Arbitrary Justice: One accused exonerated, the other remains branded

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One week apart back in 2003, the Wisconsin Supreme Court turned away the appeals of two suburban Chicago men who had stood trial together.

Those seven days completely altered the lives of Dimitri Henley and Jarrett Adams, who were charged along with a third man with raping a Wisconsin teenager days after she moved into her dorm room in 1998 to begin college.

More than a decade later, Adams is an exonerated man, a lawyer who works as a clerk in the federal courts in New York. He works on behalf of criminal justice reform, and last week was awarded the Martin Luther King Jr. award from a group dedicated to helping African American youth succeed.

Henley is not so lucky. A convicted sexual offender, he is required to list himself on a registry of sex offenders that will limit his freedoms for the rest of his life. He remains on the list even though the trial judge who presided over Henley’s case concluded in 2008 that his conviction was wrongful and should be overturned.

By a 4-3 vote, the Wisconsin Supreme Court later ruled that the judge lacked authority to overturn the verdict because Henley had failed to raise the issue in a timely way.

That has left Henley a main character in a case that demonstrates just how arbitrary the criminal justice system can be. It is a case that involved poor defense work by attorneys who failed to track down a key witness to challenge a claim of rape; a case in which strict time limits outweighed the trial judge’s effort to achieve a just result; a case in which race was an unstated but powerful factor.

In the end, it is a case that ended with completely different outcomes for the defendants, though the facts of their cases were virtually identical.

Conflicting accounts

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Graphic by Sam Hart

Even today, almost 17 years later, the facts of what happened that night remain a matter of some dispute.

Three Chicago-area teenagers drove to Whitewater, Wisconsin, on September 5, 1998. Henley, 19, Adams, 17, and Rovaughn Hill, 19, were visiting the town’s University of Wisconsin campus where they ended up invited into the room of dorm resident Shawn Demain.

Two female students, the accuser and her roommate Heidi Sheets, soon entered the room. (The accuser is identified in court papers as SES. Although her version of events is now significantly challenged, Injustice Watch is adhering to the initials found in court papers.) “We were both pretty intoxicated,” Sheets said in a recent interview. “I was being flirtatious; it was all fun and they seemed really nice.”

There are sharply different accounts of what next occurred.

SES contended that she had left Demain’s room alone when, as she opened the door to her room, the three men appeared behind her. She testified the men came into her room uninvited, suggested she play music, and forced her to take part in sexual acts with them.

But her roommate, Sheets, contended that the two women had invited the three to their room. Sheets, who was called as a prosecution witness, testified that she did not join them immediately; instead she went to visit another friend in the dorm, planning to meet the rest of the group back in her room shortly thereafter. Adams, meanwhile, contends that he stayed behind to continue playing a video game as the others left Demain’s room, and met them at the young women’s dorm room several minutes later.

As Sheets described what happened next, when she arrived at the room she found her roommate engaged in sex acts with one of the three men; Sheets turned, ran down the hall and went into a nearby room. The sex acts stopped while SES followed her, asking if Sheets was angry. When Sheets did not open the door, SES turned back down the hall, where, she testified, one of the three men ushered her back into the room and the sexual activity resumed.

At one point during the encounter, SES received a phone call of several minutes from a friend and expressed no concern, according to court records.

The men left Whitewater around 2 a.m. on September 6, 1998, and drove back to Chicago. After the trio departed, SES called her boyfriend and told him she had been raped. Although she did not want to call the police or go to the hospital, her boyfriend convinced her to do so the next day, according to testimony.

Approximately three weeks later the police questioned Adams, Henley, and Hill about allegations of a gang rape. “No one raped anybody,” Adams said. “Everything was consensual.”

Henley, Adams, and Hill were arrested on December 1, charged with crimes including five counts of first-degree sexual assault.

Hill’s family hired attorneys Jonathan C. Smith and Gerald P. Boyle. Adams and Henley were assigned attorneys through the public defender’s office: John Fiske for Adams, and Steven J. Luchsinger for Henley.

The three originally went on trial together; but by the close of testimony, prosecutors sought in the midst of trial to amend the charges to include lesser crimes. At the defense’s request,  Jefferson County Circuit Judge Jacqueline R. Erwin granted a mistrial.

Hill, but not his co-defendants, argued that prosecutors should be barred from retrying the case at all. His attorneys appealed when the judge denied that motion. At that point his case became separated from that of Adams and Henley, whose attorneys chose to go ahead to trial.

“I don’t know why those guys didn’t join with us on that,” Hill’s attorney, Smith, told Injustice Watch. “I’ve always been baffled by that.”

Asked about that decision, Luchsinger said in an interview he simply did not recall, saying he had worked on thousands of cases since then. “I don’t recall my conversations with Dimitri about how we were going to strategize the whole thing,” he said. Fiske did not respond to requests for comment.

At the retrial of Adams and Henley, their attorneys called no witnesses to the stand, opting for a “no-defense defense” that Keith Findley, faculty director of the Wisconsin Innocence Project, called “disastrous.”

“That’s what doomed them both to convictions,” Findley told Injustice Watch.

Henley says he wanted to present a defense, calling witnesses including the doctor whom SES saw after the incident. But he said his attorney disagreed, maintaining that the case was weak: “‘There’s no way a jury will find you guys guilty,’” he recalled his attorney saying. “‘We’re gonna go with a no-defense strategy.’ And my parents … they didn’t know anything about the law. … My dad just kept saying, ‘I don’t have a good feeling about this.’”

On March 10, 2000, a jury found Henley and Adams guilty of five counts each of second-degree sexual assault. Judge Erwin sentenced Henley to 20 years in prison. Citing Adams’s “anger and lack of remorse,” according to court documents, she sentenced him to 28 years.

Hill’s claim that the state should not be allowed to retry him ended up rejected by the Wisconsin Court of Appeals. When his second trial finally occurred in February, 2001, his attorneys called a witness that changed everything: Shawn Demain, the dorm resident in whose room SES and her roommate, Sheets, first met the three Chicago teenagers.

Demain did not know the men or SES, making him an “impartial and independent” party whose testimony carried more credibility, the courts would later write. Demain testified that the women had invited the men up to their room, contrary to the accuser’s version that they followed her on their own. Demain also testified that late in the evening he saw the accuser, SES, smoking cigarettes with the three men. Sheets confirmed in an interview with Injustice Watch that she saw the same scene.

Hill’s retrial ended in another mistrial when the jury hung 11-1 to acquit him. As prosecutors were preparing to retry Hill yet again, they turned over to the defense for the first time police notes taken during the investigation. The notes showed that Demain had said from the start that one of the three men had stayed downstairs playing video games, just as Demain contended at trial.

Prosecutors at that point dropped the charges, marking the end of the road for Hill, who walked free on May 8, 2001. For Henley and Adams the road was anything but smooth.

Seeking justice behind bars

Armed with new attorneys, Henley and Adams challenged their convictions by contending that their lawyers had failed to properly represent them by not calling witnesses including Demain, whom the lawyers never located or interviewed before deciding not to call him as a witness.

Judge Erwin held a post-conviction hearing at which both Luchsinger and Fiske contended that they had concluded their clients were better off if they did not put on defense witnesses. As Luchsinger testified, the lawyers decided they “were not going to present a defense and ride that horse, hoping that ‘no defense’ would carry, would outweigh the advantages of a favorable witness.”

Erwin ruled that the decision to put on no defense was strategic. On appeal, Henley’s conviction was upheld by a panel of the Wisconsin Court of Appeals in October, 2002; a separate panel upheld Adams’s conviction the following month. As the panel wrote in Adams’s case, the “defense counsel agreed they were not going to call witnesses, and this was a reasonable decision.”

Both defendants appealed again, to the Wisconsin Supreme Court, which declined to take up the two cases one week apart in January, 2003.

Seven Critical Days

That one week created a gulf between the two men that neither realized. For once the state supreme court rejects an appeal, that starts the clock ticking. A defendant has 90 days in which he can ask the U.S. Supreme Court to take up the case — a rarity — and then one year to file a habeas corpus petition in federal court, contending the conviction was marred by a violation of the defendant’s constitutional rights, such as the right to effective representation.

“By mere fortuity,” Findley said recently, Adams had one extra week. “It was just pure bad luck that Dimitri [did not have] habeas corpus rights whereas Jarrett did. He was caught in this sort of legal trap that had nothing to do with his culpability or fairness of what was happening to him.”

Both men separately had turned to Findley’s organization, the Wisconsin Innocence Project, for help. But the organization had a backlog of cases; by the time Henley’s case made it to the top of the project’s list, his time had expired. Adams, however, still had days left for the project to act.

In April, 2004, the Wisconsin Innocence Project filed on Adams’s behalf in U.S. District Court. But in January, 2005, U.S. District Judge Joseph P. Stadtmueller turned down the petition. The judge ruled that though the facts were not overwhelming – he called it a “close” case – Adams had not shown that Demain’s testimony would have changed the outcome. The jury “had plenty of reason to conclude the victim’s version of events was incredible,” the judge wrote, citing Sheets’s testimony. “There is simply no reasonable probability that adding Demain’s testimony… to the mix would have caused the jury to disbelieve the victim’s version of events.”

The Wisconsin appellate court’s decision that the evidence was enough to sustain a conviction, Stadtmueller concluded, was “minimally consistent with the facts and circumstances in this case.”

That left the Seventh Circuit U.S. Court of Appeals in Chicago as Adams’s last real hope. In February, 2006, a three-judge panel granted his appeal, ruling that attorney Fiske’s failure to track down Demain and interview him, much less call him as a witness, was so deficient as to leave the court convinced there was “reasonable probability” of a different outcome had Demain been called as a witness.

The defense attorney knew from the first trial, which ended in mistrial, that there was significant conflict between the testimony of Sheets and the testimony of her roommate, the accuser, the appellate panel noted. Demain, the court wrote, was “not an irrelevant bystander. Rather, he was present at two crucial events where the evidence is sharply conflicting.”

As a result, the judges wrote, it was “essential” to find Demain and interview him before deciding on a strategy not to call witnesses.

Hope for Henley

After hearing of Adams’s success, Henley was adamant: Because the facts of his case were virtually the same as Adams’s, his conviction, too, should be overturned.

With the time limit long past for federal relief, Findley and his colleagues agreed to turn back to the trial judge, Erwin, and ask her to overturn Henley’s conviction in the interest of justice.

On Jan. 25, 2008, Erwin did just that. It could not be denied, she wrote, that Demain was just as critical a witness for Henley as for Adams. As a result, her decision states, “The issue of consent, the real controversy, was not fully tried.”

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Kori-Marie Henley (left), Krystina Henley, Dimitri Henley, and Dimi-Kristina Henley in their South Holland, Ill. home. (Photo by Gabrielle Morris)

For Henley, it seemed an unshackled life—the kind his co-defendants enjoyed—was finally in store.

While released on bail and awaiting a new trial, he found a job through a temp service, sorting through garbage for recyclables. He met Krystina, the woman who would soon become his wife, and together they began the process of buying a home.

But in 2010, things took one more dramatic turn for Henley. Taking up an appeal filed by the prosecutors, the Wisconsin Supreme Court ruled 4-3 that Erwin lacked the power to grant a new trial for Henley in the interest of justice.

Findley called Henley with the news. “It was devastating,” Henley recalled. “It was devastating to me; it was devastating to my wife.”

“That was the first and only time I ever saw Dimitri cry,” Krystina Henley said. “It was almost like he went back to prison in his mind.”

Findley turned back to the trial judge and persuaded Erwin at least to modify the sentence so that Henley did not have to return to prison. But he was required, even with the reduced sentence that Erwin granted, to register as a sex offender.

“I have never seen anything like this before,” Findley said. “I have never seen a case where there are three co-defendants charged with exactly the same crime, based on exactly the same evidence, with exactly the same degree of alleged culpability, and you wind up with one guy who is never convicted; one guy who’s convicted, sentenced to prison for a while but then he gets exonerated; and a third guy who, essentially because of technicalities in the law, is prohibited from pursuing that same relief.”

Reflecting on Henley’s case, his appellate lawyer, Patricia A. FitzGerald, said it illustrates a deeper issue within the American justice system: that the avenues available for reviewing a case are too narrow, making winning an appeal a near-impossible feat.

“I think the system screws up a lot,” she said in a recent interview. “Way more than we want to believe.”

Black suspects, white accuser

Adams, Henley, and Hill are black. The accuser is white. Adams recalled the jury that sealed his and Henley’s fate: All the jurors, including the alternates, were white, he said.

Sheets, in an interview, described the segregation at UW-Whitewater, recalling the all-white campus police department and a dorm occupied primarily by African American students commonly referred to as the “Black Dorm.” “It was like almost all of the black people that we knew lived in that dorm and the campus was definitely, at that time, more white than anything else,” Sheets said.

Sheets said that much of what she knew about the case was based on what she learned from her roommate and campus police. Based on that, she said, her initial reaction was, “‘Alright, well, if they did it and they got convicted, then I guess justice is served,’” Sheets said.

As she began to learn more about the case, Sheets said she began to increasingly believe that race and class impacted the outcome. “I definitely wonder if their race has something to do with the whole outcome,” she said. She also wondered to what degree the outcome was impacted by the fact that neither Adams nor Henley could afford to hire attorneys; and that their attorneys had failed to do the work to track down Demain and evaluate his importance to the case.

Adams, too, said he believed that racial dynamics were an important factor that the attorneys should have considered before deciding to present no defense to the all-white jury.

“When it was 11-1 in favor of acquittal, that was a telling sign, right?,” he asked recently of the retrial in Hill’s separate case, even after Demain was called as a witness. “Because you still had that one individual for whatever reason that was just like, ‘Nope, not going to believe that this girl wanted to have sex with these black guys,’” Adams told Injustice Watch.

“We need to remove ‘justice’ from what we call this thing. Because it’s not the criminal justice system. Justice has nothing to do with this at all,” Adams said. “If it wasn’t black and brown people, this criminal justice system would be eating up all of the poor people. Look at it: Three people, two with public defenders, one with a paid attorney, who never spent a day in prison?”

Justice for some

Henley isn’t fond of Halloween. He doesn’t like leaving his South Holland, Ill., home for extended periods of time, nor does he enjoy the days leading up to Christmas.

In all of these instances, the 37-year-old is reminded of his status as a registered sex offender and why, unlike the two friends with whom he visited UW-Whitewater in 1998, he is barred from handing out candy on October 31, is required to report to the local police department of the towns he visits for more than three days, and must permit authorities to search his residence every winter in order to confirm he lives there.

“I shut down,” Henley said. It is something he feels guilty doing in front of his wife and his children, Kori-Marie, 1, and Dimi-Kristina, 2, to whom Adams is a godfather. “I’m still carrying the weight of [Adams’s and Hill’s] convictions. All accounts. It doesn’t make any sense at all.”

Jarrett Adams (top right) stands on stage at the Power of a Dream Gala in Washington, D.C. (Photo: Jim Asher)

Jarrett Adams (top right) smiles on stage at the Power of a Dream Gala in Washington, D.C. (Photo by Jim Asher)

Last week, as Adams was honored at the formal dinner of the Power of a Dream Gala in Washington, D.C., Henley was at home working on remodeling the house he plans to put on the market.

The thought of moving, which Henley hopes to do in order for his daughters to attend better schools, brings up specific anxieties for Henley: He will have to register again with the local police as a sex offender and possibly get district approval to pick up his daughters from school. Concerns like these cross his mind daily, causing him to wonder why, in spite of the same evidence, his life turned out so differently from those of the men he stood trial with.

“Jarrett is living his life. Rovaughn is living his life. I’m not mad about that, and they deserve it,” Henley said. “I think I deserve to be free as well. But here I am.”

(Washington editor Jim Asher contributed to this report)

 

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