Monday, September 15, 2008

The Innocent Man

This morning's Indianapolis Star brings a story of Sherman D. Allen, Jr. who went to bank to withdraw money and was given $200 from someone else's account with a very similar name. The Marion County Prosecutor's Office charged him with forgery and theft. Allen was acquitted and is now suing the bank for providing the information that led to his charge. In the article, bank officials were surprised that Allen had even been prosecuted over the matter, that the bank just considered it an insurance matter.

I can top that story by a country mile. A few years ago, I represented T.S., a mentally disabled man. His family was trying to give him some independence so they put him in an apartment on the eastside of Indianapolis. T.S. was often bored and nearly every day he'd walk over to the local video store just to look at the movie boxes.

In the May of 2006, the police came knocking at his door. They had come to arrest T.S. for robbery. The video store manager had called 911 claiming she was robbed by T.S. She told cops that she was leaving the store around 12:15 p.m. to take some of the cash and checks to the bank. Rather than go straight to her car, she decided to take some trash out behind the building to a dumpster (the only place outside where there was no video surveillance). She claimed T.S. jumped out from behind the dumpster and demanded the money she had concealed in her envelope.

The story on the surface was not credible. How did T.S. know she would come back to the dumpster? How did T.S. know she had money in the envelope? Why was she going to make a deposit at the bank in the middle of the day and taking the trash out first, both of which were violations of company policy? While she claimed T.S. had cased the store and cleverly plotted his crime, the fact is the man is mentally disabled and barely able to live on his own. No cash or checks were ever found. It was poor investigation work by IPD that should have been rejected out of hand by the Prosecutor's Office. But it wasn't. The Prosecutor's Office charged TS with felony robbery. His bond was $80,000. His family couldn't afford to bail him out. He, a disabled man, had to sit in jail.

But the story gets better. The day of the "robbery," T.S. and his brother had met to go out to lunch. I obtained phone records showing calls between the brother and T.S. leading to his noon pick-up to go to lunch. He had met his brother outside a drug store around noon. We obtained video from the drug store of T.S. getting picked up in their parking lot. Next we obtained video of him eating at a restaurant across town at about 12:20 p.m. After they left, they went to a Mike's Car Wash. T.S. got change there for his brother and was captured on the store's video camera at about 12:37.

It was impossible for him to have committed the crime. All the video information was presented to the Marion County Prosecutor's Office. Their response? Despite having the information, the Prosecutor's office still left him in jail ... for months. While at Jail #2, officials did not give him his psych meds and he started talking to himself. That upset other inmates and led to his getting beaten up.

Finally as the trial date neared, the Prosecutor's Office suddenly realized they didn't have a case against my client. They asked that he be released and shortly thereafter dropped the charges.

We asked that perjury charges be filed against the store manager. She had seen T.S. a hundred times before and accused him of robbing her in broad daylight. At a sentencing modification hearing, I had gotten her to testify he was the robber. When the prosecutor figured out, too late, why I was trying to get her to make the statement under oath, he abruptly asked for a recess. Apparently he thought the "victim" was his client and had to be protected from committing a crime.

The Prosecutor's Office would not file perjury or false reporting charges against the store manager, saying there was not enough evidence to bring charges. Yet they had no problem bringing felony robbery charges against my client based solely on one person's story which was filled with holes. The likely reason for the manager's story was that she had pocketed the money and fingered a person as the robber (who was unable to defend himself) to divert attention from her. It worked because with a suspect under arrest, the video store ceased any internal investigation which might have implicated the manager.

I talk to defense attorneys all the time who say that this Prosecutor's Office does a poor job of screening cases prior to filing charges and then won't dismiss charges when they know they don't have a case. While I don't do enough criminal law to draw that same conclusion, my experience with T.S.'s case suggess their observations are right on the money. Fortunately for T.S., he did go to lunch that day and we could prove it. I feel for those others wrongly accused who do not have video evidence of their innocence.


Anonymous said...

The look of this blog is much better and more readable. I like what I'm seeing here and hope you will keep blogging.

Paul K. Ogden said...

Thanks, Melyssa. I had a very helpful fellow blogger help me learn the ropes. Thanks. Paul