How do board members of public interest organizations make themselves useful? One way is by reviewing management’s performance. While management may not crave a performance review, a nonprofit board is not free to shirk the task. The performance review is a learning opportunity and an occasion for establishing expectations and holding management to account. Board stewardship of the mission requires no less.
In the spirit of the season, I offer as a gift to the readers of this corner of The Legal a model of a performance review: the dialogue as I imagine transpired between the Pennsylvania Innocence Project’s transcendent legal director, Marissa Bluestine, and the organization’s president as 2013 drew to a close.
Board president: Marissa, what a fabulous year. The board is thrilled that the Philadelphia Bar Association’s public interest section honored you with the Andrew Hamilton Award. And then to have the award ceremony virtually coincide with the exoneration and release from imprisonment of Eugene Gilyard and Lance Felder. Their deliverance from incarceration is why the Pennsylvania Innocence Project exists. Am I OK, by the way, in referring to the result as an “exoneration”?
Legal director: Here is the story; you judge. As an 18-year-old, Gene was picked out of a photo array by the daughter of the murder victim. She had witnessed the shotgun murder of her dad two years earlier through a second-floor window fan from across the street at 2 in the morning. The photo she identified was taken when Gene was 18, and did not depict his appearance at 16, his age when the killing occurred. There was no physical evidence, no incriminating statements by the boys, no other witnesses who identified Gene. Witnesses at the scene told police that “Rolex,” a notorious Philadelphia drug enforcer, was the perpetrator, but that information was not pursued. So on that flimsy evidence, Gene and Lance were convicted of first-degree murder and sentenced in 1998 to imprisonment for life without possibility of parole.
Gene wrote to us in 2009. He told us of having learned that Rolex, who was serving time for another murder, said he “might be willing to help.” Our newly hired staff attorney and investigator traveled to the State Correctional Institution in Frackville, Pa., interviewed Ricky Welborn, aka Rolex, and he willingly signed a very detailed statement admitting to the killing. He revealed that on the same day that he murdered Thomas Keal, he also shot a man named Anthony Stokes. We located Stokes. His hospital records confirmed that he had been hospitalized with shotgun wounds on the same day as the Keal killing. Asked who shot him, Stokes said, “Rolex.” Although Rolex refused to testify at the Post-Conviction Relief Act hearing, Stokes did. And so did several other witnesses we located. They all testified to having seen Rolex and a second man, “Tizz,” running away after the shooting.
On that evidence, Philadelphia Court of Common Pleas Judge Rose Marie DeFino-Nastasi awarded Gilyard and Felder, both now 34 years of age, a new trial, a ruling that the DA did not appeal. Both have now been released from custody while the district attorney reinvestigates the case. Am I satisfied of their innocence? You bet. Can we state that they have been “exonerated” while the potential for a retrial remains? Let’s just say that under some definitions of what it means to be exonerated, Gene and Lance still await exoneration.
BP: How will Gene and Lance fare after having been locked up for the past 15 years?
LD: If you are released on parole in Pennsylvania, you are eligible for various state services. If you are released because you were innocent, Pennsylvania provides nothing, not even an apology. We came to appreciate early on that it is not enough to free an unjustly imprisoned inmate. Innocence work entails re-entry planning and assistance. The Thomas Skelton Harrison Foundation has given us funding for re-entry services, and we are already working with Gene and Lance, who, thanks to their loving families, are making an amazing adjustment to life in the free world.
BP: Apart from the Gilyard/Felder exoneration, what are you most proud of having accomplished?
LD: Would you believe that, thanks to Commissioner Charles Ramsey and Capt. Francis Healy, the Philadelphia Police Department will soon begin training detectives in the use of a new protocol for conducting photo arrays that should largely eliminate eyewitness misidentifications derived from police suggestion. And homicide interrogations in Philadelphia are to be videotaped, which means that the risk of false confessions should be a thing of the past. The police department gets all of the credit, but I have to believe that our advice and encouragement have made a difference in getting these very sophisticated measures adopted now and not five or 10 years from now. And likewise with our encouragement and technical advice, Risa Vetri Ferman is driving the Montgomery County District Attorney’s Office and police departments in the same positive direction.
BP: I have to hand it to you. I was a skeptic when you told me last year that the best chance of achieving reform was to work with law enforcement agencies rather than pursuing legislation that would mandate the reforms. But is Harrisburg really a closed book when it comes to engineering reform?
LD: I am thrilled to say that we are close to realizing one of our highest legislative priorities, which is to extend the deadline for filing a PCRA petition based on newly discovered evidence from 60 days to one year. That legislative change will remove one of the biggest obstacles to justice for the innocent who are incarcerated. We now enjoy the cooperation of the Pennsylvania District Attorneys Association on the issue for which I couldn’t be more grateful.
BP: You get points for finding and plowing common ground with law enforcement, and points for getting what can be gotten in Harrisburg. How about the courts? I can recall a day when the courts were agents of law reform.
LD: We have two amicus briefs pending in the Pennsylvania Supreme Court on the admissibility of expert testimony to inform juries about the factors that bring about false confessions and eyewitness misidentifications. I find it hard to believe that the court will adhere to an inflexible rule, rejected in nearly every other state and federal court, that prevents the fact-finder from learning that thousands of studies have shown that innocent men and women do, under certain circumstances, confess to crimes they did not commit, and that eyewitness identifications have a high risk of error under certain circumstances.
BP: Well, with your staff of 20 lawyers, you should be enjoying some litigation and policy successes, along with conducting the innocence clinic for Temple, Villanova and Drexel students.
LD: It’s a pretty good model that enables us to litigate Gilyard and Felder with Rudy [David Rudovsky] and Jules Epstein as our co-counsel. And in the 16 other cases that are pending in Pennsylvania courts, we are co-counseling with lawyers from nearly every major firm. And every claim has first been vetted and approved by a case review panel staffed with at least two former prosecutors. We have the equivalent of 20 staff lawyers, if you let me count our volunteers.
BP: How can the board be more helpful?
LD: By finding the resources to hire a second staff lawyer, which would enable us to expand and coordinate our cadre of volunteer lawyers and law students and to move cases faster through our screening process. That, in turn, would free me to do more policy work and, yes, development.
What about you? Do you have any disappointments that I should know about?
BP: Three years ago, the Pennsylvania Bar Association recommended to the Supreme Court’s Disciplinary Board the adoption of amendments to Rule of Professional Conduct 3.8 that would formalize the obligation of prosecutors to act on substantial and credible evidence of innocence that comes to light after conviction. Three years later, our Supreme Court is apparently still mulling the issue. And why is it that no Pennsylvania district attorney has seen the wisdom of establishing a conviction integrity unit that places safeguarding the innocent on the same institutional plane as convicting the guilty? What’s good for Dallas, Chicago and Brooklyn should be good for, say, Philadelphia.
Thanks for letting me get that off my chest. Do you have any last words?
LD: I can’t thank the board enough for supporting in every possible way the work that we do. Along with Richard [Glazer, PIP's executive director], it is a magnificent group.
BP: I thought pandering was beneath you.
LD: Who told you that?
David Richman is of counsel at Pepper Hamilton, where he has been practicing law for 35 years following five years as an assistant district attorney in Philadelphia. He is a co-founder and president of the Pennsylvania Innocence Project. He has served as an officer and board member of a number of Philadelphia public interest law firms and civic organizations, and he is an adjunct professor of law at Temple University’s Beasley School of Law.