In a tense, crowded room inside Nashville’s Riverbend Maximum Security Institution, Claude Garrett sat before a large TV monitor and stared at the screen. Behind him, a crowd of people gathered before a long conference table. Garrett wore prison-issued blue jeans, glasses, and a serious expression. Looking back at him on the screen was Richard Montgomery, chair of the Tennessee Board of Probation and Parole. Soon he would say whether Garrett should be released or remain in prison.
It was a Monday in October 2018. The hearing had started at 10:30 a.m. “Mr. Garrett, what is your inmate number, sir?” Montgomery asked. Garrett recited it: #225779. “You were born on November 17, 1956, and you’re 61 years old?” Yes, Garrett said. Montgomery thanked everyone in attendance. “The more testimony we hear, the more facts we hear from each and every one of you, the better decision we can make,” he said.
Montgomery summarized Garrett’s record dating back to the 1970s: a handful of misdemeanors, followed by felonies, the most serious of which were some burglaries in Indiana. He then reviewed Garrett’s disciplinary write-ups in prison. There were only five, total. Four dated back to the mid-’90s. Finally, Montgomery asked the question Garrett had been pondering for more than 25 years.
“Tell me, on February 24, 1992, what happened?”
Garrett told the story as he had countless times. How he and his girlfriend, Lorie Lee Lance, had been out drinking at a local bar the night before; how they came home late and dozed off in the living room, then moved to their bedroom. “Sometime later I was woken up,” Garrett said. “I don’t know what woke me up. I recall looking into the living room and seeing a light flickering on the wall.” It was a fire. “I yelled at Lorie. She got up behind me and I had ahold of her wrist. We went toward the front door, which was to the right of our bedroom.” But then Lance “pulled back,” Garrett said. “She didn’t follow me through the door.”
Lance was later found in a utility room toward the back of the house. She died from smoke inhalation. The next year, Garrett went on trial for her murder. Jurors did not believe his story. They believed what prosecutors said: that Garrett had locked Lance in the back room and poured kerosene throughout the house. The state’s case was shaky — in fact, Garrett won a new trial after he discovered that prosecutors had concealed a police report showing the door in question had actually been found unlocked. Nevertheless, in 2003, a jury convicted him again.
For more than 25 years, Garrett has maintained his innocence. He has also gained the support of numerous people on the outside, who wrote letters to the board on his behalf. His most vocal advocate is a veteran fire investigator, Stuart Bayne, the defense expert at his 2003 retrial. A tall man with a formal air, Bayne was one of four supporters who spoke at the hearing. He wore a dark suit and carried prepared remarks. “As a representative of the fire investigation community, I owe allegiance to only one thing, and that is the truth,” Bayne began. Garrett’s conviction was “fundamentally unjust,” he said — and there was scientific evidence to prove it.
Like all fire investigators of his generation, Bayne explained, he had lived through a sea change that began in the 1980s. Until then, “I believed in arson pattern indicators that have since then been proven untrue,” he said. In 1992, the same year as the fire in Garrett’s case, the National Fire Protection Association published “NFPA 921,” a groundbreaking guide that would transform the field. Rather than rely on instinct, experience, and visual interpretations of fire scenes, it held that fire investigators should follow the scientific method: using all evidence from a scene to test a hypothesis before making a determination about a fire’s origin and cause.
The investigators in Garrett’s case had done no such thing. Instead, they discarded the furniture and other contents of the house and zeroed in on false indicators. At trial, the state’s key witness, James Cooper, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, swore by “pour patterns” on the floor, which supposedly proved an accelerant had been spread throughout the home. He continued to insist upon the evidence at the 2003 retrial, despite the fact that “pour patterns” were widely understood to be unreliable junk science by then. To Bayne’s distress, Garrett’s retrial attorney took him off the stand before he could explain the vast changes in fire investigation over the previous decade.
In the weeks before the October parole hearing, Bayne had mailed each parole board member a set of reports. “The information I sent you are the result of systemic analysis of the fire,” he told Montgomery. One report came from renowned fire scientist John Lentini, who first reviewed Garrett’s case in 2010 and concluded it was based on junk science. Another came from a group of international fire experts called the Tetrahedron Committee, who also found that the arson determination in Garrett’s case was fatally flawed. “Today’s fire investigation standards reject the non-scientific methods used at the Lance-Garrett fire in 1992,” Bayne explained. It was not the kind of evidence parole boards usually hear. But Bayne urged Montgomery to consider it.
Opposing Garrett’s release were members of Lance’s family. In emotional statements, they described Garrett as an abuser who had killed Lance because she planned to leave him. The family shared stories of his volatile behavior that they also told me when I first investigated the case, for an article published in 2015. “He’s conned every one of these people in this room,” Lance’s younger sister, Hayley, said. They were not swayed by the explanation of outdated fire investigations. “All this about the junk science, that may be true in some cases,” Lance’s aunt said. But not in this one.
Just before noon, it came time for Montgomery to announce his decision. “The board does not try cases,” he said. “We do not determine whether a person is innocent or guilty.” What mattered now was that Garrett had served the sentence required by the state of Tennessee. “I look at your record and I see a person that is trying to improve his life,” Montgomery told Garrett. His vote would be for Garrett to be released in March 2019.
Garrett was stunned. But the outcome was still far from certain — he needed three more votes in his favor for release. Montgomery said the board members would make their decision within 7 to 10 days.
About a week later, Garrett got the news. The board had denied his parole application. He won’t have another chance until 2022.
“I’m disappointed but not discouraged,” Garrett told me a few weeks later. It is rare for anyone to get paroled their 1st time before the board, he said. In fact, compared to many people in his position, Garrett was lucky to face the parole board at all. Not long after he was convicted, legislators doubled the amount of time lifers with parole eligibility in Tennessee had to serve before their first hearing, from 25 to 51 years.
For Bayne, however, the denial was an intolerable blow. In a six-page letter last November, he urged the board to reconsider its decision. He reminded members of the seven flash drives he had sent them earlier that fall, which included affidavits and reports from leading fire experts. “There are reputable fire investigators/scientists who are trying to tell you that this whole matter is fundamentally unjust,” Bayne wrote. He did not hear back.
February 24 marks the 27th year since the fire that took Lance’s life and sent Garrett to prison. As he continues to fight his conviction, Garrett is trapped in a kind of paradox. Even as decades of scientific advancements have debunked old forensic techniques and provided more tools to identify wrongful convictions, the legal architecture that surrounds him has made it harder to win relief. The same tough-on-crime era that gave rise to the Antiterrorism and Effective Death Penalty Act — which has shut defendants out of court even when they have compelling innocence claims — brought a wave of state-level reforms shortly after Garrett was first convicted. In 1995, Tennessee Gov. Don Sundquist signed sweeping legislation “designed to make convicting criminals easier and keep them in prison longer,” as The Tennessean reported at the time.
The tough-on-crime overhaul included major revisions to the state’s Post-Conviction Procedures Act, imposing a one-year deadline for people to challenge their convictions in state court. While in theory it also included a safeguard to address wrongful convictions — allowing for the reopening of a state post-conviction petition based on new scientific evidence — the limitations were rigid. In 2017, Garrett filed such a motion in state court, based on the reports of Lentini and the Tetrahedron Committee. Prosecutors protested on several grounds: The motion had been filed too late; it revealed no new evidence; and it did not prove Garrett’s “actual innocence” as required by the law. The court swiftly ruled for the state.
Today, Garrett is nearly out of legal options. Yet there is a key avenue that could provide a way out. In 2016, Davidson County Attorney General Glenn Funk announced the launch of a conviction review unit. Modeled partly on the Brooklyn District Attorney’s groundbreaking CRU, it was supposed to provide a chance for people like Garrett to have their cases re-examined and possibly get exonerated — at least in theory. But while the Brooklyn unit has led to 24 exonerations in the past five years, similar units across the country have proven ineffective. In Arizona, the Pima County Conviction Integrity Unit has done nothing to intervene in the case of Barry Jones, even after his conviction was overturned last summer. In Ohio, where prosecutors used junk science to convict Angela Garcia for a fire that killed her two daughters, the Cuyahoga County Conviction Integrity Unit rejected Garcia’s application on its face. Garcia later pleaded guilty to arson in exchange for a reduction in her sentence.
Until very recently, the Davidson County CRU had shown similarly meager results. In January, Nashville Public Radio released the results of a two-year investigation into the office. It revealed that while 38 cases had been submitted to the unit for review, not a single one had been ordered to be reinvestigated. Part of the problem was the structure of the unit. Cases were screened by a seven-member panel of prosecutors, which bred inevitable intransigence. As Nashville defense attorney Daniel Horwitz pointed out, it also created conflicts of interest; in the case of his client Joseph Webster, whose application was rejected in July 2018, the panel included the same prosecutor who sent Webster to prison in the first place.
The attorney general’s office announced an overhaul of the unit’s protocol. On February 8, news broke that the CRU would take on the Webster case after all, the first to move forward since Funk launched the unit. All of this is potentially good news for Garrett. But there is one major obstacle keeping him from applying. The unit’s rules dictate that it “will not consider requests for review while any appeal, petition, or writ is pending in court.” For Garrett, whose federal appeal has been winding its way through the courts since 2013, it is a wait he can ill afford.
Although Davidson County is not unique in this requirement, it’s not even clear why it exists. “As a general rule, we stay out of it while it’s in the courts,” Assistant Attorney General Robert Jones, who leads the unit, explained over the phone earlier this month. But he insisted that such language would not foreclose on a deserving application. He pointed to the next line in the unit’s protocol: “The CRU retains the discretion to review the case if it is in the interest of justice.” If there is compelling evidence of innocence, he said, “we’re not gonna sit here for years and wait for the case to go through the courts.”
Even so, the language of the unit’s official protocol suggests the bar for relief will be high. In order for the CRU to recommend that a conviction be vacated, an applicant must show “clear and convincing evidence” of “actual innocence,” as defined by the Tennessee Supreme Court. In a case like Garrett’s, where the physical evidence was discarded almost immediately, there is no new testing that can establish such clear proof of his innocence, let alone something like DNA.
If there is one thing that might help Garrett between now and whenever he submits his case for review, it would be a willingness on the part of the state’s main expert to admit he was wrong, at least in his methodology, which would never pass muster today. But until now, this has proven impossible. When I went to see Cooper last year, he defended his work and refused to consider the reports by Lentini or the Tetrahedron Committee. Although he backed away from certain evidence he once emphasized on the stand, he reiterated his belief in Garrett’s guilt and reminded me of a crucial piece of evidence: the lock on the utility room door. “That was key,” he said.
In fact, there have always been reasons to doubt that the door was locked. There was the police report that was withheld from Garrett’s defense at the first trial, in which Fire Captain Otis Jenkins said that the door was unlocked. But even without this, Jenkins — the only firefighter who directly testified to this critical piece of evidence — never had the most convincing recollections. At Garrett’s first trial in 1993, he testified that he had to “turn and move a knob to get the door open,” even though the door had no knob. Was it possible the door was “just jammed”? Garrett’s attorney asked. “I wouldn’t rule that out,” Jenkins said, but he insisted he was almost certain the door was locked. At the 2003 retrial, Jenkins testified that he “shuffled something or did something to make the door open,” but he could not recall what.
In court rulings upholding Garrett’s conviction, reviewing judges have relied on Cooper’s recounting of what Jenkins supposedly told him: that he “had to use 2 hands to slide the bolt on the latch to the other side to open the door.” But at the retrial, Jenkins said he did not even remember Cooper. In its 2016 report on the fire, the Tetrahedron Committee found that his testimony should be “viewed very skeptically.” For one, there was the “near-zero visibility, high heat, and confusion” of a fire scenario. Then there was the fact that firefighting gloves are designed for protection and not conducive to operating a latch as small as the one on the door. “The difficulties of opening a latch in firefighting gloves was never addressed and demonstrated at trial,” the report noted. Finally, it flagged the exculpatory statement attributed to Jenkins and withheld by the state at the first trial: that the door was unlocked. “Given what we know from memory research, the original recollection is the most credible source [of] information,” the experts said. “That is not to say that Capt. Jenkins was knowingly lying about the latch position. However, we must be cognizant of the effect of potential suggestion by investigators and prosecutors on a witness’s recollection.”
Jenkins, who is long since retired, has not responded to numerous messages or a note left at his home. Nor has he acknowledged the expert reports from Lentini and the Tetrahedron Committee, which I mailed to him last fall. While there is no reason his memory would be sharper decades after the fire, there is very good reason to revisit the question of the door. Should the CRU eventually take up the case, it would do well to consider a key finding in Lentini’s report, one that only recently reminded me of something Garrett told me years ago: the reason he bought the cheap latch in the first place was because the door had a tendency to swing open. A photo included in Lentini’s report shows heavy smoke deposits on the edge of the door — the part that would presumably have been shielded by the door frame had it been closed during the fire. Garrett’s conviction rests on the claim that he locked Lance inside that room and left her to die. But the smoke deposits debunked this, according to Lentini. Not only was the door unlocked, he wrote, “it was not even closed.”
Source: theintercept.com, Liliana Segura, February 24, 2019
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde