Terry Williams case: Score one for justice

Justice was served in Philadelphia the other day, at least temporarily.

In a three-day hearing before Common Pleas Judge M. Teresa Sarmina, dramatic new evidence was presented in the case of Terry Williams, convicted of first-degree murder in the 1984 slaying of Amos Norwood and sentenced to death by a Philadelphia jury.

Williams's case had wound its way through the courts. An evidentiary hearing in 1998 had offered new arguments on his behalf. The courts, unimpressed, had reaffirmed his sentence. The truth lay locked up in concealed documents, and in the breast of Williams's confessed accomplice, Marc Draper, who had testified against Williams in return for a second-degree murder plea.

Without Draper's new testimony, those documents would have remained sealed forever. Terry Williams's execution, scheduled for October 3, would almost certainly have been carried out.

Getting Draper's testimony to court, however, required a judge willing to hear it. With three weeks to go before the execution date, Judge Sarmina granted it. She allocated six hours for testimony and argument on September 20. The hearing lasted three days.

Startling testimony

Three days later, based on what she (as well as a packed courtroom) had heard, Sarmina granted a stay of execution. She also vacated Williams' death sentence and ordered a new penalty hearing for him.

What Draper said was startling. He withdrew his own confession of guilt, in which he'd admitted participating in the murder of Norwood. He also recanted the robbery motive he'd attributed to Williams and himself, which had been crucial to the construction of the prosecution's argument for a death sentence.

Instead, Draper said, Williams— 18 years old at the time of the crime— had murdered Norwood after having been sexually abused by Norwood for years.

Several questions obviously arise. Why had Draper confessed to a crime he hadn't committed? Why hadn't he told the police of Williams's relationship to Norwood? Why hadn't Williams himself mentioned the relationship in his own defense? Why had Draper misrepresented the crime as having been motivated by burglary? And why had Draper waited until the last minute to change his testimony?

Story brushed aside

The answers to these questions, as Draper gave them on the witness stand, were singularly damning. He was clearly implicated in the crime; he had been with Williams and Norwood on the murder night and had gone on a spending spree with the victim's credit card. He was threatened with a death sentence himself. He was also told he would be set up for another, unrelated (and still unsolved) homicide if he failed to cooperate. Terrified, Draper gave in.

Draper testified that he had tried to tell Philadelphia Detective Steve Rosenstein that Norwood's murder was a "sex crime." Rosenstein allegedly brushed this aside and insisted on the robbery motive instead. Draper concocted a story to that effect, placing himself at the murder scene and admitting to participating in the homicide.

Why didn't Williams or his court-appointed attorney, Nick Panarella, rebut this testimony at trial? Williams denied the crime altogether, attributing it to others. He would thus have concealed his relationship to Norwood, as well as a personal history of sexual abuse that went back to the age of six.

One day to prepare

Attorney Panarella, given the case a week before trial, hadn't met his client until the day before it— a not uncommon circumstance in capital trials with a public defender. Panarella nonetheless suspected a sexual connection in the case, because Williams had previously been convicted of killing another predatory male lover, Herbert Hamilton. Williams's insistence on his innocence, however, precluded Panarella from developing such an argument.

As for Draper's long silence— he agreed to break that only last January, when Federal defenders' attorneys told him that Williams's appeals had been exhausted, and that he would be executed unless Draper corroborated the relationship with Norwood and gave truthful testimony about the circumstances of his plea agreement.

Such testimony wouldn't necessarily be in Draper's interest, because he was serving a life sentence himself and would hurt his parole chances by telling his story. Draper himself stated that he had withheld his testimony for so long because he was "angry" at the injustice of his own sentence. He could not, however, now have Williams's death on his conscience.

Cover-up and coercion

I found the testimony of Draper, a soft-spoken, intelligent man clearly nervous on the stand, to be credible, and so did Judge Sarmina. To my ear it contained discrepancies and lacunae, but the burden of it seemed truthful, and it was corroborated by other facts.

The picture it painted of cover-up, conspiracy and coercion was, needless to say, not pretty. Draper might, of course, have been seeking to reopen his own case by coming forward on Williams's behalf, since Williams was the only witness who could exculpate him. But that would be a gamble; and if Draper's testimony were not believed and Williams were executed, his slender parole chances would in all likelihood be extinguished.

Draper's affidavit was sufficient to induce Sarmina to grant a hearing; it wouldn't be sufficient on its own for her to issue a stay. As Sarmina pointed out, recantations are treated with skepticism by the courts and given low evidentiary value in themselves.

Smiling prosecutor

The critical witness for the defense was the Philadelphia trial prosecutor herself, Andrea Foulkes, who is now a federal prosecutor. Her testimony, which preceded Draper's, was the key to answering the most obviously troubling question of all: Why had Foulkes, who had prosecuted Williams in the Hamilton case and was thus aware of his sexual history, not considered a similar motive in the case of a similar victim?

On the stand, Foulkes was a smiling, deferential witness who seemed as innocently anxious for the truth as a librarian searching for a lost call slip. Yes, she admitted, the possible connections between the two murders had occurred to her, but she could not find— her words— "a scintilla of evidence" linking them.

The defense, however, had successfully subpoenaed records concealed from Williams's lawyers, including Foulkes's own personal memoranda of the case, in which she noted that it had been referred to the Police Department's "fag squad." The concealed records clearly indicated police awareness of Williams's possible sexual motivation, and that they had gleaned from Norwood's widow and pastor that he was a likely sexual predator.

Sanitized references

Even such materials as had been previously disclosed to the defense had been, as Sarmina concluded, "sanitized" to remove any reference to Norwood's documented behavior. Foulkes's notes showed her cognizance of this evidence. Additionally, she had stricken a juror from the pool who confessed to a history of sexual abuse.

Yet at the penalty phase of the trial, Foulkes had affirmed that Norwood had been a wholly innocent victim who had been killed "for no other reason" than his kindness in offering two strangers a lift in his car. Without mitigating circumstances, the jury found for death.

Sarmina noted that Foulkes had sought a first-degree conviction in the earlier Hamilton murder case, but had to settle for a third-degree verdict. The Norwood trial offered her a second bite at the apple. In the scalp-happy Philadelphia District Attorney's Office of the 1980s, an ambitious young prosecutor wouldn't want a second failure on her resumé. Foulkes got her man, and in due course moved up into the federal system.

"'Exemplary professional'

Judge Sarmina didn't mince words. Whether willfully or inadvertently, the concealment of material evidence was grounds for a stay, and the preponderance of evidence suggested that the concealment had been "closer" to willful than otherwise. Foulkes had "played games" in court, had knowingly misled the trial jury in a matter of life or death, and had violated her "ethical responsibilities" as an officer of the court.

Even in her current testimony, the judge said, Foulkes had not been candid. It was as scathing a rebuke as a judge could deliver, short of calling for a criminal investigation.

Such an investigation would certainly be appropriate. But Foulkes's office issued an immediate statement on her behalf, calling her an exemplary professional with an unblemished record. And Philadelphia District Attorney Seth Williams, having taken the unusual— not to say ethically questionable— step of defending the Terry Williams case record in an op-ed piece in the Philadelphia Inquirer and calling for his execution to proceed, immediately filed an appeal of Sarmina's ruling.

DA's new direction

Terry Williams's case is only one of many from Pennsylvania's death row beginning to come to term, and it is a safe bet that its circumstances were not unique. Post-Rizzo Philadelphia was a judicial Wild West in many respects. Juries were routinely manipulated until the U.S. Supreme Court intervened. In the celebrated trials of Mumia Abu-Jamal and the alleged killers of Kimberly Ernest, the "Center City jogger," police invented "confessions" they didn't dare bring to court, but made sure to circulate. Witnesses were coerced and threatened there too, and evidence was concealed.

There was a reason why Philadelphia's capital sentencing rate in the 1980s was nearly four times that of, say, Harrisburg, and it isn't a pretty one. And now Chief Justice Ron Castille, who as district attorney supervised Foulkes, refuses to recuse himself in the Supreme Court hearing.

Seth Williams has said publicly that his office wishes to prosecute fewer cases more thoroughly— perhaps a politic way of saying less corruptly— than in the past. Reluctantly, he dropped a decade-long attempt to overturn the commutation of Mumia's death sentence. In the Terry Williams case, he has more than adequate political cover in the appeal of Amos Norwood's widow Mamie to spare Terry Williams' life, and in the recommendation of State Attorney General Linda L. Kelly for clemency.

Seth Williams's job now is to restore trust and confidence in the integrity of the district attorney's office. He's not responsible for the mistakes of the past. But defending the indefensible will make him a party to them.♦


To read a follow-up by Robert Zaller, click here.
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