Justice Delayed

Justice Delayed

Phillip Thurman was jailed 20 years for a crime he did not commit.

On Dec. 30, 1985, Phillip Thurman was celebrating an early new year with his brother and several friends at the old American Legion Hall on North Fayette Street. At the club, he met up with some female friends. They danced and had several drinks, closing down the club well past 3 a.m. After leaving the American Legion Hall, Thurman and Natalie Davis visited with friends on Queen Street, and — with dawn approaching — they decided to go home. Davis planned to walk from the Inner City to Arlandria, where she lived at the time. Thurman decided to walk her home.

“I am not going to let you walk by yourself because I know how this neighborhood is,” Thurman later recalled saying.

But it was the worst mistake of his life, putting him in the wrong place at the wrong time. It landed him in the midst of an early morning dragnet to catch a criminal — a one-man lineup that misidentified him as the only suspect for a brutal rape of a 37-year-old Arlandria woman that had occurred moments earlier.

“One police car pulled in front of me and kept going and made a U-turn,” Thurman testified in the 1985 trial. “I looked back to see where he was going and I know he was going to stop me.”

Thurman was stopped and told to stand next to the police cruiser. Meanwhile, the rape victim and an eyewitness arrived in another cruiser, which turned its “ally light” toward Thurman.

“It shined its bright light, and I couldn’t see what happened,” he testified. “Then, this car, you know, just stood there for about two or three minutes.”

<b>NO OTHER SUSPECTS</b> ever appeared in a lineup. With the bright light shining on Thurman and police officers standing next to him, he was identified as the only suspect. The victim and an eyewitness pointed to Thurman and said that he was responsible for the rape. Their identification — in addition to the fact that Thurman had Type A blood — was enough to persuade a jury to find him guilty of a crime he did not commit.

At the trial, forensic scientist Mary Jane Burton used crime-scene evidence to determine that the rapist had Type A blood, a method of criminology known as “serology.” Assistant Commonwealth Attorney Constance Frogale, now an Alexandria judge, used Burton’s testimony as the crucial piece of evidence that was needed to convict Thurman.

“She steadfastly explained in detail what exactly it was she was looking for: secretions,” Frogale said during the trial’s closing arguments. “She found secretions and the seminal fluid, spermatozoa. And what type was it? A. Who secretes it? Type A. What is Phillip Thurman? He is Type A.”

Thurman’s lawyer, a court-appointed defense attorney, pointed out that about 40 percent of the general population has Type A blood. He also tried to make an issue of the way Thurman was identified. In his closing arguments, Thomas Bepko argued that the “show-up identification” wasn’t fair, pressuring a traumatized woman to find justice — however imperfect.

“Look at the suggestive way in which the identification was made,” Bepko said. “It was made with two police officers flanking Mr. Thurman on Glebe Road.”

Ultimately, the jury convicted Thurman of a crime that he did not commit.

“I was convinced that he was the guilty party — obviously I was wrong,” said Patrick Kennedy, who was the foreman of the 1985 jury. Kennedy, who still lives in Alexandria, spoke to a reporter by phone on Jan. 2 this week. “I’m sorry to hear that the jury made the wrong decision in this case. It’s very unfortunate.”

A circuit court judge sentenced Thurman to 31 years in prison. But Burton’s forensic evidence was not discarded. It became part of a stockpile of hundreds of cases — a carefully compiled dossier of case notes that contained biological evidence spanning 15 years. From 1973 to 1988, Burton quietly compiled samples that might one day be helpful in determining justice.

<b>NOW, WITH DNA EVIDENCE</b> routinely used to prove the innocence of prisoners, Gov. Mark Warner decided to dig into Burton’s case files. An initial sample of 31 cases unearthed two wrongfully convicted cases. This prompted two official pardons and another round of DNA testing — with the goal of systematically examining thousands of Burton’s case files. But prisoners’ rights advocates say that these cases may only be the tip of the iceberg.

“Two out of 31? How do you like your chances of being wrongly convicted?” asked Keith DeBlasio, legislative liaison for Virginia C.U.R.E., a nonprofit organization that advocates for the rights of the incarcerated. “We are still a society that looks for revenge. It makes people feel better to close a case and convict somebody.”

The “show-up identification,” a controversial method that is still used by Alexandria police officers, is a key factor that contributed to the wrongful conviction. With victims eager to bring a sense of closure to their traumatic experience, hastily formed one-man lineups can be prelude to disaster, say defense attorneys and others.

“The suggestive way that these identifications are made certainly attacks their credibility,” said Del. Brian Moran (D-46), a former prosecutor. “It’s certainly not a very reliable way to make an identification.”

Groups such as the National Legal Aid and Defender Association, the Innocence Project and defense attorneys have been clamoring for reform for years. Last year, Moran worked with other members of the General Assembly to pass a bill to offer potential solutions to the problems inherent in show-up identifications.

<b>THE BILL</b> — known in the General Assembly as HB 2632 and SB 1164 — was originally proposed by the Virginia State Crime Commission. It requires arrested people's photographs to be sent to the Central Criminal Records Exchange. It also requires law-enforcement agencies to “establish a written policy and procedure for conducting in-person and photographic lineups.” The bill passed during the 2005 session. The requirements became effective Jan. 1, 2006.

While no standards are mentioned in the legislation, the commission has proposed model standards be developed in concert with the Department of Criminal Justice Services. One model that Moran thinks might prevent wrongful convictions is the use of “blind sequential identification.” This method includes using a detective who was not involved in investigating the case, to present suspects in a sequence instead of all at once.

“When a rape victim sees six photos, she’s going to pick one of them,” Moran said. “But if she doesn’t know how many she’s going to see — and she sees them in a sequence instead of all at once — we’re more likely to get a valid identification.”

But police officers and prosecutors say that show-up identifications are crucial to the day-to-day work of crime fighting.

“It has long been recognized by the court as being appropriate,” said Commonwealth Attorney Randy Sengel. “Clearly, the police conduct show-up identifications according to procedure they are trained to follow.”

Sengel said that it’s not possible to get a five-man lineup at 5 a.m., for example, when the 1985 rape occurred.

“Well why can’t they wait until 6 a.m. — or the next day?” asked Sen. Patsy Ticer (D-30). “I see no reason why they have to have a lineup immediately following the crime.”

For Thurman, the show-up identification and the serology evidence was enough to secure a conviction. He spent a generation in prison, being released on parole only after serving 20 years of his 31-year sentence. It wasn’t until Gov. Warner’s review of Burton’s case file that forensic analysts proved his innocence — with the formal exoneration being announced in December.

<b>THURMAN WAS BORN</b> in 1954, the sixth of seven children. His father was a plumber and his mother was a homemaker. He dropped out during his 9th-grade year, taking short-term jobs as a laborer. But trouble soon followed.

When he was 20, Thurman was convicted of participating in an armed robbery. He was sentenced to eight years’ probation, a sentence that was revoked in 1976 when he continually missed appointments with his parole officer.

He spent three years in prison for violating his parole and for a 1978 burglary charge. By the time he got out of prison on Aug. 5, 1983, Thurman was a changed man. He was determined to turn his life around and stay out of trouble. His case file was closed on March 28, 1984.

"Suspect claims to have turned his life around,'” one court document dryly noted.

Nine months later, Thurman would appear in the show-up identification that wrongly identified him as a rapist. Throughout the trial, Thurman maintained his innocence. But prosecutors and jurors were not convinced. A report from two of Thurman’s probation officers put the matter rather bluntly.

“'He vehemently denies all involvement of these offenses,'” they wrote. “'Subject appears to be unconvinced that crime doesn’t pay.'”

After the conviction, Thurman sent a hand-written letter to Judge Donald Haddock, who presided over the circuit court trial. Again, he denied committing the crime — criticizing the police investigation and the jury’s willingness to convict him on scant evidence.

“I truly do think that the police went about their investigation all wrong and that they case was truly mishandled,” Thurman wrote in a letter that was postmarked July 10, 1985, adding that he felt members of the jury looked down on him for having a court-appointed defense attorney. “I truly do feel that they, the jury, were prejudiced against me for being an indigent.”

Thurman pleaded with the judge to help him find justice — and for the woman who was raped as well. But justice was delayed for Thurman, who interpreted the wrongful conviction as a form of persecution.

“Please deliver me from the hands of my enemies,” Thurman wrote to Haddock.

<b>AFTER BEING TURNED DOWN</b> for parole 12 times, Thurman was released on Nov. 17, 2004. Since that time, he has been very busy. He married his longtime fiancée, Diane Jordan, in May. They were dating before the 1985 arrest, and she stuck with him during his time in jail — exchanging frequent letters and offering a sense of hope to Thurman at a time when parole officers were complaining that he wasn’t showing remorse for a crime he did not commit.

Though the city’s JobLink program, he has received certification to work as a fiber-optic specialist. But his wrongful conviction has created a stumbling block for potential employers, even after the governor’s exoneration.

“He’s still suffering the consequences of this,” said Jim Clark, his lawyer. “It’s scary to think that the system worked the way that it was designed to work, and this injustice still occurred.”

Clark is seeking compensation for Thurman from the General Assembly. He has been talking to members of the local delegation about sponsoring a special bill during the upcoming legislative session.

“We’ve got nothing but positive responses from everybody we’ve talked to,” Clark said, adding that nothing has been filed in Richmond yet. “There’s really no model for this case.”

Despite being imprisoned for 20 years for the crime, Thurman refuses to become embittered about his experience. He said an abiding faith in God and the unconditional love of his longtime fiancée got him through the tough times since 1985.

“I’m not bitter — I was never bitter," Thurman said. “I was dealt a bad hand, but I still believe in the system.”

These days, Thurman is an active member of Harvest Baptist Church in Fairfax County. He is studying to get his high school diploma, and he is hoping to find work as a fiber-optic specialist. He wants to move on with his life, repairing the family relationships that were denied by 20 years of incarceration.

“Mostly, I’m thankful,” he said. “I’m thankful to be able to spend time with my wife and my grandchildren.”