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Southern Injustice

Convicted of murder in a deeply flawed trial, Herman Wallace has spent nearly 37 years in solitary confinement. Will new evidence finally lead to his release?

| Tue Dec. 29, 2009 8:00 AM EST

If the story of Herman Wallace's trial reads like a study in Southern justice, its sequel shows what has changed in Louisiana in the intervening decades—and what has remained the same. Wallace and Woodfox now have a small legion of active supporters and an impressive team of lawyers renowned for their death penalty appeals, including Nick Trenticosta, director of the Center for Equal Justice, in New Orleans, and George Kendall at the pro bono unit of Squire Sanders & Dempsey in New York. But even good lawyers can't vitiate the Louisiana justice system's apparent determination to keep Wallace and Woodfox locked up and locked down, for reasons that appear to go far beyond the facts of the 1972 murder of Brent Miller.


The two men believe that they were originally targeted for the murder because their political beliefs and activism represented a threat to the absolute power of prison authorities. Statements from Angola's current warden, Burl Cain, suggest they are being kept permanently in solitary for much the same reason. Cain has been widely celebrated for "transforming" Angola, largely through the institution of Christian "moral rehabilitation," which he sees as the only path to redemption for the sinners in his charge. There is no room, either in Cain's worldview or on his prison plantation, for people who question authority like Herman Wallace and Albert Woodfox have.


In a 2008 deposition, Cain declared, "The prison operates with one authentic authoritarian figure, the warden and the rule book." He also said that Woodfox's lack of deference made him a dangerous man: "The thing about him is that he wants to demonstrate. He wants to organize. He wants to be defiant. He wants to show to others that he is powerful and strong."


Woodfox's lawyers have pointed out that he had no record of violence and few disciplinary infractions in the past 20 years. They documented a similar record for Wallace in a 2006 deposition [PDF]: "Mr. Wallace's most recent disciplinary report for institutional violence occurred some 22 years ago," it said, and in recent years, Wallace's handful of infractions included "possessing handmade earrings and a poem, 'A Defying Voice'"; "wearing a handmade necklace with a black fist"; and "possessing the publication, It's About Time, a Black Panther publication 16 containing articles/photos on the Angola three, characterized as, quote, 'racist literature' by security personnel." His most recent disciplinary report "was December 2005, when he was found in the possession of excess number of postage stamps, for which he received thirty days cell confinement."


But Cain believes "It's not a matter of write-ups. It's a matter of attitude and what you are." And to Cain, what Woodfox and Wallace are and will always be is Black Panthers. Associate Warden Hayden Dees previously said that "a certain type of militant or revolutionary inmate, maybe even a communist type" was dangerous enough to be kept in permanent lockdown. In 2008, Cain said that Woodfox belongs in solitary because "I still know that he is still trying to practice Black Pantherism, and I still would not want him walking around my prison because he would organize the young new inmates. I would have me all kind of problems, more than I could stand, and I would have the blacks chasing after them."


Wallace says that Cain at least once offered to release the two men into the general population if they renounced their political views and accepted Jesus Christ as their savior. He refused. Cain declared that "Albert Woodfox and Herman Wallace is locked in time with that Black Panther revolutionary actions they were doing way back when…And that's still their motive and that's still their goal. And from that, there's been no rehabilitation."


Louisiana's attorney general, Buddy Caldwell, also appears determined to keep the two men in prison at all costs—a vow that he will likely try to uphold even if Wallace's case succeeds in federal court. Caldwell's resolve has already been tested in the case of Woodfox: When a federal judge overturned Woodfox's conviction in 2008 and ordered him released on bail, the attorney general sprang into action—filing an emergency motion to keep him behind bars, sending fearmongering emails to the community where Woodfox was planning to stay with his niece, and telling the press that he was "the most dangerous person on the planet." Persuaded by Caldwell's plea and Cain's testimony about his dangerous nature, the federal appeals court granted the motion and denied Woodfox bail; he remains in lockdown, awaiting his appeal. In a recent letter, Wallace wrote of Caldwell, "Like most prosecutors, he will never admit he made a mistake, he's fighting to keep us imprisoned. The reputation of the Louisiana justice system is at stake here. If we gain our freedom it would expose the corruption that is rampant throughout the system."


The fate of both Wallace and Woodfox ultimately lies in the hands of the federal Fifth Circuit Court of Appeals in New Orleans—and here, they are worse off than they might have been 40 years ago. In the 1950s and 1960s, a small group of Fifth Circuit judges—mostly Southern-bred moderate Republicans—won a reputation for advancing civil rights and especially school desegregation. But today the Fifth Circuit, which covers Louisiana, Texas, and Mississippi, is among the most ideologically conservative of the federal appeals courts. It is notable for its overburdened docket and for its hostility to appeals from defendants in capital cases, including claims based on faulty prosecution and suppressed evidence. In particular, the Fifth Circuit has kept the gurneys rolling in Texas' busy execution chamber. The court has even been reprimanded by the US Supreme Court, itself no friend to death row inmates: In June 2004, Justice Sandra Day O'Connor wrote that in handing down death penalty rulings, the Fifth Circuit was doing no more than "paying lip service to principles" of appellate law.

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