We have, perhaps, the best of both worlds. While we are an independent non-profit – which means we have to raise the money to keep ourselves in business – we have the terrific privilege of having the support of Temple University Beasley School of Law. We are lucky to have participation from all of the law schools around Philadelphia – Drexel University School of Law, Villanova University School of Law, University of Pennsylvania Law School, and Widener University School of Law – but it is no exaggeration to say that without Temple’s early leadership and continued support, there would be no Project.

Back in 2009, when our founding members were searching for office space, it was Temple Law Dean JoAnne Epps who answered the call. Since then, Temple students have volunteered in our office, on our cases, served as clinical interns, and helped raise awareness about how our society continues to wrongly convict innocent people. Temple faculty have served as resources and mentors, volunteered on cases, and helped educate our students. Student groups have hosted educational lectures and panels. And, of course, for the past five years we have had a roof over our heads as well as computers, phones, and electricity to do the work that needs to get done. All because of Temple.

So, as we sit in the dark waiting out the generators, a belated but wholly sincere “thank you” to Dean JoAnne Epps and all of the people at Temple University Beasley School of Law.

In June, after 12 years of litigation through state and federal courts, Chief US Magistrate Judge Martin C. Carlson recommended Mr. Lee’s release or retrial. Citing “extraordinary progress in human knowledge regarding fire science” over the past 20 years, Magistrate Judge Carlson determined Mr. Lee’s conviction rested upon “invalid” conclusions amounting to “little more than superstition.” Senior US District Judge William J. Nealon adopted Magistrate Judge Carlson’s conclusions on August 8. On August 18, Judge Nealon ordered Mr. Lee’s release after no objection was raised by the Commonwealth. Mr. Lee is expected to walk out of the courthouse after Friday’s bond hearing, when Magistrate Judge Carlson will set conditions for his release pending potential retrial or appeal.

Attorney Peter Goldberger, an Advisory Board member to the Pennsylvania Innocence Project, has represented Mr. Lee throughout his excruciating ordeal. Goldberger was elated by the decision and Mr. Lee’s impending release.

“For over a decade, we have tried to convince anyone we could there had never even been a crime here. Mr. Lee’s conviction is a tragedy of multiple proportions: he lost his beloved daughter, was never able to grieve for her, and has spent the past near-quarter century fighting for his freedom.”

Internationally renowned fire dynamics expert John Lentini, who testified for Mr. Lee, said,

“There is no shred of credible evidence that this fire was intentionally set. The fact is, Mr. Lee’s jury was misled by objectively false testimony. The level of chicanery and mendacity in this misbegotten case is staggering.”

Under Judge Nealon’s order, Monroe County District Attorney David Christine must decide whether or not his office will attempt to retry Mr. Lee by December 6, 2014. Meanwhile, Mr. Lee will be welcomed home, at long last.

If a prosecutor allows two clearly innocent men to be convicted of a murder neither committed, is that a praiseworthy event?

Felix Rodriquez and Russell Weinberger spent over 21 years in prison for crimes they did not commit. Convicted of murder, Rodriquez and Weinberger were released from prison in 2002 after another man confessed to the killing they were incarcerated for. Through the diligent efforts of the Philadelphia District Attorney’s Office, new evidence demonstrated their innocence and identified the true perpetrator of this crime, an inmate named Anthony Sylvanus.

In an unprecedented move for the organization, the PA Innocence Project is looking to the executive branch to remedy this incredible case of injustice. Constitutionally vested in the executive wing of our government, the pardoning power represents Rodriquez and Weinberger’s last resort for relief. In Pennsylvania, the governor shares the authority to grant pardons with an administrative body known as the Board of Pardons. The pardon is the most far-reaching clemency mechanism—it acts as an official nullification of a criminal conviction.When properly employed, pardons advance the causes of justice and serve to memorialize mistakes made in the criminal courts. The late Chief Justice William Rehnquist explained that the power to pardon is “deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice.” Herrera v. Collins, 506 U.S. 390, 412 (1993).

Rodriquez and Weinberger were convicted in Philadelphia in 1985 for the 1981 robbery and murder of a Kensington optometrist, Dr. Charles Langley. Dr. Langley was strangled to death with his own necktie and robbed of $123 and a wristwatch. No eyewitnesses were found and no physical evidence linked the men to the crime scene. Their convictions resulted from a phenomenon that has been identified as a leading cause of wrongful convictions: false confession. Both Rodriquez and Weinberger possessed vulnerabilities that experts say make false confessions more likely. The detective who interrogated them was not sensitive to the fact that Russell Weinberger had an IQ around 60 and that English was a second language for Felix Rodriquez.  

Weinberger initially plead guilty to third-degree murder and was sentenced to 15 to 30 years in state prison. In exchange for this deal, he agreed to testify against Rodriquez. A jury convicted Rodriquez of second-degree murder and he was sentenced to life without parole. The two men maintained their innocence for the 21 years they spent behind bars. In 1997, Weinberger was up for parole but the board denied his release because he refused to accept responsibility for the Langley murder. Years before the Pennsylvania Innocence Project was born, Rodriquez wrote to Barry Scheck of the Innocence Project in New York asking for help.

He explained: “two men come forward and confess about the crime I doing time for.”

Anthony Sylvanus came to the attention of law enforcement when then Philadelphia Police Captain Alan Kurtz ran a fingerprint from a cold case through the Automated Fingerprint Identification System. It matched Sylvanus, who admitted his guilt and subsequently confessed to a string of murders of elderly folks in the Kensington area from 1981-1982—including Dr. Charles Langley.  Sylvanus was not charged with the Langley homicide but plead guilty to four other murders, all of which had been unsolved for three decades.

On September 20, 2002, Rodriquez and Weinberger were released from prison only after they plead nolo contendere and Judge Benjamin Lerner sentenced them to the time they had already served. Counsel for both Mr. Rodriquez and Mr. Weinberger lauded the District Attorney  for having done “the right thing,” in not objecting to the plea. That praise was given notwithstanding the fact that the DA allowed two blatantly innocent men to be convicted of a murder neither one committed.

Today, Rodriquez explains that he was tricked into confessing – that he didn’t understand that the papers he signed constituted an official statement.  Though the men were released without any opposition from the Commonwealth, to this day they have not been exonerated and neither received any kind of apology from the state.

Russell Weinberger passed away in 2011. PIP will be pursuing a posthumous pardon on his behalf.  Granting a pardon for Mr. Rodriquez would help to repair his life, which was shattered by this experience.

While the Pennsylvania Board of Pardons does not specifically include wrongful convictions as a ground for clemency, the pardoning power is not limited to mercy. This is not merely about compassion—it is about memorializing a miscarriage of justice and holding the justice system accountable. This country has long recognized the pardoning power as an acceptable check on the other branches of government, enabling the executive to act when necessary for the public interest. Because the men have exhausted their judicial remedies, a pardon is the only hope for clearing their names.

THE FIRE

On February 14, 1995, a fire broke out in the Brown and Buckner family home in Pittsburgh, Pennsylvania. While all of the family members got out safely, tragically three firefighters working to extinguish the fire died. A fire analyst went into the house after the fire was finally put out to conduct a “cause and origin” investigation – to find out how and where the fire started. Without conducting the true investigation of accidental causes mandated by the professional standards, the fire was declared “incendiary” and the work of “arson.”

A year later, 17 year-old Greg Brown was arrested and charged with intentionally setting the fire in his own home. His mother was charged as a co-conspirator. The motive was a minimal $15,000 renter’s insurance policy. Greg and his mother maintained their innocence from the very beginning: they had been at a food store getting supplies for a family function the next morning – they even still had the time-stamped receipt. They were not at the house, and no-one started the fire. Indeed, Greg and his mother always said the same thing: the heater had been giving them trouble. Maybe it was a gas leak.

But authorities had their conclusion: we lost three heroes. This was arson.

THE TRIAL

At his trial, 2 witnesses offered testimony to implicate Greg. The first, Keith Wright, was a neighbor who lived down the street from Greg’s home. He testified that he saw Greg standing outside his home staring at the smoke coming from the windows before the fire trucks arrived. This testimony was challenged by the witness’ mother who testified that she called her son to make sure he was safe and that he had been sleeping when she called. This directly challenged Greg’s testimony that he had been at the store. When asked whether he was getting anything for his testimony, he said no. When asked why he only came forward 10 months after the fire, he had no answer.

The second witness – a troubled 15 year-old boy from a dysfunctioinal home – testified that while at a juvenile placement with Greg months after the fire, Greg told him that he had set the fire. When asked whether he expected to receive any benefit for his testimony, the boy said no, and that “it’s the right thing to do.”

After closing arguments, a former neighbor of Greg’s family came to court and showed Greg’s lawyer a flier that had been circulated in the neighborhood 10 months after the fire. It was from the Bureau of Alcohol, Tobacco, and Firearms, and offered a reward of $15,000 to anyone who could provide information about who had set the fire. The flier was dated 2 days before Keith Wright first identified himself to authorities as having any information.

Greg’s lawyer – a former federal prosecutor himself – was stunned. To him, this was information the government was required to provide to him before trial under the constitutition. Had he known there was a reward out there, his entire case presentation would have been different.

Greg’s lawyer asked the judge to re-open the case to tell the jury about the reward and ask Keith Wright directly whether he knew about the reward offer and whether he expected to receive any of the money. The judge said no. Since Wright had already denied receiving any benefit for his testimony, the evidence was before the jury.

Greg’s mother was found not guilty, but Greg was convicted of arson and second-degree murder. He was sentenced to 2 mandatory life sentences without parole. He was 18 years old.

THE INNOCENCE INSTITUTE INVESTIGATES

In 2010, veteran journalist Bill Moushey of the since-closed Innocence Institute began looking into Greg’s case. He managed to obtain information from the Bureau of Alcohol, Tobacco, and Firearms about the investigation of the fire. What he found shocked him: both witnesses, despite their protestations to the contrary, had received thousands of dollars from the federal government a year after Greg’s conviction. The neighbor? He received $10,000 cash. The troubled boy? $5,000. Cash.

Moushey also contacted world-reknowned scientist Gerald Hurst, and asked him about the cause of the fire. Dr. Hurst reviewed all of the materials available and came to a stark conclusion: there was no evidence that the fire was started intentionally. Indeed, from the statements of other firefighters on the scene who saw a “steady blue flame” shooting across the basement of the house, it appeared that it was exactly what Greg’s family had said all along: the fire was accidental, not arson.

THE PENNSYLVANIA INNOCENCE PROJECT GETS INVOLVED

Moushey contacted the Pennsylvania Innocence Project, and we went to work. We were lucky enough to engage a pro bono attorney in Pittsburgh to help us out. Dave Fawcett was a prominent figure in the Pittsburgh legal and political communities. When he learned of the apparent injustice Greg suffered, he jumped right in. Dave located the neighbor who had received the $5,000 and learned that Wright had known about the reward before he testified, and that he had learned about it from the ATF agent in charge.

Even more alarming, the Project and an investigator located the boy who had testified against Greg. He willingly admitted not only that he was aware of the reward before he testified, but insisted that he expected to get $15,000, not $5,000, for his assistance. We also contacted his former girlfriend and 2 former juvenile probation officers who also confirmed the boy knew about the reward before trial. In fact, all three – who lived in different states and had never discussed the case – told us that the boy was “focused” on the reward, thinking getting the money would solve all his problems.

THE HEARING

In February and May, 2012, several witnesses testified before Judge Williams about their experiences with Greg’s trial. Keith Wright, now suffering from painful medical conditions that limit his ability to speak clearly, testified first. A few months later, the remainder of the witnesses took the stand.

• The boy who received the $5,000, now a 32 year-old man,  told the court he knew about the reward, and he fully expectted to receive the money for having participated in Greg’s prosecution. In fact, he said that he wanted to back out but was put in a room with the firefighters’ families, who thanked him for his help. After enduring this pressure, he agreed to go through with the testimony.
• One probation officer told the court that he spoke with the ATF agent many times, and that in their first conversation the agent told him that if the boy participated, he could get a reward of $15,000.
• The other officer told the court the boy was so “focused” on the money he’d get for helping the government that he was not benefitting from his therapy.
• The boy’s former girlfriend told the court of many conversations she had with the ATF agent, and about conversations she had with the boy about the money. She talked of specific plans he had for what he would do once he got the money, and that he would “say anything they wanted” to get it.

THE WAIT

The hearings closed in May, 2012, and final briefs were submitted in November, 2012. The wait for Greg and his family has been excrutiating. Finally, in January, we received an Order from the Court requiring Greg and his lawyers to be in court today for his ruling. Today we learn his fate. Stay tuned…

On November 9, 2013, we learned that the DA did not appeal, and in fact was conducting independent investigations to determine whether they wanted to retry Eugene and his co-defendant, Lance Felder. While Judge DeFino-Nastasi wanted Eugene and Lance released immediately, given that they are both still facing murder charges, she accepted the DA’s request that they be released to house arrest. Just one week later, on Friday November 15, Eugene came home. Welcome home, Eugene!

With the recordings, prosecutors handed over two handwritten letters which had been intercepted by prison officials before they went out. One was written to a name no-one recognized at an unknown address, the other to Lance’s brother at an equally unknown address. In the letters, Rolex spoke of “the deal,” claiming that he was owed “$10,000” for doing what he did. He threatened to “tell the DA” about it unless he received his money.

The volunteers and staff of the Pennsylvania Innocence Project went into overdrive. Literally around the clock, volunteers listened to every minute of the Rolex calls to find out whether there really was a deal, and if so who with. Our investigator went out to the addresses on the letters, to speak with those folks to see what they knew about Rolex and his claimed “deal.” And what we found out made one thing very clear: there was no “deal” and never had been. In fact, what we learned showed only one logical conclusion: fearing prosecution for Thomas Keal’s murder, Rolex tried to get out of his detailed confession by claiming it was the product of a deal. Here are just some of the things we learned:

• The address on the enveloped addressed to Lance’s brother was an abandoned house, uninhabited for over 35 years (in fact, our own blank enveloped sent to “Occupant” at that address came back stamped “VACANT”);
• The person at the other address had no idea who any of these people are, and had no knowledge of any of the events at issue;
• Rolex’ ‘wife’ had been a virtual stranger to him only 2 months before the transcribed call – he had to ask a friend for her name to put on his visiting log;
• Rolex had repeatedly lied to his new wife, hiding from her that he was serving a life sentence (he had told her he would be paroled soon);
• While Rolex often talked about money on the tapes of his calls, it was always to complain that he had none, and to ask that others put money on his books – there was no talk of the situation being temporary, or allusions to a future payout;
• The day before the call presented by the prosecutors, Rolex told his wife that he didn’t know what to do, that he couldn’t discuss anything on the phone or write anything to her in a letter;
• Rolex knew that his mail was being opened by prison officials before it went out;
• Under prison rules, inmates know that sending letters containing threats or extortion is prohibited and any such letters are subject to confiscation;
• While outgoing mail may or may not get read by officials, all incoming mail – even for mail that had to be returned for a bad address – would be opened before forwarding to the inmate.

In the final day of testimony, prosecutors played the one phone call for the judge and gave her the letters intercepted at the prison. Refusing to accept a stipulation to the testimony, the District Attorney called a live witness – the head of Intelligence for Rolex’ home prison. He confirmed that Rolex’ mail was being opened before going out, that of over 50 letters sent out only these 3 had been confiscated, and that if an inmate uses another inmate’s name and institutional number in the return address he can avoid having his mail read altogether. Indeed, the prison official even talked of “boomerang” letters where inmates bounce correspondence to each other using other inmate names and numbers.

Finally, we also played excerpts of Rolex’ calls for the court. The judge heard for herself Rolex admitting

• he was “trying to do the right thing”;
• that if he was in “those boys” situation, he hoped someone would do what he was doing; and
• that “the boys” didn’t have anything to do with “the situation” and that people get locked up for “stuff they didn’t even do.”

After the last call was played, prosecutors again asked for more time. The judge denied it, saying “You’re done. You’re done” and listed the case for final arguments on October 8, 2013.

As we write this, that date is one day away. Eugene is holding together well, hopeful but not making any predictions. His family – particularly his mother – speaks to him as often as possible, keeping his spirits up. And we are readying our final arguments, anxious to convince the court that a gross injustice has been done, and that she has the power to make it right.

From the Start, Witnesses Said it was Rolex and Tizz

On the first day of hearings, the judge asked the Commonwealth whether they would argue that Eugene had not been diligent (and should therefore be denied relief) even if the evidence showed he did not commit the murder. The DA responded they will have to “see where it goes.” And so the tone was set.

During the next few days, we presented multiple witnesses who testified to the same thing: they were outside the evening Mr. Keal was murdered, hanging around a store on Venango Street. Eugene and Lance, both teenagers at the time, were there too. Some of them, including Eugene and Lance, were selling drugs. It was where they always sold drugs, directed by Lance’s older brother Rob. Rolex and Tizz were known as Rob’s “enforcers” – the men who would go after anyone who threatened the drug operation.

At some point, Rolex and Tizz came up and talked about robbing the bar on the corner. The people outside objected, saying it would “draw” police to the area. The two men left, saying they would go up the street. Eugene and Lance stayed right where they were.

The witnesses heard gun shots, then saw Rolex and Tizz running away from the scene. Some saw them get into a car driven by Rob Felder. The three men drove off. When police came to the scene, only one witness was willing to say she saw anything. She told police it was Rolex and Tizz. There was no other information given to police. Everyone else had scattered or would not talk.

And, finally, through our staff investigator, we heard Rolex’ confession. His chilling admission to not only Mr. Keal’s murder but to other assaults and robberies committed with the same gun, brought everyone in the courtroom to silence. Some highlights:

In August of 1995 I robbed and shot a man on 17^th Street in between Erie and Venango.  Around 2 or 3 p.m. the day of the shooting I shot a man named Anthony Stokes around 58^th and Christian with the same gun I used to shoot the man on 17^th Street.  After I shot Mr. Stokes I went to N. Philly with a friend.  My friend knew a man named “Rob” who lived in N. Philly.

We were hanging out with Rob and his friends at the Chinese store on 17^th in between Venango and Tioga.  Sometime between midnight and 2 a.m. my friend and I approached the man as he left a bar and was crossing the street.  I approached the man from the front (he was on the sidewalk) and my friend approached him from the back.

I had a double-barrel sawed-off shotgun.  My friend had a .22 revolver, silver with tape around the handle.

My friend held the .22 to the back of the man’s head.  The man had a chrome revolver with a black grip-it was a chrome .357.  The man pulled out his gun and said “I ain’t giving you shit.”  I shot the man in the leg and he fell.

My friend stood over him and shot him in the head.  I think my friend fired 3-4 shots.

I took the man’s gun – I had to pry it out of his hands.

After my friend shot the man on 17^th Street I said “What the fuck did you do that for?”  He said, “Man, you shoot everybody, I want to shoot somebody too.”

No one has promised me or given me anything to get me to make this statement.  No one has threatened me.  Eugene Gilyard had nothing to do with the murder of the man on 17^th Street.

Never would Rolex name his “friend,” protecting him even in coming clean himself. Nor did he want “Rob” (Rob Felder) to be identified in the statement. And, of course, the words came through our investigator, not Rolex. But as they were to be considered for their truth – that is that Rolex did, in fact, kill Thomas Keal – Eugene hoped it would be strong enough.

Did Eugene and Lance Act Diligently?  

A recurring theme in the questions the District Attorney asked the witnesses was whether Eugene or Lance could have gotten the information about Rolex and Tizz earlier. These questions were asked because, as the DA said, “They have to do everything in their power to pursue their cases.” Sadly, this is simply untrue. The law does not require a convicted innocent person to do “everything in his power” to prove his innocence; he only has to show he acted with “due diligence” – in other words, that he did what would reasonably be expected.

What became clear from the witnesses was that all of those involved knew that Eugene and Lance were innocent, and that Rolex, Tizz, and Rob were the ones responsible. But, as Philadelphia Inquirer reporter Joe Slobodzian pointed out in an article about the hearings, Rob had made it clear no-one should talk to police about the murder; even if it meant his own brother went to prison for something he didn’t do. The “code of the streets” protected Rolex and Tizz, but sent Eugene and Lance to prison as teenagers.  Eugene’s freedom depended upon getting Rolex, Tizz, or Rob to finally come forward and credibly admit the truth. Only once Rolex did that could Eugene hope to gain his freedom.

Another Twist: Follow the Money?

On what was supposed to be the final day of the hearing, the District Attorneys had a surprise: they had subpoenaed Rolex’ financial records from prison. In 2011, after he met with the investigator Eugene’s family hired to speak with him, there was a $500 deposit on his books made by a woman. The deposit appeared to be larger than ones regularly made by the same person, but it appeared only one time. The prosecutors wanted time to get all of Rolex’ phone calls that he made while in prison (all inmate calls are recorded going into and coming out of the prison) and all of his financial records.

Although she remarked that “$500 isn’t a lot of money to admit to a murder,” the judge allowed the prosecutors time to gather their evidence. But not much. What was uncovered during the next few weeks could show either an interrupted promise of payment for confessing, or a confessed murderer’s weak and failed attempt to get himself out of a murder arrest.

• the petition has to show that a “manifest injustice” occurred and that the petition has to be granted to fix it; or
• the petition has to show either that the government “interfered” with the defendant’s ability to present the claims in the petition earlier; or
• that the defendant has discovered new “facts” which were “unknown” to him and “could not have been ascertained by the exercise of due diligence; and
• he has to file his petition within 60 days of “the date the claim could have been presented.”

If the defendant gets over those barriers, only then can he ask the court to review the real substance of his claim. And those claims have to fit within the limits of the PCRA itself. A court can only grant relief if it finds that the defendant’s conviction was the result of:

• a constitutional violation which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”;
• ineffective assistance of counsel which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”; or
• new, exculpatory, evidence which was not available at the time of the defendant’s trial and which “would have changed the outcome of the trial if it had been introduced.”

The standard is, obviously, very high. And, of course, it should be high. It should not be easy to overturn a criminal conviction. But Eugene’s case and dozens more like it raise the question of how hard should it be. If the evidence of innocence is strong enough, should it matter how “diligently” the defendant pursued it, or if he filed within 60 days of learning of the evidence? Those questions clearly troubled the judge, even on our first day of hearings.

Eugene’s Petitions and the D.A. Response

We have previously posted in this blog about the substance of Eugene’s claims, and how the District Attorney’s Office responded. Those posts, which you can access here, include links to the actual petitions and filings. Essentially, the Commonwealth’s response to Eugene’s evidence that Rolex’ confession entitles him to a new trial was that he had failed to show he acted “diligently” in getting Rolex to confess. As a result, the District Attorney’s Office asked the Court to dismiss Eugene’s petitions. The Court decided that she would hear Eugene’s evidence and make a determination about his diligence at the same time.

A Wrinkle: Rolex Takes the Fifth 

Because Rolex was now admitting to having participated in a murder for which he had never been arrested, he needed his own legal counsel. In Pennsylvania, there is no statute of limitations for murder. That means that for murder, unlike any other crime, there is no specific time in which the Commonwealth has to act to arrest and prosecute the perpetrator. Because of that, Rolex could still be arrested and prosecuted for Thomas Keal’s murder. So he needed a lawyer to see whether he was willing to come to court to tell the judge directly what he had told numerous other people: that he had gotten away with murder.

Quickly the word came back: Rolex was refusing to testify. He intended to exercise his constitutionally protected right to remain silent. No-one doubted that he had a legitimate right to invoke that right.

The question now became, could Eugene call the Project investigator to tell the judge what Rolex had confessed to? The District Attorney’s position was no: the statement to the investigator took place outside of court and was therefore inadmissible as “hearsay” and unreliable. Our position was that the law has exceptions to that rule, such as when someone admits to criminal activity that could get them prosecuted and convicted of a crime they weren’t otherwise under suspicion for. The judge agreed with Eugene: Rolex’ confession would be admitted.

As an indigent inmate in a faraway prison, Eugene had run out of options in trying to prove his innocence. Although he had been represented by lawyers at trial and on an appeal, none appeared to take his claim of innocence seriously. Indeed, one prior lawyer treated Eugene’s situation so badly he filed a letter with the court asking to be relieved from representing Eugene because the lawyer saw “no merit” in any appeal issue. At no point did any lawyer tell the court that Eugene was an innocent man, convicted of another man’s murder. Yet he soldiered on, hoping someone would listen.

A Break: “Rolex” Says He is “Willing to Help” Then Confesses to Murder

After Eugene first wrote to the Project asking for help, the biggest development since his arrest took place. Eugene’s mother received a letter in the mail from a man who claimed he could help Eugene in his case. That letter, sent by Ricky “Rolex” Welborn, said only that he would be willing to help. Eugene acted as quickly as he could, finally securing enough money to hire someone to go interview Welborn in prison where he was serving a life sentence for murdering another man.

That interview, on March 18, 2011, yielded a full confession. A confession from Rolex that he, and not Eugene Gilyard, murdered Thomas Keal. As soon as he received that confession, Eugene did what he had to do under Pennsylvania law: he filed a petition under the Post Conviction Relief Act (“PCRA”) asking the court to vacate his conviction and grant him a new trial, where the jury could hear Rolex’ confession and judge for themselves whether Eugene was involved in the murder or not.

In June, 2011, the investigator from the Pennsylvania Innocence Project met with Rolex and did a longer, more extensive interview. During that interview, Rolex again admitted that he –not Eugene – was responsible for Mr. Keal’s untimely death. Indeed, Rolex admitted to another shooting that took place earlier the same day, where he used the same gun (a crime for which he had never been prosecuted as the victim refused to identify Rolex to police).

In his confession, Rolex admitted that he and another man (whom he refused to name, even 20 years later) decided to commit an armed robbery for cash. They chose Mr. Keal as the target as he was believed to carry cash from his store when he closed at  night. In August, 1995, Rolex and his co-hort approached Mr. Keal on the street, demanded money from him, and threatened him with his gun – a double-barreled sawed-off shotgun. When Mr. Keal pulled out his own gun in self-defense, Rolex said he shot Mr. Keal in the leg. While Mr. Keal was on the ground, Rolex’ co-hort shot him in the head 3 or 4 times with his own gun, a .22 revolver.

The victim dead, Rolex and the other man ran from the scene. They got into a car, driven by “Rob” and drove to West Philadelphia. (Although he initially named Rob by name, Rolex refused to sign the statement unless Rob’s name was crossed out.) Rolex admitted that he kept the victim’s gun for himself and later sold it to a man he referred to as “Chink.” He used the same sawed-off shotgun in another robbery in November, 1995.

Rolex admitted his guilt knowing full well that he, himself, could be prosecuted for Mr. Keal’s murder. During the interview, he was alert, forthright, and non-hesitant in describing what he did that night. His only hesitations were in identifying, by name, the man he was with, and including “Rob’s” name in his signed certification. To this day, Rolex refuses to provide his co-hort’s name.

Asking the Commonwealth for Help

On August 8, 2011, we wrote to the Philadelphia District Attorney’s Office and asked them to investigate the murder of Thomas Keal. The letter was co-signed by Mr. Keal’s daughter, the very person who identified Eugene as having been the one who killed her father. While not stating that she was wrong, Ms. Keal wanted to know the truth about her father’s murder.

In the letter to the District Attorney, we pointed to other evidence that showed Rolex was telling the truth – that he killed Thomas Keal and that Eugene Gilyard had no involvement. Several eyewitnesses who were present at the time of the murder saw Rolex and a man they called “Tizz” walk toward Mr. Keal’s store. After hearing gunshots, the witnesses say they saw Rolex and Tizz run away and get into a car. Rolex’ confession corroborates Ms. Keal’s account of what she saw the night her father was murdered. Including that Mr. Keal was shot in the head while he was on the ground.

After sending the letter, the Pennsylvania Innocence Project continued to investigate Eugene’s case. Because our mission is to learn the truth about a crime, we do not stop our investigation until we have reviewed all of the evidence, spoken to all the witnesses we can. And our investigation yielded even more evidence that Rolex and not Eugene was guilty of murder. Significantly, the Project found and interviewed Anthony Stokes – the man Rolex said he had shot earlier that day. Mr. Stokes confirmed that Rolex did, indeed, shoot him that same day and that he used a “sawed-off shotgun” to do it. Mr. Stokes said he did not identify Rolex as the shooter, preferring to get his own justice later. Mr. Stokes agreed to allow the Project to obtain his medical records from the shooting which, again, confirmed his account.

And yet, we never heard from the Commonwealth. Until they filed a Motion to Dismiss Eugene’s case.

Thomas Keal’s Murder and Eugene’s Conviction

The picture of Eugene’s conviction has always been hazy. Thomas Keal was murdered as he closed his store around 2 am on August 31, 1995. Mr. Keal’s daughter lived across the street, on the 2nd floor. Woken by her father’s voice outside, Ms. Keal got to the window in time to see her father engage with 2 men wearing bandanas and brandishing guns. The men shot her father then turned and ran away. She saw this from her 2nd floor window, looking down on the scene through a box fan in her window. Of course, it was dark of night.

Two years after her father’s murder, police showed Ms. Keal a photo array. This array also included Eugene’s picture, but the photo used in the array was of Eugene as he appeared then at age 18, not as he looked 2 years earlier as a 16-year-old boy. Ms. Keal hesitantly identified Eugene as having been involved.

At trial, the only evidence presented to convict Eugene was the testimony of Ms. Keal. A witness who told police she saw two other men – “Rolex” and “Tizz” – running away from the murder was not called by the defense. On December 10, 1998, at age 18, Eugene was convicted of murder and sentenced to life in prison without the chance of parole.

Eugene Appeals, but is Turned Away

Eugene appealed his conviction, but the Superior Court refused him. The Supreme Court of Pennsylvania denied his request for review in 2003. In 2004, Eugene filed an appeal under the Post Conviction Relief Act (“PCRA”), challenging the stewardship of his trial by defense counsel. Among other claims, Eugene tried to argue that he was innocent and had nothing to do with the murder of which he was convicted. Again, his appeals were denied. Having exhausted his allowed appeals and without any resources to hire lawyers or investigators, Eugene had nowhere to turn.

Pennsylvania Denies Counsel After Convictions are Affirmed

Under Pennsylvania law, inmates have a right to file 2 appeals after conviction. The first, referred to as a “direct appeal,” can challenge any legal or procedural errors that occurred during the trial. Issues such as whether a court improperly denied a motion to suppress evidence due to constitutional violations or whether a court improperly instructed a jury are common claims on direct appeal. The second level of appeal, called a “collateral appeal”, is allowed so inmates can challenge the effectiveness of their trial counsel, and where counsel was deficient, have a new trial ordered. Once those appeals have been filed, there are no other avenues for inmates to appeal their sentences. Courts provide access to counsel for these 2 levels of appeal, but nothing afterward. Inmates without money or resources to hire a lawyer or, even more importantly, an investigator, are on their own.

The law in our state in terms of the limits on appeals is both strict and virtually unyielding. There are only 3 exceptions to this limitation: if the Supreme Court of the United States declares a new criminal rule, if the government “interfered” with the ability to bring an appeal earlier, or if the inmate comes across “new facts” which he didn’t know about at trial and could not have known about even if he acted diligently. On top of those requirements, inmates in Pennsylvania have only 60 days to file a petition raising one of these exceptions from the time “the claim could have been brought.” That is one of the strictest timeframes in our nation. Sixty days. And because the courts have interpreted that to mean that they do not have the power (properly called “jurisdiction”) to hear a claim unless it was filed within 60 days of the time the claim could have been brought, inmates who have no resources often find themselves unable to have their claims heard at all.

After his appeals were denied, Eugene had nowhere to turn. He had no money. His family, who staunchly believed in his innocence, had no money. He knew he had nothing to do with Mr. Keal’s murder but he had no way to prove it to a skeptical court that had already branded him “murderer.” In 2009, when the Pennsylvania Innocence Project opened, he finally got what he’d lost when he was convicted: hope.