or the account Ammie Davis shared with police about seeing James Blue beating Mrs. Fuller in the alley that afternoon. Or the witness statement about hearing groans coming from the closed garage around the time of death. The garage was too small to fit a large group of people in it with the door closed.

But it was impossible for the defense attorneys to propose these alternative narratives… because none of this evidence was ever shared with them.

Part 3: The Brady Rule

Prosecutors have immense power in criminal trials. As we discussed in an earlier episode, they pretty much have free reign over the grand jury process that determines who gets indicted. The prosecution also has the advantage of access to all the information police gather during their investigation. They’re granted this access well ahead of a trial, allowing them to incorporate this information into their arguments. The defense, on the other hand, only has access to police records that the prosecution decides to share with them.

This brings up an obvious conflict of interest. If a prosecutor comes across evidence that might undermine their case, couldn’t they just choose not to share it with the defense?

In 1963, the United States Supreme Court heard arguments for a case called Brady v. Maryland, which addressed this issue directly:

E. Clinton Bamberger, Jr.: And I don't know, but this is this is really the crux of our problem in this court, that there was a there was an unconstitutional suppression or a withholding of evidence prior to a trial. And now we're only going to have half of that and we're going to have a different trial and anybody else would have and we're not going to have the trial that the court of Appeals said we should have had.

Narrator: Justice William O. Douglas authored the opinion on behalf of the majority. Here’s my colleague Lee Drutman reading a quote from that opinion:

Lee Drutman: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Narrator: That “upon request” part was voided in a subsequent Supreme Court case. So therefore, in other words, the Brady Rule says that a prosecutor must share evidence with the defense if that evidence could possibly change the outcome of the trial. Failure to do so is a violation of a defendant's Constitutional rights.

Nancy Gertner is a retired federal judge and professor at Harvard Law School. I got the chance to discuss the Brady Rule with her.

Nancy Gertner: The Brady Rule is a rule that requires the government, a prosecutor, to turn over evidence that is, on the one hand exculpatory, that exonerates the defendant, but also that could tend to exonerate a defendant. Not that that is categorically exonerating, but they could tend in that direction and even mitigate the punishment. The rationale for the rule is that the government has access to the incriminating evidence in a case or all the evidence in the case. They have access to the crime scene. They have access to documents that they've mustered to prosecute, essentially, unless they are obliged to turn over exonerating or even documents that mitigate the punishment. The defense would have no way to defend. You think about it this way. If there's a crime scene, a murder, if there are aspects of the murder scene that could exonerate this, the suspect, the the only way that the defendant can find out about that is through the government. So the obligation to turn over evidence is a terribly important obligation.

Narrator: Author and former DC Public Defender Thomas Dybdahl added:

Thomas Dybdahl: The idea was to make trials fair, that justice is not winning a guilty verdict in court for a prosecutor, But it's finding justice and information that points to innocence for a defendant is crucial to justice. That rule has been in effect now for, what, 60 years almost. But it's often honored more in the breach than in reality. You can understand that prosecutors in the middle of a criminal case, particularly if they believe that the person they've arrested in charges is guilty and they want to believe justice is to have this person convicted, it's very difficult for them to share evidence that could hurt their case, that would help the defense. And so, as you might imagine, they often do not do that. And because it may well be evidence that only the prosecution has, it often goes unnoticed or unfound.

Narrator: While the Brady rule sounds pretty straightforward in theory, as Thomas mentioned, it often doesn’t pan out that way in real life because of the way it’s enforced. Here’s Judge Nancy Gertner again:

Nancy Gertner: The rules with respect to enforcing Brady are somewhat complicated. Clearly, if one is convicted and you later find out that the government didn't turn over what they should have turned over, that could be the basis for overturning a conviction. And part of the rationale for that is that the the the conviction wasn't fair. It wasn't fairly obtained because you didn't have the information you should have had. It's also a way of making sure that the prosecutor does what they're supposed to do, because it's a it's a it is incentivizing the prosecutor if he wants to have convictions.

Narrator: However, when prosecutors are caught breaking the Brady Rule, they very rarely face consequences.

Shawn Armbrust is the executive director of the Mid-Atlantic Innocence Project. She summed up the conundrum inherent in Brady:

Shawn Armbrust: So if I'm a prosecutor and I have decided that I want to proceed to trial in this case, presumably, hopefully, I have decided that I think that person is guilty beyond a reasonable doubt. I have looked at all of the information I have and I have said, nope, that, you know, all of that information goes to proving guilt, and any information to the contrary isn't really relevant. Is it maybe material you might say? So it gives prosecutors, you know, it's I mean, it's the definition of the fox guarding the hen house. It's asking them to do something that's psychologically very difficult for anyone to do. And then when they get it wrong and when they don't turn over information that is exculpatory or would be helpful to the defense.

Shawn Armbrust: It only matters. The conviction is only reversed if judges, most of whom were former prosecutors, ultimately decide that the evidence was material. And of course, because there's a strong interest in preserving convictions, there's a strong interest in finality. For the most part, these challenges aren't going to be successful. And the materiality standard is really vague. It's kind of, you know, change. It's not really changed over time exactly.

Narrator: All of this talk of how evidence should be handled by prosecutors is further complicated by the fact that DC is not a state. If you were to commit murder in a state, a prosecutor from the nearest District Attorney’s office would be assigned to your case. The vast majority of District Attorneys in the US are elected, which means they are beholden to voters. They are also almost always from the area in which they are prosecuting cases.

On the other hand, in DC, the federal government holds jurisdiction, which means the US Attorney’s Office handles homicide cases. In 1984 through 85, the US Attorney’s Office was headed by Joseph diGenova, a Republican from Delaware who was appointed by Ronald Reagan. Jerry Goren, the Assistant US Attorney assigned to prosecute the 8th and H case, worked under diGenova. Like diGenova, Goren also was not from the DC area.

I spoke to retired Assistant US Attorney Philip Lynch about this. Lynch worked in the US Attorney’s offices in Tacoma and Seattle, Washington for more than 2 decades. He explained how Brady Rule issues are handled in a US Attorney’s office. In the 80s, the process was more lax than it is today, and simply involved prosecutors asking their higher ups what they thought about disclosing the evidence in question. Sometimes, the prosecutor just made that decision on their own, which, from what we know, is exactly what Jerry Goren did.

Phil Lynch: Typically, the attorney assigned to the case knows his case, his or her case file better than anyone else. So he makes the initial determination to release Brady material to the defense counsel. If he has a question about whether something should be released as Brady material, he will go to his immediate supervisor. And if they have a question, they will go to the chief of the chief and the deputy chief of the criminal division. And typically, that is as high as it goes. But if they have a question, they can go to the first assistant, which is the number two person in the office, in the highest career person. Or they can go to the United States attorney who is a political appointee. If they have questions about whether something is Brady material, they can also call that the criminal division at the main Justice Department and seek advice on whether something is needs to be released as Brady material.

Narrator: Starting in the early 1990s, US Attorney’s offices designated what are called Professional Responsibility Officers. This formalized the process and put more stringent policies in place to document any questions about turning over Brady material. But in the 80s, no such system existed.

Phil Lynch: In my office in the nineties through 2016. I was the professional responsibility officer. So they would if the U.S. if the assistant U.S. attorney wasn't sure what to do, they would come to me. We would talk about it. And then, you know, the chief of the criminal division would get involved, the U.S. attorney, and then we would go back to the main Justice Department if we weren't sure what to do. So there's you know, you go through the hierarchy. In the eighties, it wasn't there wasn't a professional responsibility officer.

Narrator: Prosecutor Jerry Goren didn’t have a Professional Responsibility Officer to look over his shoulder in 1985. Regardless, it was Goren’s clear Constitutional duty to share exculpatory evidence with the defense, and he failed to do so.

A few states have made moves to prevent Brady violations from happening by passing laws that require prosecutors to share evidence with the defense. This is referred to as “open-file discovery”.

In 2004, Governor Mike Easley of North Carolina signed a bill that requires prosecutors to share files in all felony cases. The statute requires district attorneys to share files including investigator notes, defendant and witness statements, test results, and a list of probable witnesses for the trial.

Since then, states including Ohio, Louisiana, and Texas have passed similar laws requiring open discovery, or at least making it make it more commonplace. However, in most states, it is still the case that prosecutors have the power to decide what evidence is shared with the defense.

(music fades out)

Part 4: Prosecution

The government's case against the so-called 8th and H crew was heavily dependent on Calvin Alston and Derrick Bennett’s statements. The two young men agreed to testify on behalf of the government in exchange for shorter sentences. On November 5th, 1985, the prosecution called Derrick to the stand.

As he timidly recounted his version of events, the judge had to repeatedly tell Derrick to “keep your voice up”. Reporters in the courtroom described how physically uncomfortable he looked. He implicated all of the defendants except for Cliff, who he said he didn't see in the alley at any point during the attack.

There were several factual issues with Derrick’s testimony. In his version of events, Mrs. Fuller was pushed into the alley while walking back from the store, carrying her purchase in a shopping bag. This doesn’t make sense when you consider how high her blood alcohol content was, unless Mrs. Fuller chugged most of her pint of vodka in the half block from the liquor store. That seems unlikely as Mrs. Fuller was very private about her drinking. She wouldn’t even visit bars. She only drank at her home, at someone else’s home, or out of sight in the alley. Plus, the bottle of vodka found in her umbrella at the crime scene was empty.

Also, he claimed the attack started on the 8th street side of the alley. Most of Mrs. Fuller’s belongings, including her raincoat, umbrella, and hair rollers had been found near the 9th street side of the alley. Derrick said Mrs. Fuller was carried most of the way through the alley, while the injuries on her body showed she’d been dragged a long distance. He also claimed that all of Mrs. Fuller’s clothes had been torn off, but she still had some clothes on when her body was found.

None of the defense lawyers questioned Derrick’s version of events, only his motives. Several of them attempted to pin the murder on Derrick and/or Calvin to take focus off of their client.

During cross examination, Timothy Catlett’s lawyer Fred Sullivan stated, "She was just a little lady and she was hollering for help and you just punched and punched". "Yes, sir," replied Bennett. "What was your object? What did you hope to accomplish?" Sullivan asked. "I don't know," Derrick answered.

Next up was Calvin Alston.

Calvin had a particularly traumatic experience in jail leading up to the trial. In March of 1985, he’d been sexually assaulted by 3 men in his jail cell. Now, more than ever, he was determined to make his time behind bars as short as possible. According to his father, though, Calvin continued to privately claim he had no knowledge of the murder.

Calvin’s Father (archival news audio): He's told me up to the last minute I talked to him yesterday, he said he didn’t know anything about it.

Narrator: His zealousness showed in his trial testimony. A reporter in the courtroom described Calvin’s style of describing the crime as “aggressive” and “clearly-stated”. Like Derrick, Calvin could not explain the motivation behind the attack. A notable factual error in Calvin’s statement was that Mrs. Fuller was hit in the back of the head with a 2 by 4. She had no injuries to the back of the head.

Besides the elements of both Derrick and Calvin’s stories that directly contradicted physical evidence, their two testimonies also differed from one another in very important ways. Derrick implicated all of the defendants except for Cliff Yarborough. Calvin said Cliff was part of the crime, but Lisa Ruffin wasn’t. Derrick said there were several girls present, while Calvin said there were no girls at all. Derrick placed Calvin as a central attacker during the sodomy. Calvin said he never touched Mrs. Fuller during the sexual assault. Most puzzling, Calvin said he never saw Derrick at the scene of the crime at all.

It’s hard to believe that if both Calvin and Cliff had been in the alley, attacking Fuller, Derrick wouldn’t have noticed Cliff, or seen Calvin’s involvement. And how could Calvin have completely missed Derrick, along with the group of girls Derrick said was there?

Those differences can’t be explained. Unless, of course, neither Derrick Nor Calvin were in the alley that day.

Another witness for the government, 14-year-old Maurice Thomas was brought to the stand. He claimed he saw the attack happen while standing in the alley in the next block between 9th and 10th street.

There were several problems with his claim. First, it would be impossible to see where the alleged attack took place from where Maurice claimed he was situated in the next block over because the alleys do not line up. Second, Maurice had an incentive to get these young men in trouble. Maurice had been bullied by a few of them relentlessly. This was payback.

Moreover, as was common practice, witnesses were given $20 to 25 each time they went to share information with the detectives. $20 times multiple trips to the homicide office added up to a lot of money for a 14-year-old in a lower-income neighborhood in 1985.

In addition to Maurice, a handful of other young people from the neighborhood were pressured by police to testify. One of them was seen sucking their thumb while on the stand. None of them were consequential in swaying the jury, however, as one juror anonymously recounted to the Washington Post after the trial.

The final piece of evidence the prosecution presented was the video recording of the statement Cliff gave police the day he was arrested. Because Cliff refused to cooperate with the government after the taping, all of the names besides his had to be bleeped out. When you say something to police during interrogation, whatever you say can be used against you in court, but not others.

The video was devastating for the defendants. It only convoluted the suspect pool further in the eyes of the jury. Despite the redacted names, Cliff still broadly portrayed the government’s gang theory. What the jurors didn’t see, of course, was the hours of coercive and violent interrogation tactics Cliff endured just prior to the video being filmed.

The prosecution did not present a single piece of physical evidence that tied any of the defendants to the crime scene or to support a gang attack scenario.

Another critical thing to note is that the defendants were not tried for any form of sexual assault, even though there were clear sadistic sexual motives in the crime. I believe this was very deliberate on the prosecution’s part. None of the defendants had any kind of history with rape or violence against women. But, a few of them did have small robbery charges. Even though splitting up a very small amount of money among 20+ people makes very little sense, it was a better strategic move for the prosecutor to pursue robbery and skip sexual assault charges all together.

On November 20th, 1985 it was finally time for the defense to present their case.

Part 5: The Defense

Morell Mackey: Our criminal justice system treats you better if you are rich and guilty than if you are poor and innocent. — Bryan Stevenson

Narrator: The question on the minds of everyone in the courtroom was never if a gang attack had taken place, only a matter of who was involved. This created an “every man for himself” mentality. The best the defense attorneys would do was point the finger at other defendants, or try and pin it on Calvin and Derrick exclusively. It was like a circular firing squad.

All 10 of the defendants in the 8th and H case had their own lawyers. The first one that was arrested, Alphonso “Monk” Harris had the good fortune of being assigned a DC public defender. Many people hear “public defender” and they picture mediocre lawyers, which may be a fair assumption in some places. But the nation’s capital has one of the best, if not the best public defender's offices in the country. Monk got assigned public defender Michele Roberts, who we’ll hear from in just a moment.

Defendants in criminal trials have to be assigned lawyers from different firms in order to avoid any conflict of interest issues. If several of the defendents can’t afford to pay for an attorney, one will be given a public defender and the rest will be assigned an attorney from a private firm. Almost all of the defendants in the 8th and H case were given court-appointed lawyers. The quality of a court-appointed lawyer is simply the luck of the draw, literally. It is a random process in which the court assigns private lawyers from all different specialties to a defendant who does not have the means to pay for one. Some of the defense attorneys in this case had never even worked on a homicide case before. Furthermore, it’s a common view that many court appointed lawyers enter their name into the pool simply because they aren’t skilled enough to have a sufficient number of paying clients.

Some of the court appointed lawyers in thie case have since made names for themselves. Greta Van Susteren, of Fox News fame, acted as Kelvin Smith’s lawyer. Lillian McEwen, who was Levy Rouse’s lawyer, famously went on to recount her affair with Supreme Court Justice Clarence Thomas in the book D.C. Unmasked & Undressed.

Most of the accused were not impressed with the quality of their attorneys. In his words, Russell Overton describes the disappointment he had with his lawyer:

Russell Overton: It was a shame. So after my mother really got involved, after we go through trial, he all these lies the lawyer didn't name do nothing for me. And, you know, he we thought he was a great lawyer. He didn't do Jack nothing for me. Oh, I asked him about Carrie already when she got up saying that. Yes, she's seen me. You know, I don't even know. So I asked him the question. Her. Actually, it was, you know me from where I live. Do I have keys? You know. But, you know, question witness, you know. Oh, he just say, no, he passed, you know. It was a shame what they'd done to us because. You didn't care about catching the real killer.

Narrator: Levy Rouse told me how he felt about his court-appointed lawyer, the one that later wrote the tell-all book:

Levy Rouse: I had a lawyer. Liam McEwan. And uhh, She came over to jail and said she she's going to represent me and some woman, right, with her. You know, it was like she would come over to jail, ask me questions and just leave. And I kept saying to myself, you know, you're not speaking up in the courtroom. And now it's like a war going on. All lawyers just trying to deal with their client and nobody else. Oh, my lawyer was just what I heard through the grapevine. My lawyer was on coke. You know, I mean, this is what I heard. And, you know, you will think because. She really, really was trying to, you know, like you get what it was she said. They offered me 14 to something and I'm looking at her like no telling what happened, you know, And she say, you know, you can go to trial, you know. The funny thing was, while we was going through all this, she never said a word. But if another lawyer got up and said some, she would say the exact same thing but in a different way. And I'd be looking at her like, I don't know. I only know one thing. She had a murder trial. I never thought in my mind that that woman ever had a murder trial. So they just gave me a lawyer that they knew was going to fail.

Narrator: Timothy Catlett felt like his lawyer never believed he was innocent. Almost all of the defendants in this case told me they had a similar experience.

Timothy Catlett: I mean as any bootleg lawyer, because that's what I call them, you know. Any bootleg lawyer are they gonna sell you a dream just like a politician or anything else? They're going to sell you a dream. And it'd be different because. Once. Once they got me over to D.C. jail, my lawyer brought me a plea agreement. Talking about cop out for seven years. I say cop out for seven years? I'm not copping out to nothing I didn't do. You know, and you take them papers, you take them and you get out of here, you know. But. Huh? I don't know if that's what you want to call a lawyer, but, you know, it's. That's what I was working with.

Narrator: Public defender Michele Roberts was clearly the most proficient among the defense lawyers. After serving as a public defender, Roberts went on to work for the high-powered law firm Skadden and then served as the executive director of the NBA Player’s Association. But in 1985, her job was to defend Alphonso “Monk” Harris.

In an interview in February of 2023, she told me how she got involved in the case:

Michele Roberts: And I was not initially assigned to represent the client. Another attorney in our office at the time was appointed by the court to represent the client, and that lawyer ultimately left the public defender's service to go into private practice. I think at that time I was the chief of the trial division at that PDS we call public defender service PDS. And it wasn't on the eve of trial, but the lawyer left. But he left, you know, maybe four or five months before trial. And so rather than burden another member of my staff with having to catch up, I didn't have a full caseload because I was trial chief. And so I was able to step in with less. You're prior commitments in terms of litigation calendar, and I think it may have been about five months prior to the schedule.

Narrator: Monk was arrested only 3 days after the murder happened, which meant he had a fresh memory of what he was doing on October 1st, 1984. It made the most sense for Roberts to choose an alibi defense, although she admits that an alibi defense is never her first choice.

Michele Roberts: I can count on one hand the number of times I've used an alibi defense. Because no one believes and generally you're with your girlfriends and everyone sensible girlfriends, like I can't recall the details of this, but it was a fight and it was not a fight involving my client. But the alibi witness was having a fight with his girlfriend at the time …And then we were able to corroborate it with I think there was a police report or I'm on one call. So it just had a ring of truth to it that made it credible.

Narrator: The rest of the defense attorneys essentially followed Roberts’ lead and went with an alibi defense strategy. Because prosecutor Goren withheld so much key evidence, that might have been the best option available to them, anyways. But proving an alibi was nearly impossible for those that were arrested a months after the crime took place, which was the case for most of them. The small amount they did remember was corroborated mostly by friends and family, which juries tend to discount.

Furthermore, the defense attorneys had limited resources. It would have been a huge undertaking to pry at the government’s gang theory.

One after another, the defense attorneys explained to the jury why they should believe other defendants were guilty, but their client was innocent. The division among the co-defendants only bolstered the government’s case, making it appear much stronger in comparison. It also created chaos as the jury headed into deliberation.

Charles Turner: During the trial when the verdict was read. I do remember. Being kind of dumbstruck. I was like. Not believing it. Like, No, this can't be true. No. Are you serious? And you know, because. Because the way they read it, you know, they read it. For each individual. They start at one individual and say, We find the defendant. We find this defendant. You know, So, you know, as you is reading all you still. It leaves me, you know, I'm still at this point, we're nodding off.

Narrator: That’s next time on The Alley: DC’s 8th and H Case.

Maika Moulite: This podcast is dedicated in memory of Catherine Fuller. Our host is Shannon Lynch. Our executive producers are Jason Stewart and Shannon Lynch. This was recorded at New America studios and Creative Underground. The cover art is by Samantha Webster. Editorial and media support from Jodi Nardie, Molly Martin, and Joe Wilkes. Audio editing and mixing by Shannon Lynch. Social media directed by me, Maika Moulite. Script editing and fact checking by Thomas Dybdahl and Charla Freeland. A very special thank you to Patrice Gaines for keeping this story alive for decades and for supporting this project throughout production. Please subscribe to this podcast wherever you listen and be sure to follow New America on all platforms.