Framed

Last Night Out#3

The soldiers were stunned when Judge Wall issued her opinion in August 2014, one year after the hearing, denying the defendants a new trial.

In regard to the Yamacraw report, she ruled that “since Petitioners did not raise this allegation at trial and did not enumerate it as error on direct appeal, this claim is procedurally barred from consideration on the merits by this Court.”

This was nonsensical.

How could it have been used by the defense at the 1992 trial or in the direct appeal in 1993–94 when it was not known by the defense until 2010? The same objection applied to White’s inability to make a positive identification.

No one except law enforcement knew that until 2013.

By its very nature, a Brady violation is typically discovered at some point post-conviction.

The first legal break in the case came in November 2014 when the Georgia Supreme Court, in a 9–0 unanimous vote, quickly remanded it back to Judge Wall, instructing her to rule on the merits and materiality of the suppression of the Yamacraw report and White’s inability to make a positive identification.

But Wall again denied the soldiers, fifteen months later, in March 2016.

This time she ruled that the State did not suppress the Yamacraw report nor have a reason to turn it over to the defense because there was no indication that it had any connection to the murder of Jackson.

Regarding White, she did acknowledge that his identification of the petitioners as the shooters was an important part of the State’s case.

She also agreed that any information that detracted from the credibility of his trial testimony would be “potentially exculpatory evidence for the defense.”

But she discredited his recantation, and made no mention of Middleton’s testimony that White never made a positive identification of the soldiers throughout the investigation.

She omitted that pertinent fact, which was certainly exculpatory and detracted from the credibility of his trial testimony.

Naturally the defense appealed Judge Wall’s denial, turning again to the Georgia Supreme Court.

This time, on November 9, 2017, the soldiers received what they had sought for the last twenty-six years—justice and exoneration.

Overriding Judge Wall’s denial, again in a 9–0 decision, the court ruled that, “in light of the totality of circumstances, the outcome of the trial was undermined by the State’s failure to provide the Yamacraw report to the defense.”

It stated that the Yamacraw report “was evidence that others similar in appearance were threatening a racial attack similar to that suffered by Jackson,”

and that “if the jury had been presented with information that other persons, not the defendants, were in the area that same night to engage in racially motivated violence, the outcome of the trial might well have been different.”

In its opinion the Georgia Supreme Court also pointed out other exculpatory facts: namely, that the defendants were at a rehearsal dinner “over a 50-minute drive away”

from the 10:00 shooting until 9:15–9:30; and that the State’s case was “heavily dependent”

on White’s identification of the defendants, “but the investigators conducted no identification lineup, either in person or by photograph.

No murder weapon was ever recovered; no firearm was found in the defendant’s car, no casings from an automatic weapon were found there, and the forensic scientist who vacuumed the interior of the car looking for gunshot residue found none.”

These were indicators that the court, considering the same evidence presented to Judge Wall, had strong reservations concerning the soldiers’ guilt.

Wall’s decisions had egregiously delayed justice for four years.

The day for which the three men and their families had been waiting finally arrived.

On Wednesday, December 20, 2017, everyone gathered in the same, now renovated, Savannah courtroom in which the judge had sentenced the men to life in prison almost twenty-six years earlier.

Defendants whose convictions have been vacated by a higher court have a right to be released while they await the prosecution’s decision to retry them.

Legally speaking, at this point they stand indicted, not convicted.

As when originally arrested, however, they must have the financial ability to meet whatever bail the trial judge sets.

Among the attendees nervously sitting side by side in the courtroom were Mark’s mother, sixty-five-year-old Deborah McGill; Kenny’s seventy-six-year-old mother, Betty; and Dino’s seventy-eight-year-old father, Roger, and his uncle Burt.

All had driven great distances from Texas and Ohio.

All were hoping to take their sons home if the judge set a reasonable bond.

There was a gasp when the three defendants filed into the courtroom, handcuffed one behind the other in white jail jumpsuits, wearing ankle and waist chains.

Aged by the years of false imprisonment, they were unrecognizable.

They quietly took their seats next to Peter Camiel and Steve Sparger at the defense table.

You could hear a pin drop as everyone waited for the judge to take the bench.

Everyone was relieved and somewhat surprised when the prosecutor told the judge, “The State leaves the issue of bail entirely to the discretion of the court.”

That meant the DA was not going to take an adversarial position.

The men were halfway home.

Knowing that the families were unable to post a bond in an amount likely to be set by the judge, Centurion had arranged with a New York City benefactor to post a $100,000 bond—$33,000 per defendant.

If needed, he was on standby to immediately wire that amount of money to the Chatham County sheriff’s office.

When the judge set bail at $30,000 for each man, the benefactor sprang into action and wired the money, with the assurance that it would be returned to him once the case had concluded.

Excitement grew by the minute because all of us were now confident that the former soldiers would be released without restrictions before the end of the day, free to go home with their loved ones as they awaited the DA’s decision on whether to retry them.

And that’s exactly what happened.

Together they walked out of the Chatham County jail at 3:32 that afternoon wearing Centurion-provided T-shirts emblazoned with the words I Didn’t Do It.

Surrounded by a sea of supporters cheering loudly in the jail’s lobby, the first to greet them was Mark’s mother, Deborah, who hugged her son so tightly you couldn’t tell them apart.

Holding on to him for dear life, she exclaimed for all to hear, “Except for his birth, this is the greatest day of my life.”

Except for the birth part, that was how we all felt, too, as we took our turns to embrace the three, one by one, and record the moment with photographs.

The sheriff was kind enough to allow the three men to take over the jail lobby for this impromptu party.

That night we celebrated at the beautiful Savannah home of John Watts, Jr., Mark Jones’s former trial lawyer, who had worked hard alongside Centurion, assisting in our effort to free his former client.

Also celebrating that night were Dino’s trial lawyer, Bill Cox, and Kenny’s former attorney, John Watts, Sr.

All three had testified at the 2013 hearing.

Bill Cox brought tears to my eyes when he told Judge Wall, “I’ll go to my grave thinking these guys didn’t do this. I brush my teeth and think about them. I’ll never forget ’em.”

The next day everyone returned home.

It was going to be the first Christmas since 1991 that Mark, Kenny, and Dino could celebrate as free men, and with their families.

Now there was nothing more to be done except wait and see if the DA was going to retry them.

Even though their case had been eviscerated, a prosecutor might do anything in an attempt to save face.

It took seven months, but finally the DA announced she was not going to retry the former servicemen and would petition the judge to dismiss all charges and thus end the case against them.

On July 18, 2018, this was done.

The Sword of Damocles that had been hanging over their heads had finally been removed.

For the first time, they could breathe easily, secure in the knowledge that this interminable nightmare had really ended.

Now they could begin to start life all over and make their way in the free world.

Their new life, though, would be shaped by their life in prison.

All three had spent twenty-six years as model inmates with hardly any disciplinary write-ups.

This was extraordinary, practically unheard of, especially for such a long stretch of time.

As one of many examples, for several years Dino even worked as an assistant chef in Governor Sonny Perdue’s kitchen, and one year shared a Thanksgiving meal with the governor and his family.

What kept these men going all those years with no assurance they would ever get out? When this question was separately posed to each of them, all three had the same answer: their families’ rock-solid belief in their innocence and unwavering support and love, from the day of their arrest until the day of their freedom.

Mark had his devoted mother, Deborah McGill; his father died in 1995.

Kenny had his mother, Betty, and father, Carroll, who died in 2015.

Dominic had his father, Roger, and his uncle Burt; his mother, Gayle, died in 1995.

Without that support, they simply would not have survived, especially in the early years of imprisonment.

Hope was another friend, never constant but, like a flickering candle, refusing to be extinguished.

Kenny was more or less resigned to his fate until Centurion’s investigation started to pick up steam.

Then his hope came alive, only to fade again with Judge Wall’s denials.

The second Georgia Supreme Court decision allowed his hope for freedom to finally flourish.

For the first several years after the initial verdict, Dominic believed that the system would see the error of its ways and recognize their innocence.

He was convinced the courts would soon see the truth and correct their mistake.

The other thing that kept him going was a dream that, once that truth came out, he and his two friends would be the beneficiaries of a multimillion-dollar lawsuit.

It took some time before this illusion evaporated and reality set in.

And then the parole board kept denying his requests, giving him eight-year hitches until his next review; and the courts continued to deny his appeals .

Okay, he decided, that’s it, although he hadn’t completely given up.

It was his fighting spirit that impressed Centurion when he wrote us a second letter in 2003, saying, “You told me to come back in a couple of years.

It’s been a couple of years and this time I’m not taking no for an answer.

If McCloskey is retired send somebody else down here to help us out.”

But the two denials by Judge Wall were finally too much.

Dominic had decided to end his life by suffocation with a plastic bag if the Georgia Supreme Court also ruled against them.

If that happened, there would have been no way out, and he didn’t want to live for decades more with no hope of freedom.

Mark freely admits that, when his appeals were denied and parole was a dim prospect, he accepted his fate as an innocent man living and dying in prison.

Settling in with that mindset, he was determined to make the best of a bad situation by finding “comfort”

in the day-to-day prison routine through teaching and playing sports and board games.

That was how he chose to cope.

His hope was rekindled at the onset of the 2013 evidentiary hearing.

Although he had no confidence that Judge Wall would rule in his favor, after the strong hearing he did believe that the higher court would, especially when it sent the case back to her instructing her to rule on the merits with a unanimous 9–0 vote.

From 2013 until they were sent back to Savannah for the December 2017 bond hearing, Mark, Kenny, and Dominic were housed together, not only in the same prison, but in the same dormitory, one that was exclusively for veterans.

This made them feel safe and secure, knowing that they had each other’s back.

It also gave them a sense of confidence that maybe, just maybe, the wheel of justice was beginning to turn their way.

During those last four years they trained together as Braille transcribers to convert English text to Braille for the blind.

They were doing this until their transfer to the Chatham County jail.

Despite family and mutual support, twenty-six years of false imprisonment deeply affected the men.

Now in their fifties, finding gainful employment was a real challenge.

None had a job history or a marketable skill.

In completing an application, how were they to explain the twenty-six-year void in employment?

With some luck, and through the good offices of a local Cleveland Veterans Administration counselor, the VA hired Dino as a full-time telephone receptionist with full medical benefits.

He lives by himself in the house where he grew up.

Mark and Kenny share a four-bedroom house in Corpus Christi recently purchased by Mark.

Kenny pays him rent.

They are employed as Domino’s Pizza delivery drivers.

The men also suffered from a history of inept and poor medical attention while in prison.

Since his release, Mark was hospitalized for two months with a near fatal case of bacterial spinal meningitis, Covid, and double pneumonia.

He miraculously recovered, but with a loss of hearing in one ear.

Kenny suffers from arthritis in the ankles, knees, hips, and shoulders, which is worsening.

In addition to a recent diagnosis of diabetes, Dino has recently undergone a hernia and gallbladder operation.

All three suffer from PTSD.

Each has continuing nightmares about prison.

Kenny dreams he is either back in prison or going back; and once he is there he can’t get out.

Dino dreams that someone is coming to his cell to wake him up.

He has flashbacks that are triggered by a smell or a jingling of keys. In Mark’s dreams he is in his jail cell dreaming he has been exonerated, only to discover, while still in the dream, that his exoneration never happened. Knowing that it is completely irrational, Kenny and Dino still have it in the back of their minds that “the state of Georgia will come after them again.”

They can’t shake that fear.

They experience significant depression, anxiety, and stress levels generally, and particularly when meeting new people in unfamiliar settings.

Dino, who prior to his arrest was fun-loving and gregarious, now feels inadequate when trying to converse with people.

He says that prison “beat the ability to talk to people out of me.”

He despairs that his time away robbed him of having children and any kind of family life.

Kenny has always been rather shy and a bit of a loner, but those tendencies have noticeably increased.

Other than Mark, he has no friends.

Talking to someone he doesn’t know “ramps up”

his stress levels to the point that sometimes his “knees start to shake.”

He thinks it will be several years before he attempts to date again.

When not working, he stays home at night watching animation programs on TV or reading fantasy and science fiction books, habits going back to his days before incarceration.

To this day, Mark’s biggest regret is the loss of Dawn Burgett, whom he calls “the love of my life.”

They both lament that they were unable to have kids and raise a family together.

He says losing her was “a heavy price that can’t be fixed.”

She is a hole in his heart, as he is in hers.

As friends they still speak periodically on the phone.

Thinking it was best for her and her future, after several years in prison Mark unilaterally broke off their relationship, and did it in what he regretfully described as “a mean way.”

That broke Dawn’s heart.

It has taken many years for her to recover and emerge from anxiety attacks and severe depression, brought on by the unresolved and traumatic separation from Mark.

She has married twice since then, her second marriage a happy one.

But there is good news, too.

In the spring of 2023, the Department of the Army issued Mark and Kenny honorable discharges, enabling them to take full advantage of VA benefits.

Dominic had earlier received an honorable discharge, because he had officially left the army prior to his conviction.

Financially, the former soldiers are managing.

Effective August 1, 2022, the state of Georgia awarded each of them $1,000,000 as compensation for their false imprisonment.

This is distributed in monthly nontaxable payments of $2,612 for the next twenty years, which comes to $31,344 per year per man, after attorney’s fees are deducted.

It is impossible to view these men today and not think “If only.”

If only the doorman at Tops Lounge had granted Mark entrance even though he was two months away from his twenty-first birthday.

If only the three soldiers hadn’t by chance pulled up to the Savannah police building at the exact moment that James White arrived with police officer Deborah Evans.

How much pain and suffering could have been prevented? And who knows how bright the lives of Mark, Kenny, and Dino could have become?