The American way of death

Even the courts agree that Joseph Amrine didn't commit the murder for which he is due to be executed shortly- but that won't save his life. Andrew Gumbel reveals a nightmare of institutionalised injustice
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The Independent US

It is just after 4pm, somewhere in the bowels of the Potosi Correctional Center in Missouri, and still there is no sign of prisoner number CP-48. Joseph Amrine – convicted murderer, candidate for execution and emblem of almost everything that is wrong with the US criminal justice system – was supposed to have been brought to the interview room more than an hour ago, but nobody is in any rush to honour his prearranged appointment with the media.

"We're busy as a bee right now," explains a bored, pudgy guard, even though there can be no more than a dozen people in the entire visiting area. Through an interior window I can see the open contact room, reserved for rank-and-file prisoners whose circumstances are less grim than Amrine's, where relatives clasp the hands of their loved ones and offer them Tupperware containers packed with hamburgers, chips, deep-fried shrimp and slices of cake.

The low hum of voices is punctuated periodically by the metallic clang of doors being opened and shut, locked and unlocked. The place reeks of disinfectant. The atmosphere, under glaring artificial light that bounces off the white breeze-block walls, is both isolating and deeply creepy.

After some time, Amrine is brought in, handcuffed. A tall, good-looking man of 45 with neatly groomed hair and a goatee, he is utterly expressionless as he enters the room where we are to talk. He waits for the sound of the lock crunching into place behind him, crouches down so his cuffs can be removed through a slit in the door, and picks up the intercom phone to say hello. We are separated by a thick pane of soundproofed glass: this is as close as the outside world is allowed to get to prisoners on Missouri's death row.

Amrine's is a face that, as far as the authorities are concerned, has always spelled trouble. He has been in the prison system for a quarter of a century, since he was 20, and he's never been one to cooperate willingly with his jailers. In the early years, when he was serving time for robbery at another prison in Jefferson City, he was caught with knives and described by his warden as "an aggressive prisoner". Then, in 1985, he was named as a suspect in the killing of a fellow inmate and charged with capital murder. The authorities had no qualms about prosecuting him – the warden seemed to take particular pleasure in seeing him nailed – and the jury did not waste much time convicting him and voting in favour of the death sentence. As the foreman later said: "I found Joe Amrine guilty at trial because he was a convict, and I don't trust convicts."

Now he is just another black guy from a poor, crime-ridden family languishing on death row. His appeals are exhausted, and for the past few months he has been restricted to his cell because the authorities are worried his imminent execution might make him violent. For Missouri's attorney general, a passionate advocate of the death penalty who has ramped up the pace of executions to about one per month, Joe Amrine is the very embodiment of why capital punishment exists in the first place.

There is, however, a problem. The problem is, Joe Amrine did not commit the crime for which he is soon due to die. He knows it, his lawyers know it, the witnesses who testified against him know it and have come forward to say so. The US Eighth Circuit Court of Appeals knows it, having all but said so in one of its rulings. Three of the jurors who sentenced him to death know it, having had a chance to review the latest evidence and learn what they were never told at trial.

And yet the great rattling train of justice keeps on rolling towards the execution chamber. The Missouri courts have refused to reopen the case. The attorney general's office has asked the state Supreme Court to issue a death warrant. Any day now, the warrant is liable to come through, meaning that within a month, barring some last minute reversal, Joe Amrine could be strapped on to a stretcher, wheeled before a small audience of lawyers, prison officials and family witnesses and killed by lethal injection.

It is not uncommon, these days, for serious questions to be raised about the guilt of a death-row prisoner. The problems that have plagued Amrine from the beginning – his background, the colour of his skin, the inadequacies of his court-appointed trial lawyer, the shoddy investigative work and overzealousness of his prosecutors – have been documented by death-penalty activists in case after case and in state after state, raising concerns about the safety of capital convictions that have been echoed all the way up to the Supreme Court. What makes his case exceptional, and singularly alarming, is that his guilt is not merely in doubt. Every last plank on which the prosecution built its case has collapsed. Yet the system won't back down.

Amrine was convicted on the testimony of three fellow inmates at the Missouri State Penitentiary in Jefferson City. They all agreed to identify him as the man who stuck a makeshift knife – a sharpened nine-inch metal rod mounted on a paint roller – into Gary Barber's back in the prison recreation room on the afternoon of 18 October, 1985. However, all three have since retracted their testimony, saying they gave it only under heavy pressure from the prison authorities in exchange for promises of easier conditions and eventual parole. One of the three, Terry Russell, was himself suspected of the murder at first and so had a clear interest in trying to pin it on someone else. The other two, Rusty Ferguson and Jerry Poe, were both young, relatively weak white men subjected to the terrors of systematic rape by burlier black prisoners. They were desperate to find a way out of their plight. Not that they had much choice: as the court records document, if they had refused to testify, they would almost certainly have been labelled as snitches anyway and thrown back into the general inmate population, a virtual death sentence.

Even when the three witnesses were cooperating with the authorities, their stories made little sense. Their accounts of Barber's murder varied drastically – one said Amrine fled with the weapon in his hand, while another said Barber pulled the knife out of his own back and dropped it to the ground. In the end only Ferguson was asked to tell his story on the witness stand. Curiously, their confused accounts were contradicted by the one prison guard in the vicinity. Officer John Noble did not witness the stabbing itself, but he did see Barber fall to the ground with blood running from his nose and mouth. He also saw someone run out of the room at high speed, someone who had been tussling with Barber just moments earlier. Noble identified that someone as Terry Russell, a fact that the trial prosecutor skillfully shielded from the jury. Amrine, as six other inmates would have attested had they only been put on the witness stand, was almost certainly playing cards in another room at the time of the murder. Ferguson now says he was in a bathroom washing blood off his knuckles, which he had cut in boxing practice, and saw nothing. Poe says he was nowhere near the rec room at all.

It has been several years since the witnesses began their retractions, but the response of the court system has been a Catch-22 exercise in circular logic. When Russell and Ferguson offered their recantations (Amrine's lawyers were initially unable to trace Poe), Judge Fernando Gaitan of the Western District of Missouri argued that as long as Poe's testimony remained unchallenged "it cannot be said that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt." When Poe was found, in a prison in Kansas, and offered his own retraction, Judge Gaitan switched arguments, saying Poe's change of tune could not be trusted because he was "not a credible witness".

The federal appeals court in St Louis, which was next to hear the case, pointed out the seemingly obvious fact that, without the testimony of Russell, Ferguson and Poe, "there would appear to be no evidence implicating Amrine in Barber's murder." In its 1998 ruling, the court wrote: "The strength of Amrine's showing at this point raises the possibility that his case may be an example of the 'extremely rare' scenario for which the actual innocence exception is intended." However, throwing the case out or ordering a new trial were not options the appeals court felt it had the authority to impose, because of another, highly controversial ruling by Judge Gaitan that effectively prevented the issue of Amrine's innocence or guilt from ever being re-examined by the legal system.

Under the usual rules of evidence, a court is obliged to reopen a case if new information seriously challenging the original conviction comes to light. Judge Gaitan argued, however, that none of the evidence exonerating Amrine – the testimony of his six fellow card players, Officer Noble's identification of Russell, and the account of another inmate, Kevin Dean, who also said he saw Russell commit the crime – qualified as new because it could all have been available at trial, had Amrine's lawyer only been diligent enough to unearth it. In other words, having an incompetent lawyer (and Amrine's public defender was one of the worst) was no excuse.

This definition of "new" evidence sets a legal precedent in the United States, one that appears to contradict the Sixth Amendment of the Constitution guaranteeing the right to effective representation in court. Whether it stands the test of time and future legal challenges remains to be seen, but it would be a mistake to see Judge Gaitan's arguments as somehow out of step with the judicial mainstream. Rather, they are entirely in tune with a prosecutorial culture that has always been several notches more vindictive than any other western country's and which, in recent years, has demonstrated unprecedented ruthlessness in sentencing criminals of all stripes.

Joe Amrine tells his story with the urgency of a man who knows that time is not on his side. His narrative, shot through with quiet rage, is remarkable for its eloquence and for its lack of adornment or self-pity. Over the three-and-a-half hours that we spend together, he does not repeat himself once. His great, intense tirades are like the gasps of a drowning man.

He was brought up in the projects of Kansas City, the sixth of 10 children. His mother was a seamstress; his father worked in packing houses between long periods of unemployment. He and his brothers quickly fell into a pattern of petty crime: shoplifting, purse-snatching, the occasional burglary. By the age of 15, he had dropped out of school. By 18, he had fathered a child. At 20, he was arrested on multiple robbery charges and sentenced to 15 years in prison. Had his life followed the trajectory of his siblings, he might have been paroled after a few years and clawed his way back to a normal life. His brother Fred, for example, was imprisoned at the same time as him but now leads a respectable existence back in Kansas City, a father and grandfather with a semi-skilled job working for a conveyor belt manufacturer.

Amrine's misfortune was to be assigned to the Missouri State Penitentiary, an institution reserved, as he put it, for "the hard of the hard". He should not have been put in a maximum-security facility, but the judge who sentenced him did not want him in prison with his brother, and Amrine simply drew the short straw. The racial politics at MPS, which had been integrated just four years before he arrived, were incendiary. Inmate killings were not uncommon, and the victims were invariably black. Conditions deteriorated precipitously in 1982, when 100 hard-core white inmates were transferred from another prison following the murder of a guard. The toughest whites, almost all of them members of the Aryan Brotherhood, used gang rape as an instrument of control over the blacks; the toughest blacks did the same with the weakest whites.

In this atmosphere, Amrine was determined to prove himself, as a matter of pride as well as survival. "I had a chip on my shoulder," he says. "I was mad." He was strong enough to avoid being raped, but had to be ever-vigilant to avoid falling victim to the intrigues that fuelled violence on either side of the black-white divide as well as across it. If he was unpopular with the guards and the warden – who turned a blind eye to the rapes as well as the weapons, drugs, alcohol and pornography that flooded into the prison – it was in part because he refused to feed them information or cooperate in any way. "My momma told me that you don't tell the police nothing," he says.

Gary Barber's murder did not happen out of the blue. According to Kevin Dean, an eyewitness to the crime who was the leader of the Moors black prison gang, Barber had stepped out of line with his sexual behaviour towards his black fellow-inmates and had it coming. One week before the stabbing, Barber and Russell got into a fight and were both locked down in solitary confinement. Their encounter in the rec room was their first following their release from confinement just two hours earlier.

Russell was arrested first after the murder, and he immediately mentioned Amrine as an alternative possible suspect. A rumour had gone around that Barber had got Amrine drunk and taken advantage of him sexually. The rumour was untrue, but Russell claimed it had upset Amrine so much that he not only murdered Barber but bragged about it afterwards.

From the beginning it was clear the prison authorities were desperate for inmates to come forward as witnesses. It probably didn't matter to them whether Russell or Amrine took the fall; the fact was that one of them, Russell, was prepared to blame the other, while Amrine refused to cooperate in any way. As Amrine's lawyer, Sean O'Brien, puts it: "This was never a search for the truth, it was a search for snitches." Amrine concurs. "They didn't like me," he says. "They had nothing else to go on. Just another inmate dead, that's the way they looked at it. If I'd said Russell did it, you'd be sitting talking to him now."

Finding corroborating witnesses was not hard, as the prison authorities themselves later admitted. "Inmate Ferguson was easily coerced," the lead investigator into the murder, George Brooks, acknowledged in post-conviction testimony. Poe later said in a 1996 affidavit: "Before trial, Brooks and [his deputy John] Hemeyer came to see me at least five to six times. Each time they would go over their facts with me so I'd be ready for trial."

The trial was brief, and notable for its lack of any serious challenge to the prosecution. Amrine's trial lawyer, Julian Ossman, had taken no depositions, did no investigations and – according to jurors as well as Amrine supporters – gave the impression he had never previously talked to many of the witnesses. Amrine tried to protest directly to the judge, but was told to keep quiet; in another Catch-22, he was told that if he had anything to say he should do it through his lawyer.

The Amrine case opens a window on to multiple horrors within the US criminal justice system, not just the shortcomings of the death penalty. In their sworn statements, Poe and Ferguson painted a picture of a living hell – of systematic rapes, of stabbings, of young wayward lives brutalised to a point where rehabilitation becomes an impossibility.

The prison authorities clearly knew all about the rapes and the "daddy" system at MSP because the investigators talked about it in their court testimony. There was never any question of prosecuting the rapists, however, or disciplining the officers who tolerated it and exploited their behaviour. In America, prison rape is something that chat-show hosts joke about on late-night television, not a cause for scandal.

Yet Amrine has attracted a growing band of supporters. O'Brien, a former public defender whose private law practice in Kansas City specialises in trying to overturn death sentences, has been instrumental in building up the case for his innocence. Amrine's case was also featured in a controversial Benetton catalogue on death row a couple of years ago; more recently he was the subject of a documentary produced by the University of Missouri communications department.

The cold reality, however, is that only one man can prevent his execution, and that is Missouri's governor, Bob Holden, who is currently considering a petition for his pardon. A few weeks ago, a group of Amrine supporters visited Governor Holden's offices at the state Capitol in Jefferson City and handed over a copy of the documentary but there are few grounds for optimism in a state that seems to believe it never makes mistakes.

Something about the Amrine case must have got to the authorities, because they are increasingly reluctant to talk about it publicly. Jay Nixon, Missouri's attorney general, has not said a word, and neither has Governor Holden. Amrine's original prosecutor, Tom Brown, now promoted to a judgeship, has spoken up in the past – notably to concede that without the three witnesses he could not have tried the case – but he too has refused to comment for months.

This lack of engagement by the men who hold his fate in their hands infuriates Amrine. "As far as they are concerned, we're just paperwork," he says. "There are no emotions attached to the motions, briefs and execution warrants. For them, this is just a job coming to an end."

The prosecutorial culture that has ensnared Joe Amrine is not just confined to Missouri. In fact, it is the very same prosecutorial culture that informs President Bush's war on terrorism. The White House may wish to invoke a nobler tradition of US justice as it cracks down on its enemies, but it has also announced its intention to try captured Afghan fighters without any right of appeal to the civilian appeals courts, and has talked about keeping prisoners locked up indefinitely even in the unlikely event that they are acquitted.

One can argue, as many clever lawyers have, that the struggle against al-Qa'ida requires extraordinary measures entirely separate from the domestic criminal courts. In reality, though, the two systems are not so very far apart. Cases such as Joe Amrine's have taken on a peculiarly global resonance, not least because the Bush administration's chief law officer and anti-terrorist enforcer, John Ashcroft, has been a consistent voice over the years in favour of tougher sentences and restrictions on the right of criminal appeal. Ashcroft was Missouri's attorney general when the Barber murder was first investigated and later, as governor, helped appoint the judges who strangled Amrine's case on appeal.

Amrine, meanwhile, continues to fight his daily battle against despair. But the odds are stacked against him. When he was first transferred to Potosi, the death-row prisoners were mixed in with the general inmate population, and for a while life there was relatively comfortable. He had his own cell, plenty of exercise time and access to radio, TV, computer games and CDs. Slowly, though, those privileges were removed. Amrine has now had six different cellmates who have gone to the execution chamber ahead of him. Watching them being taken away for the last time, he said, was an experience that defied description. "It is like a sneak preview of what I've got coming," he says. "It takes a part of my resistance, my energy, my belief. It is slowly breaking me down."

Last October, the prison authorities claimed to have found a razor blade in Amrine's cell and isolated him from the rest of the prison population. (Amrine says the razor blade was planted.) One of the consequences of this is that he is no longer allowed to receive visits from his family. He is angry, but not surprised. After 25 years inside, nothing surprises him any more.

O'Brien is equally bleak in his interpretation of his client's treatment. "People who enforce and carry out the death penalty are not mainstream thinkers. They are not like you and me," he said. "This is a system that changes people, and the most evil thing is that people rise to positions of authority because of it. Why do you think there has been only one pardon in the past 10 years? In Missouri, we bury our mistakes."

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