Having spent 15 years in prison, James Newsome knows how far the tentacles of the Illinois Department of Corrections extend. So when he decides to respond to a prisoner on death row who's trying to reach him, he doesn't just call the Pontiac Correctional Center and leave a message. Instead he gets a third party to call and leave a message for a fourth party, another death-row prisoner who happens to be the brother of a friend. Prison staff then deliver the message--instructions for the fourth party to call a certain number at a certain time. When the fourth party calls, Newsome answers, accepts the reverse charges, and then asks him to put "that guy" on the phone. It's the best way to ensure that nobody knows about their conversation.
Newsome knows that even something as innocuous as a call home might be monitored, so he and the prisoner, Dennis Emerson, carefully avoid using each other's names or mentioning too many details about their cases. Newsome worries that if the wrong people hear them talking, important documents could be destroyed.
On September 26, 1980, a jury found Newsome guilty of armed robbery, armed violence, and murder. Together those crimes were punishable by death, but on February 11, 1981, the judge sentenced him to life in prison. On that day he became N10455, a charge of the Illinois Department of Corrections.
Last November a computerized investigative tool called AFIS (automated fingerprint identification system) finally identified the fingerprints at the scene of the crime for which Newsome was convicted. They belonged to Emerson.
Judge Thomas Fitzgerald granted Newsome a new trial and released him to his mother's home, where he was confined with an electric monitor. Prosecutors elected not to retry him, and on January 4, 1995, he was released from custody. Six months later Governor Jim Edgar pardoned him and ordered his record expunged, clearing the way for him to seek financial compensation from the state through the Illinois Court of Claims.
Since his release he's been in the media spotlight, developing a reputation as a self-taught scholar of law and an outspoken critic of how the judicial system operates. He's been portrayed as a man who knows how to negotiate that system and who skillfully and tenaciously dug himself out of hell. His attorney at the time of his release, Richard Kling, insists that but for Newsome's own efforts he'd still be locked up.
In prison he had earned a bachelor's degree, become a state-certified paralegal, and started studying the police and court files pertaining to his case, which he obtained through the Freedom of Information Act. He'd always blamed his predicament on overzealous police and prosecutors, inept defense counsel, a biased jury. But as he talks to Emerson he begins to think something far more insidious may have occurred.
Emerson's voice is pleasant, somewhat soft but deep. He responds to questions in a calm, even tone and seems surprisingly unguarded. It's not the voice one might expect from a man with a long rap sheet that ends with the brutal 1979 murder for which he's on death row. His criminal history spans a decade and includes arrests for a weapons violation, possession of stolen bank notes, and armed robberies. But as extensive as his record is, he says, it's incomplete--it should contain something about one more murder.
He tells Newsome that in February 1980 police arrested him for unlawful possession of a firearm. Emerson says he gave them an alias but his fingerprints revealed his true identity. Then a background check--a routine procedure before releasing suspects on bond--revealed two outstanding murder warrants. "A guy in a suit woke me up in my cell," he recalls. "He said, 'I'm from the state's attorney's office. We've been looking for you for two murders. Do you have anything to say?' I said, 'Yes. Would you leave so I can get some rest?'"
But prosecutors pursued charges against him for only one of the murders, the August 1979 killing of Delinda Byrd. He was found guilty, sentenced to die, and imprisoned. He expected to be brought back to court to face charges for the other murder, but months passed and no one mentioned it. So in early 1981, unsure if charges were pending against him, he filed a motion for a speedy trial, which gave prosecutors 120 days to bring him to trial. There's no statute of limitations on murder cases, and he hoped the motion would either propel prosecutors to act on the case or prevent them from doing so down the road. To his surprise, Emerson says, nothing came of it.
Now Emerson says he knows why: James Newsome had already been convicted of the crime.
Nothing has been found in the court files to substantiate Emerson's claim that he was wanted for a second murder, let alone the one Newsome was charged with. Emerson acknowledges that the police and assistant state's attorney, whose name he can't remember, never told him anything specific about the second murder. But last year he heard on the news that the discovery of his fingerprints at a murder scene exonerated Newsome, and he put two and two together. Without admitting any guilt, he says he has "no doubt" that someone suspected him of that crime from day one.
After talking to Emerson, Newsome is so enraged he can't sleep. For a decade and a half he was subjected to dehumanizing conditions on a daily basis; his reputation as an honest, law-abiding citizen was marred; his family was ripped apart. While he sat in prison, his toddler grew up and had a daughter of her own, and his uncle, who'd been like a father to him, died of cancer. In prison he witnessed five people being bludgeoned, stabbed, or choked to death.
For 15 years he's been thinking and rethinking his case almost every day, wanting to know who's responsible for his lost years, trying to understand how a single murder turned into a two-victim crime. His life has become inseparable from the search for an answer. Now Emerson was suggesting there had been official wrongdoing.
Given what Newsome has learned in the months since their conversation, his belief that there was some kind of conspiracy has only grown stronger. But he concedes that while malfeasance might have landed him in the courtroom, it probably wasn't what landed him behind bars. At his trial the safeguards that prevent an innocent person from going to prison were in place. His defense counsel, though no dream team, put forth a defense, offered pretrial motions, raised objections, and argued the truth--that Newsome hadn't killed anyone. Yet the jury deliberated and found him guilty.
Legally he'd had a fair trial. He appealed the decision, and the appellate court upheld his conviction. So what went wrong? "Murphy's law," he says. "Everything that could have."
James Newsome was born into a religious home in Chicago on January 2, 1955. He attended a Catholic elementary school, where he was an altar boy. When he was ten his parents separated. Irene Newsome had a full-time job at Spiegel, inspecting orders to ensure that customers received the correct merchandise. She worked hard to provide the basic comforts for her three children, but after splitting up with her husband she couldn't continue paying for James to attend parochial school or take private clarinet lessons.
In 1965 Newsome, his mother, older sister, and younger brother moved to the middle-class black neighborhood of Auburn Park and settled on the 8000 block of South Peoria Street, which was made up of owner-occupied two-flats and single-family homes with groomed lawns. It was a stable, insular community where residents watched their neighbors' children grow into adults and a block club provided opportunities to socialize. Friends and family called Newsome by his middle name, Allen. They considered him a thinking person, someone who used his head rather than his fists. A childhood friend, Frank Alerte, remembers that people admired Newsome for having a mind of his own.
Newsome rarely strayed from the neighborhood, much less the block. But as he grew older he became restless, wanted to see something of the world. At 18 he moved to Denver and then California, and in 1977, when he was 22, he ventured to Hawaii with his girlfriend and daughter in the hope of starting a business. He wanted to become independent of the unpredictable work he'd been doing on and off for years--mostly manual labor and some freelance photography. He didn't want to struggle as his mother had. He wanted his family to have some luxury. But after two years in Hawaii he wasn't having much luck.
He returned to Chicago in October 1979 to visit his family and started looking for options that might convince him to stay. He contacted Marvin White, a like-minded man he'd met a couple of years earlier, and they rekindled their friendship. White worked at a clothing store on the north side, and Newsome says they spent time together shopping and talking about the future. "I saw some of the same qualities in him that I saw in myself. He was ambitious in business ventures. He wanted to stay ahead of the pack. Of course we never had the money to implement any of the things we talked about."
Newsome had come to believe that to make a good living you had to be your own boss. When he was 17 he'd quit high school, thinking all he needed was a job. "When you're a teenager and your mother doesn't make a lot of money you want things. And I wanted to earn an income." By that time he'd lost interest in school anyway--mostly because he didn't trust his teachers. He remembers that in the wake of Martin Luther King Jr.'s assassination and the U.S. involvement in Vietnam, students were dropping out in droves, rioting, becoming accustomed to questioning authority. He didn't follow many of his peers into drugs or gangs, but he did drop out of high school, because of what he calls "staff insensitivity to the African-American population." His social consciousness had begun to stir, though he says he didn't realize how systematic racism was until he was arrested.
On October 31, 1979, Newsome spent the afternoon helping Marvin White move from an apartment on Addison to one in Edgewater. After hours of lugging furniture they took a dinner break and shot a few more games of pool than they'd planned. Around midnight they were on their way to make the last few runs between apartments when a police siren pierced the air. They pulled over in the flickering blue light. Startled, Newsome looked at White, who was driving, and muttered, "What's the problem?"
Speaking over a microphone, a police officer ordered them to show their hands while stepping out of the car, an olive green Ford belonging to Newsome's brother that police told them had been the getaway vehicle in a purse snatching the previous morning. A swarm of backup squads soon surrounded Newsome and White, and the next thing Newsome knew he was pushed against the hood of the Ford, the cool barrel of a gun on the nape of his neck. Silently Newsome begged himself not to twitch.
Newsome and White were escorted into the police station at Halsted and Addison an hour and a half after the police daily bulletin had made its rounds, carrying the latest information on missing and wanted persons to officers all over the city who'd reported for the midnight shift. There'd been more murders in October than in any other month that year, and the desk sergeant on duty, James Eckner, had noticed that the bulletin contained a composite sketch and vital statistics of the perpetrator of yet another.
Both Newsome and White roughly fit the description: a brown-eyed African-American man 29 years old, five feet nine inches tall, and 145 pounds, of medium build and complexion, and sporting a mustache and short "natural" hair. Eckner pointed out the similarities to the arresting officers, and, according to Newsome, they started eyeing White. To lighten the mood or to play along with what he hoped was just their perverse idea of a joke--he wasn't sure which--Newsome mustered a laugh and said, feigning surprise, "Marvin, did you commit a murder?"
But the police let White go home after learning that Newsome lived on the south side near the site of the murder. He spent a sleepless night in lockup, and the next morning officers from Area Two's homicide unit transported him to the station at Cottage Grove and 91st for questioning. It was as if the purse snatching had never occurred. The questions had only to do with the murder of a white man.
Newsome pondered his options: he could remain silent--it was his right--or he could be forthcoming about where he'd been in the hope that the police would rule him out as a suspect. The truth was that he knew nothing about the slaying of a south-side grocer, had never heard of the victim, Mickey Cohen, and had never set foot in Cohen's store, though it was just blocks from his home. He replayed the mundane events of October 30 over and over in his mind--watching soap operas with his girlfriend and her sisters, driving to the north side to pick up White, shopping with him at the Woodfield Mall.
Like almost any other 24-year-old black man raised on the south side, Newsome understood that talking to the cops could backfire. He had once been arrested at a political rally and another time had been caught trying to use a bogus prescription. Nothing came of these run-ins, but he'd heard enough horror stories from friends to believe that the white officers interrogating him were eyeing their prey. If nervousness or stress or a memory lapse caused him to slip while recounting the past couple of days, they might consider him disingenuous, use any inconsistency against him. He decided only to insist he was innocent and wait for a lawyer to get him out of the mess.
But the mess just got worse. Newsome says assistant state's attorney Robert Higginson tried to persuade him to confess by saying that otherwise "we'll fry your ass." When he refused, Higginson approved murder charges against him.
There were 856 murders in Chicago in 1979, the most in five years. Early in 1980 the police superintendent, Richard Brzeczek, boasted to the Chicago Tribune that police had solved 601 of them, 70 percent. One that he mistakenly considered solved was the murder of Edward Michael Cohen, who went by the nickname Mickey.
The 72-year-old Cohen had been selling groceries in Washington Heights on the 8900 block of South Loomis for some 50 years before he was killed by a man who pumped two bullets from a revolver into his head, went through his pockets, and raided the cash register, making off with at least $100.
In 1979 Mickey's grocery store shared a block with a couple of bars, a hardware store, a bakery, and a few other small businesses in a community that was 98 percent black and had an unemployment rate twice the national average. Cohen, who stood just five foot three and was the only white businessman on the street, kept a gun under the counter. He'd been held up twice before. Six years earlier he'd foiled an attempted robbery by shooting the assailant. The same year he'd chased away four would-be robbers, one of whom shot him in the neck before fleeing; the bullet remained lodged there for the rest of his life. Nevertheless Cohen was a trusting man. If a regular customer didn't have enough money, he would offer credit.
With just a produce counter lining the front window and two aisles of boxed and canned foods, Mickey's usually attracted only neighborhood residents--and only those who weren't looking to stock up. But on Tuesday, October 30, 1979, sometime between 1:30 and 1:45 PM, a stranger dressed in black entered the store. He walked past Josie Nash, the store clerk, and over to the counter, where the hefty Cohen, with his shock of white hair, sat on a stool. The man asked for Kool-Aid.
Cohen told him the drink mix cost 35 cents for two packets. I only want one, the man said, but he put two on the counter anyway. He then walked around the store, collecting a bottle of pop, a banana, and a Hostess snack cake, which he set on the counter beside the Kool-Aid. Cohen rang up and bagged the groceries, but the man continued browsing, picking up a box of Hamburger Helper and quickly returning it to the shelf. He handed a bunch of grapes to Nash, who weighed them and passed them along to Cohen, who rang them up and put them in a paper bag.
At that point a regular customer named Anthony Rounds entered the store and struck up a conversation with Cohen. The man in black began another stroll down an aisle, and Cohen, getting suspicious, fished under some grocery bags on a shelf under the counter, retrieved his gun, and stuck it in his pocket. He told Nash to watch the register while he manned the produce area, closer to the front door. Cohen continued to talk with Rounds for another ten minutes or so while the man in black roamed the aisles. Eventually the grocer urged Rounds to leave. Rounds stepped outside and walked around the corner, where he waited.
The man in black approached the counter with a carton of milk. Nash rang it up and announced his total, $2.68. Then some kind of silent confrontation between Cohen and the man in black ensued--perhaps a knowing stare or a movement that intentionally or accidentally exposed one or both of their guns. Nash noticed only that the strange man was pulling something out of his belt and that Cohen was fumbling with something in his pocket. Instinct told her to run to the back of the store, where she closed herself in the walk-in cooler. She heard, "Don't do that, old man," followed by a few pops. Rounds, who'd also heard the gunshots, ran back into the store, bumping into the man in black as he rushed out. Rounds found Cohen lying on his back on the floor. His head was in a pool of blood, and his pants pockets had been turned inside out. He was dead. One bullet had entered his brain through his forehead; another had entered his neck and plowed through his voice box and windpipe, winding up in his chest cavity.
Police arrived and secured the scene. They interviewed Rounds and Nash, canvassed the neighborhood for more witnesses, and dusted the items Rounds and Nash had seen the assailant touch with his bare hands.
Officer Theatrice Patterson, the fingerprint examiner assigned to the case, studied the 16 latent prints recovered from the groceries Rounds and Nash said the killer had touched, and determined that they didn't belong to Cohen, Nash, or Rounds. They didn't belong to Newsome either, but that didn't clear him. "The fact that the prints don't match a suspect doesn't mean anything," says Patterson now. "You can touch an object and it's possible that your fingerprints won't be on them. Because if you touch something and I come and touch it after you, prints could become superimposed over each other, and then they're not going to be distinguishable."
Throughout his imprisonment Newsome urged reporters and lawyers to find out who'd left the prints. "That's something that consumed me," he says. "I needed to have that particular part of my case resolved to my own personal satisfaction. The police officers had told me that the guy who committed the crime left his fingerprints. First of all, I wasn't supposed to be sitting in jail anyway, but that clearly told me I shouldn't have been sitting in jail."
When a suspect is arrested impressions of all ten fingertips are pressed onto a card containing his or her biographical information. The card is filed according to a fingerprint classification code at police headquarters at 11th and State streets, and a copy of the card is sent to the FBI and entered in a national registry.
Latent prints, the prints recovered from a crime scene, are usually only partial impressions from one or more fingers. At the time of Newsome's arrest latent prints were supposedly useful only if they matched those of a suspect. If they didn't match, Patterson says, the department was under no obligation to determine whose prints they were. "It would have been physically impossible," he says. Even in a capital case like Newsome's police didn't search their files for a match. There were too many print cards to go through--hundreds of thousands of them containing the prints of every living person who'd ever been arrested in Chicago. "They estimate it would have taken one man--working five days a week, eight hours a day, 40 hours a week--33 years to take one print and go through those files like that."
It wasn't until seven years after Newsome's arrest that the Chicago Police Department acquired a $4.5 million computerized system that made it possible to compare a latent print with the prints on file in a matter of minutes. Before that, says Patterson, "No matter how horrible the crime, there was nothing we could have done with it."
"This is the case that just won't die," Newsome says after his conversation with Dennis Emerson. In part it won't die because Newsome keeps talking about it to reporters, who put him on TV and on the radio and in the paper. But it also won't die because the determination that got him out of prison is still in overdrive.
At 40, Newsome is handsome and clean-cut. His hair is cropped short--a few strands of gray twist through it--and his thin mustache looks as if it's been traced on. But despite his tidy appearance--even his jeans look pressed--he worries that he'll never be able to remove what he calls the "social stain" that marks an ex-prisoner. "It will always be there, because the society in which we live has become intolerant of crime and the people who've become associated with it. Even though I wasn't guilty, [in prison] I was in the company of those who were. Because of that I may be construed to be of a criminal mentality, and I will always have to deal with people's reluctance and hesitation to accept me, people who won't embrace me wholeheartedly until I do something extraordinary--like save someone falling from a building--to redeem myself."
He tries to change people's perceptions. He's told his story to groups of people ranging from Rotary Club members to junior high school students. He'll sit on his couch and discuss his case for hours on end, and if you tell him you can talk later, you don't want to wear him down, he's likely to look surprised and say, "Wear me down? I've been in prison for 15 years. Do you know what it means to me to be able to invite someone into my home, to open the door for someone, and have a conversation with someone on my own terms?"
He can recite the details of his case as easily as his phone number. For years he's been reading and rereading the documents--more than 1,000 pages of court proceedings and a handful of police reports--trying to squeeze sense out of them. They tell him only that a series of coincidences wound up painting a picture of reality that had nothing to do with the truth. Now that he's out of prison he wants to hear directly from the people involved.
He's managed to track down Nash and Rounds, neither of whom is listed in the white pages. But when he showed up on Rounds's doorstep, he was turned away. He expects the same treatment if he approaches Nash, who refused to talk to a law student working on his case last year.
The jurors could tell him what convinced them of his guilt beyond a reasonable doubt and what occurred during deliberations, and he has a list of their names and some of their numbers. "I would like to know what their thinking was, to understand the mindset of people deliberating someone's life and to assess how their stereotypical views and biases and prejudices factored into it. I also need to get a reaction from them, so I know that they're learning from the grave and unfortunate mistake they made." Still, he has yet to call any of them.
One day he drives to the site of the murder. His life, his history is inextricably linked to the little room that used to be Mickey's grocery store, that's now part of a bakery and catering company and stocked with balloons and greeting cards and party favors. He reenacts the murder he knows so well but didn't commit. A 13-year-old girl, the bakery owner's daughter, stops drawing and walks to the space between the rooms where the wall was knocked out after Mickey's closed. She's heard about the incident from her father, Chuck Campbell, who owns the building and was working in the bakery the day Cohen was killed; her father has told Newsome he was the first person on the scene and that he saw the assailant running away. She watches Newsome pace the room playing clerk and grocer and customer and killer, narrating the events that occurred before she was even born.
Newsome's first impression of William Wise, the private attorney who represented him in 1980, was that he was sort of slick, saying things like "I just won six murders--I'm on a roll." That track record didn't impress Newsome, who knew that winning streaks come to an end, but he still trusted Wise, perhaps because he trusted the criminal justice system. Even after he heard the verdict he asked Wise to handle his appeal, sure his innocence would be apparent to a higher court.
Now Newsome can hardly believe how naive he was. He thinks courtrooms are nothing more than arenas where lawyers' reputations are made. "I was part of the stupidity they go through every day when they're trying to make a name for themselves. I was a statistic, that's all. I wasn't a human being to Wise or to the state's attorney."
Today Wise is a partner in the firm Wise and Kuzas and works out of an office on the 20th floor of a Loop building. He has a huge wooden desk that faces away from a floor-to-ceiling window offering a spectacular view of the city. Among the wall hangings are a diploma from John Marshall Law School, from which he graduated in 1965, a plaque noting his inclusion in a 1994-'95 edition of Who's Who, and three framed court drawings of a high-publicity murder-for-hire case he tried around the same time he defended Newsome. Wise also keeps a portfolio of newspaper clippings chronicling his career, including courtroom coverage of cases he's tried and articles about what turned out to be an unsuccessful run for judge in 1984.
A practicing lawyer for nearly 30 years, Wise agrees with Newsome's take on courtrooms. "I guess you really have to have a tremendous ego to be in this business, constantly trying to anticipate, outsmart, and figure out what someone's doing. Somewhere there's a search for the truth, but it can get lost very easily." He says that Newsome's case "brought to light the fallacies of the criminal justice system, the fallacies of the jury system, the identification processes, and the prejudices of all involved."
Locke Bowman--an attorney who works for the not-for-profit MacArthur Justice Center, who filed Newsome's petition for executive pardon after his release, and who will represent him in a case against the state asking for financial compensation--has read the transcript of the trial and agrees that the outcome of Newsome's case is in part a result of the way the judicial system and the people who run it function. "I don't know to what extent it's human nature and to what extent it's something more troubling about our culture and system, but all of us, including defense lawyers, become inured to the criminal process and start acting as if we're processing people through rather than really trying to ascertain the truth. The sheer volume of cases enables us to get in that mindset, so it's very eerie to read through the transcript of James's trial and to realize that even though this trial is unfolding like countless other trials that are taking place every day in the criminal courts building in Chicago and elsewhere around the country, the fact is that he didn't do it and that they had the wrong guy. James's case is an extraordinary lesson, because if you have eyewitnesses whose credibility is challengeable, if you have no physical evidence, and, even better, if you have physical evidence that tends to suggest the state has failed to explain everything about this occurrence to the jury, you have a lot more to work with than you do with many cases."
Wise first tried to get the case thrown out on the grounds that police had detained Newsome without reasonable suspicion that he'd committed a crime. Even today the reason he was pulled over remains a mystery to people familiar with his case. Lawyers who've represented him over the years use words like "bogus" and "puzzling" to describe his arrest, and surmise that almost any young black man of average height and weight who'd been compared with the police sketch in the daily bulletin might have had the Cohen murder pinned on him. But it was Newsome who was in the wrong place at the wrong time.
Around 3 AM on October 31, 1979, Shirley Wills unwittingly set in motion the chain of events that led to his arrest by reporting that she'd been confronted in Lakeview by a black male in his early 20s who grabbed her purse and threatened to shoot her, then fled on foot. According to police reports, Wills described the man as standing between five foot six and five foot eight, with a thin build and a medium-dark complexion. Officer Bruce James drove around with Wills for about 20 minutes looking for the assailant and the purse.
A day later and seven blocks from the site of the purse snatching, James stopped Newsome and White. Police asked Wills to come to the station to identify the men, but she never showed. Newsome was then compared with the sketch of Cohen's murderer. The sketch didn't indicate that the perpetrator had moles on his face, though Newsome has moles on the bridge of his nose near his left eye and just below the left side of his mouth. Nor did it show a nose that jutted into a slight hook, as Newsome's does. The sketch, says Bowman, was so nondescript that it "looked like every black male you've ever met."
In court Officer James said he had legitimate reason to stop Newsome, since shortly after the purse snatching two citizens had reported that the offender had got into a car with the exact license plate of the car in which Newsome and White were riding. The two citizens, he said, had refused to give their names.
Bowman now wonders if the report was made up. "Who these individuals were, what their motivations were, or whether they exist is something that we may never know the answer to. It is a troubling circumstance that there is a disparity between the victim's account of the attack and this information from these two unnamed persons. It seems totally inconsistent, it's uncorroborated, and it places James's car in this situation. The reality is that James and another African-American young man were driving in an area in the city of Chicago that is predominantly white. The arrest itself is very peculiar, and so is the notion that people would come forward saying that the person who committed this crime is in a car with the exact six digits of the license plate of James's car. Go figure. How often when you see a car can you get the license plate?"
But Judge Richard Petrarca refused to throw the case out.
Both Wise and Newsome believe the trial was a disaster, but for different reasons. Wise blames mainly the jury, and Newsome blames mainly Wise. "My case was like a house of cards," Newsome says. "A good attorney could have blown on it and watched it topple."
Wise says, "I worked my ass off," and if he had to do it over he'd do it the same way. "To this day I don't see how the man was found guilty."
The state had no physical evidence linking Newsome to the crime. A search of his house had turned up nothing--no gun, no blood-spattered clothing, no property belonging to Cohen. But prosecutors did have witnesses who placed Newsome at the scene of the crime and in the vicinity moments before it occurred. Rounds and Nash identified Newsome as the man in black, the man they'd seen handling the groceries, the man Rounds had collided with. The prosecutors also had a man named John Williams, who said that he'd seen Newsome near Mickey's just minutes before the murder. Another witness, Willie Smith, said that just after the shooting he saw a man getting into a green Ford like the one Newsome was riding in when police pulled him over.
But the defense had alibi witnesses--Newsome's girlfriend, Christine Doyle, and two of her sisters. And it had good questions about the validity of the eyewitnesses' identifications.
Just months before Newsome's arrest an article on eyewitness reliability appeared in the Journal of Applied Psychology. The article documented the results of a staged-crime study in which 34 percent of witnesses could not identify the "perpetrator" in a six-man photo lineup, 31 percent accurately identified him, and 35 percent identified the wrong person. The study only reinforced what many in the legal profession considered a truism: witness identification isn't the most reliable form of evidence. Yet juries tend to think otherwise--it's often a convincing and pivotal moment in a trial when a witness fingers the defendant.
"There's a popular belief that when you see someone you can remember what they look like," says Norval Morris, a University of Chicago law professor and criminologist who met and befriended Newsome in the late 80s. "That isn't true in general, and it certainly isn't true in crisis. Yet it's regarded as the most cogent of evidence."
The three eyewitnesses who identified Newsome also told different stories about the lineup, and some of their testimony conflicted with what they'd said on record earlier, in a pretrial hearing. There were discrepancies about whether they viewed it together, whether they discussed beforehand what the perpetrator looked like, and whether police indicated a suspect was present.
Newsome says he remembers the lineup as if it were yesterday. He claims he was led through a garagelike area at the station at 115th and Indiana, up a small flight of stairs, and into an interrogation room, where he was joined by five other men. They formed a line, and then three witnesses came to the doorway at the same time. He remembers that one pointed right at him. Later, he says, he saw that witness back at Area Two headquarters with a holster strapped to his side. Newsome believes the man was a police officer, not the third witness, Anthony Rounds--an assertion that's given more weight by Rounds's account of the lineup, which differed drastically from the testimony of the other witnesses and that of a police officer who'd been present. Rounds told jurors he took instructions from an officer speaking into a microphone and at a preliminary hearing said he viewed the lineup through a two-way mirror. "I don't know what lineup he attended," Newsome says, "but he didn't attend the lineup I was at, because that scenario he described was not the scenario in which I was a participant. In other words, we're talking about Anthony Rounds identifying somebody else in some other lineup."
Josie Nash, the store clerk, testified during a pretrial hearing that she'd picked the killer out of a mug book after the murder and showed it to Anthony Rounds, who agreed it was the man he'd bumped into just after the shooting. Nash said she later saw the man she'd picked out of the mug book at the lineup. But Newsome's picture had never been in a mug book.
Dennis Emerson's probably was. "Emerson had been arrested on a number of occasions in that same area in the city of Chicago, so it makes sense that he would have been in the mug book," says attorney Richard Kling, who represented Newsome at the time of his release. "There are many mug books, so she may or may not have seen him. But we know the picture should have been there, and James's picture was not. I don't know who she saw or whether she was mistaken or whether somebody was lying."
At Newsome's trial three months later Nash denied that she'd picked anyone out of a mug book and denied that she'd discussed the matter with another witness--inconsistencies Wise brought to the attention of the jury.
The state's other main witness, John Williams, testified that about a half hour before the murder he was walking on the street near Mickey's during his lunch break and saw Newsome offering to help two women carry groceries. Williams said he glanced at the man for about five or six seconds, but took "a good look" at the women, because "you know how men is when they looking at women." Even so, he couldn't recall the color of the women's eyes or hair or any other distinguishing characteristic. "Really cute" was the most descriptive he got. "You know how a man's mind wanders when he is looking at a woman," he said. Wise then asked him if his mind had been wandering, and Williams replied, "Yes."
"My whole argument was that the state's witnesses' identification was terrible," Wise says. "And even if you thought that James Newsome was sufficiently identified, he wasn't identified and proven guilty beyond a reasonable doubt. The witnesses were so thoroughly impeached. This was one case I could not see the jury believing any of these people--because all their stories were different as to what occurred."
Newsome thinks that had Wise conducted a basic investigation his alibi witnesses might have been believed. "My attorney talked to my witnesses ten months after the crime occurred," says Newsome. "That is unconscionable. When you have a case this serious, where they're asking for capital punishment, what do attorneys generally do right away? They go talk to the witnesses who claim to be alibi witnesses for the defendant. And what he would tell them is this: whatever you do, do not talk to anybody before you talk to me. Phone me right away, and then I'll be present whenever you talk to them." Wise says he may not have met with Newsome's witnesses right away, but that he or another attorney in his office had advised them over the phone against talking to the prosecution's investigators.
Newsome also thinks Wise should have subpoenaed phone records to corroborate his alibi, because he'd been exchanging phone calls with White for most of the afternoon about their plans to go to the mall. Wise doesn't remember discussing the phone records with Newsome, but says that even if he'd presented them in court they wouldn't have proved that Newsome had made the calls.
White, one of Newsome's main alibi witnesses, wasn't called to testify on his behalf. Wise instead implied that White, who also fit the generic description in the police bulletin, might have been the murderer. He wanted to raise the possibility that in their haste to name a suspect police arbitrarily chose Newsome. "I was trying to show that the police were so unfair in this case," Wise says. "They knew that the description [of the murderer] matched this other person as well, yet they just closed in on James Newsome." Newsome says Wise could easily have made this point without destroying the opportunity to use White as an alibi witness.
Wise didn't call fingerprint expert Theatrice Patterson to testify either, because the fingerprint results had been inconclusive. The decision wasn't odd, according to Patterson, who says that in 1980 he usually went to court only to present positive testimony--that latent prints matched those of the defendant. Christine Scott, a law student who worked on Newsome's case in the months before his release, took an affidavit from Patterson last year in which he said that if he'd been called to testify he would have said the probability was "very high" that someone who carried groceries to a cash register without gloves on would have left prints.
Wise also didn't put Newsome on the stand. Newsome says he wanted to testify. Wise says he advised against it, and Newsome agreed.
"James became very well educated when he was in prison," says Wise. "Hearing him speak today as against 15, 16 years ago, there's no doubt I'd put him on the stand today. He's also well versed in the law and tactics and things of that sort. At the time he was very emotional about this case and the fact that he thought that this was racially motivated. I don't know how calm he would have been on the stand. And this [lead prosecutor William] O'Connor was something else. He was a great prosecutor, and I wasn't sure that James could hold up to him. O'Connor would have gone for the jugular, and people do a lot of things when they're under pressure--and especially when they're on the stand. Sometimes they try to bait you into showing your temper or bait you into discrepancies. I thought his alibis would hold up. I thought the evidence produced, and the fact that the identifications were very bad, and the fact that the murderer touched all these items and James Newsome's fingerprints were not found in the store, should have been enough to raise doubt."
Yet despite instructions given to them by a judge, jurors often interpret a defendant's silence as guilt.
During the closing arguments Wise made the fingerprints all-important. "Were those the fingerprints of the person who perpetrated the crime? You're darn right," he said. "Do you think in the interest of justice and fair play they had a duty to find out whose fingerprints those were? You're darn right they did. And the reason that they didn't is because it would prove his innocence."
On rebuttal O'Connor used a bizarre argument to downplay the significance of the fingerprints: "If you follow Mr. Wise's logic, because Mickey Cohen's fingerprints were not in that store that Mickey Cohen did not get shot and die in that store. . . . Josie Nash did not stand in that store and watch Mickey Cohen get gunned down because her fingerprints weren't there, and Anthony Rounds was not in that store where he was a regular customer in October 1979, because his fingerprints weren't there."
O'Connor also undermined Wise's closing assertion that he'd never seen a case so lacking in proof beyond a reasonable doubt, intoning, "In my years as a prosecutor, this case has more evidence of guilt beyond a reasonable doubt than most cases that are tried in this country." He listed 11 concise points--including that Newsome and the perpetrator had the same hairstyle and that they'd both been seen in a green Ford--and after each one said, "That cannot be a coincidence." Each point on its own might have seemed trivial, but together they apparently seemed damning.
"When the state's attorney finished his closing argument I could have gotten up and clapped," Newsome says. "And I asked myself, who's he talking about? 'Cause that guy's guilty. O'Connor was a convincing guy--he knew what he was doing."
A 60-year-old juror named Joan Madden ran into Wise at a downtown restaurant after the trial and told him she was disturbed by the trial's outcome and admitted she'd had doubts. The two talked about the case, and Wise began to believe that the jury hadn't properly done its job. Madden gave an affidavit, which he used as part of the appeal, in which she said that midway through the trial she'd overheard three men agreeing that Newsome was guilty. She also said that during deliberations one juror rushed the others by saying she hoped they could reach a verdict quickly because she didn't want to give up her tickets to Camelot the following night. "I did a terrible wrong," Madden said in her affidavit, "and I want to make it right if I can."
Madden went on to say that she was confused by the jury instructions, which were written in legal terms that "we ordinary people didn't understand." She also thought they should have had the opportunity to explore a ruling of self-defense. She said the jurors were all certain that Newsome had been at the scene and that he'd gone to the store with the intention of robbing it. But she thought that since both the victim and the perpetrator had guns, Newsome might have shot in self-defense. But the instructions made it clear she couldn't consider that option. "The foreman read count number three [armed robbery] and we voted on it and agreed," she said. "He read number two [armed violence] and we all agreed . . . and then he read number one, which was murder, and he said, 'Oh, my god,' and hung his head. And I said, 'What is the matter?' He said, 'According to the way this is written if he was guilty of two and three we have to find him guilty of number one.' . . . I was so dazed and dumbfounded." Madden said that as she signed the verdict stating that he was guilty of murder, "I knew in my heart that it was not right."
When the judge met with the jurors after the verdict Madden said she told him, "I hope Mr. Newsome knows that we don't think he was guilty of murder." The judge, she said, "had a very surprised look on his face" but didn't ask her to explain what she meant.
Madden also said that after the trial she began to have nightmares she thought might have been brought on by guilt about her role in the conviction. Madden's husband says she suffers from Alzheimer's disease now, but that she never believed Newsome had committed murder; she'd always thought he'd killed in self-defense and therefore should have been acquitted.
Another juror, Karen Staskiewicz, who was in her early 20s at the time, now says she too was overwhelmed by the experience. When it was over she cried uncontrollably, threw herself on her bed, and wrote a ten-page letter about her confusion to her boyfriend. After that, she says, she repressed almost everything about the trial. When the news broke that Newsome had been wrongly convicted, she says she didn't even recognize his name. Staskiewicz, who still can't remember much about the trial, recently wrote Newsome a letter expressing her sorrow about the mistake. She says she thinks that back in 1979 she wasn't emotionally ready to be part of a jury, though she acknowledges that she would have argued otherwise at the time. She was in college then, still living at home, still somewhat sheltered. Determining Newsome's fate was the first important decision she'd ever made.
Madden's affidavit didn't persuade the Illinois Supreme Court or the U.S. Supreme Court to hear Newsome's case. "You can't impeach a jury verdict out of jurors' own mouths, or you could do it in every case," says attorney Kling. "People feel guilty, don't want to be held responsible. Affidavits are taken because you hope you can, but you can't. The only way for a jury verdict to be impeached is because of something extraneous, like bribes, threats, or if a juror does his own investigation and takes into consideration facts and or evidence beyond what is presented in court."
This was a capital case with a black defendant, a white murder victim, and no black jurors. "I didn't stand a chance," Newsome says. Wise says the prosecutors, who were asking for the death penalty, intentionally excluded blacks, dismissing at least ten from the jury pool. At the time attorneys were under no obligation to explain their reasons for eliminating potential jurors, something that changed in 1986 with Batson v. Kentucky, which stated that the systematic exclusion of people from a jury on the basis of race is illegal.
Wise threw Newsome's fate to the judge for sentencing--a decision he and Newsome made after hearing from other attorneys that Judge Petrarca wasn't one to impose the death penalty. Petrarca sentenced Newsome to life in prison.
Newsome walked into Stateville Correctional Center intent on one day walking out. From day one he refused to accept that he'd be a prisoner until he died. When his appeal failed and the higher courts refused to hear his case, he decided never to blindly leave his fate in others' hands again. From then on he would navigate his own way home.
"I worked extremely hard to learn the system so that I would be able to sit down and intelligently have a dialogue with whomever I enlisted to help me about what I wanted them to do as opposed to what they wanted to do for me." So he studied. He obtained his GED and bachelor's degree, took a few graduate courses, and became a qualified paralegal. He got a job in the prison library, where he spent as much time as he could. He became known as a jailhouse lawyer, advising other inmates and writing legal petitions for them. "I could get you a divorce in three months," he boasts, and adds that he even filed divorce papers for some guards.
He requested police and court files pertaining to his case through the Freedom of Information Act and solicited help from big-name lawyers and members of the media. He and his cousin Cheryl Foley started the Committee for the Release of James Newsome in an attempt to draw public attention to his situation. Foley contacted community activists, journalists, and experts she'd read about in articles--anyone she thought might be influential. But nobody offered to help. "Crime is so bad nobody wants to get involved," she says.
A few years into Newsome's sentence Channel Five's Phil Rogers, then working in radio at WBBM, took an interest in Newsome after receiving a letter from him. Rogers says it stuck out among the pile of letters from inmates crying foul because "it was very articulate." In part the letter read: "It is abhorrent that our judicial system has not seen fit to recognize an injustice when they have in their possession positive fingerprints that the actual perpetrator left on items he intended to purchase, a deposition from a juror attesting to the bias and prejudice that was innately a part of the composition of jurors selected, alibi witnesses."
"We all get letters," Rogers says, "but this one was just very, very intriguing. We started doing some stories on it. The governor came on the air once a month to answer questions, and James would call the governor and talk to him about his case. He was really aggressive." Newsome asked Governor Thompson to commute his sentence in 1984, but to no avail.
While working in Stateville's library one day that year Newsome read an article in the Illinois Criminal Justice Information Authority's newsletter, the Compiler, about the Chicago Police Department's plan to purchase an automated fingerprint identification system (AFIS), which could compare latent prints from a crime scene with all the prints in the department's files once they were entered into a computer database. He asked his cousin Foley to contact Lieutenant John Burzinski, the department's AFIS project manager. Foley persuaded Burzinski to accept Newsome's collect call from prison and talk with him about AFIS.
Burzinski explained that a fingerprint examiner photographs a latent print from a crime scene, enlarges it to about five times its original size, then copies the ridges onto tracing paper, ignoring foreign matter such as blood or dirt. The tracing is then reduced to the original size and scanned into the system. A database search produces the top few arrest cards that are likely to contain a print that matches the tracing. The fingerprint examiner then retrieves the original cards from the department's repository and compares them to the actual latent print before determining whether there's a "hit," a match. Newsome realized that running the latent prints from Cohen's homicide through the system could identify the man who killed Cohen if he'd ever been arrested in Chicago.
But it wasn't until 1986 that the Police Department finally acquired AFIS. In its annual report that year superintendent Fred Rice referred to the system as "the most effective crime investigative tool in the last 30 years." Matt Rodriguez, then deputy superintendent, promised the system would "prove to be effective in identifying offenders who until now have had their crimes go undetected because of the enormity of fingerprint files."
Meanwhile Newsome kept his nose in law books trying to figure out ways to get himself in front of a judge. "I always thought if I could just get back in court this would be resolved," he says. It was during this time that he met Norval Morris, a University of Chicago law professor who'd come to Stateville to do research for a case against the Department of Corrections. In his capacities as a librarian and a prisoner, Newsome assisted Morris for about three and a half years. A couple of months after they'd met, Newsome asked Morris to read his trial and appeals. "It was a dreadful trial," Morris says. "I got interested in it and him, and I started to find out about him. The whole thing made no sense." Morris became convinced of Newsome's innocence and started advising him in legal matters.
Newsome says he didn't know until early 1989 that Chicago had bought and was using AFIS. He contacted private attorney and former judge Louis Garippo, who'd become well-known presiding over the John Wayne Gacy trial, and asked for help getting the latent prints from Cohen's homicide run through the system. Garippo, impressed by what he remembers as Newsome's "sincerity," decided to help, but he didn't realize what that would entail. "The state put up a lot of resistance," he recalls. "They said the case was over. They were concerned about setting the precedent for everybody to come running in and open cases."
So Garippo took the matter to court, where the state argued vehemently against testing the prints. "When a case is closed it's closed, innocent or guilty," says Newsome. "You don't embarrass or impugn the system. The state's attorney's office and the Chicago Police Department are one. They have a symbiotic relationship. I didn't understand then. The picture's clear to me now."
Finally in 1991 a judge ordered the Police Department to run the prints through AFIS. Officer Theatrice Patterson, who'd originally compared the prints with Newsome's, conducted the test, but didn't come up with a hit. Garippo then got a court order to run the prints through the state police's system, which had in its database the prints of everyone who'd been arrested in Illinois. But again there was no hit.
No one can say why AFIS failed to find a match. As it turned out, at least 8 of the 16 prints from the groceries belonged to Dennis Emerson, whose prints should have been in both the city and state databases. "The system is not absolute," says Patterson. "There's a possibility a print can be in that system we'd never find." The odds of getting a hit also decrease if the fingerprint examiner's tracing of the latent print is sloppy, or if the examiner scans it into the system on too much of an angle, or if the matching file fingerprint is smudged. According to Lieutenant Burzinski, the chance of getting a hit when a latent print's match is in the database is about 70 percent.
The failure to find a match left Newsome with only one option--filing a postconviction petition. The appellate process limits a defendant to arguing only what's reflected in the transcript of the trial, whereas a postconviction petition allows a defendant to argue that his or her constitutional rights were violated regarding matters, such as a biased jury, that wouldn't necessarily be reflected in the transcript.
In 1993 a judge appointed Richard Kling, a practicing attorney and professor at Chicago-Kent College of Law, to represent Newsome. According to Kling, Newsome's chances of being released based on the postconviction petition were pretty slim, because judges perfunctorily dismiss 99 percent of them as frivolous. "Generally there are only a couple issues that you're limited to on postconviction," says Kling. "They all have to be constitutional, and by and large they come down to ineffectiveness-of-counsel arguments. And for ineffectiveness of counsel you practically have to call the attorney nuts. The problem for James was that there was a pretty good argument that his constitutional rights really were not violated."
Kling entered the picture at a time when Newsome had just about had it with attorneys. His most recent attorney, William Swano, had been indicted in connection with operations Greylord and Gambat. He pled guilty to racketeering and testified in federal court that he paid more than $16,000 to a judge to fix three murder cases. He also implicated himself in fixing other serious felony cases. In 1994 the Tribune referred to Swano as one of the "most corrupt attorneys in Cook County history."
Newsome's case documents were scattered among the attorneys who'd represented him over the years, and the FBI had confiscated Swano's files, so Kling had to reconstruct the case before he could figure out how to proceed. Newsome had a letter from a public defender notifying him that he'd been granted a hearing in which he could bring witnesses to court and have his petition heard. He was transferred to Cook County Jail to await his court date, and Kling--working with some of his students, called Klingons by his colleagues--attacked the case on two fronts: by looking at different ways to argue that Newsome's constitutional rights had been violated and by trying to get the prints run through the FBI's AFIS.
Newsome had already pretty much mapped out what he wanted done, so Kling and his students plugged away, trying to support Newsome's claims that his trial attorney had been inept and that his rights had been violated. Newsome drew their attention to two discoveries he'd made while sifting through FOIA documents that he thought proved the state had withheld evidence that might have cleared him. He told Kling about a man who'd languished in a nearby hospital shortly after Cohen's homicide with a fresh gunshot wound he claimed was self-inflicted. Police had taken a Polaroid shot of him and apparently considered him a suspect, filing a report on him under the same case number as the reports on Cohen's homicide (though there was no evidence that Cohen had shot his assailant). The police dropped the investigation and never brought it to Wise's attention. Kling's students took an affidavit from Wise, who said that had he known about another suspect he would have cross-examined the police officers about whether they'd adequately investigated him for Cohen's murder by comparing his fingerprints to the ones found on the groceries in Cohen's store and by showing the witnesses his photo. And if Wise could have shown that a second suspect had been weeded out prematurely, the jurors might have had reasonable doubt.
Newsome had also discovered a November 1, 1979, entry in the Felony Review logbook that reads "no statements" near his name. The logbook was used by state's attorneys to record meetings with defendants. The entry might have been helpful to Newsome's defense, since a police officer had testified at the trial that Newsome had told him he'd left his apartment at 1 PM, about a half hour before the murder. That testimony contradicted the testimonies of Newsome's girlfriend and her sisters, who claimed to have been with Newsome from around noon to three--which perhaps left jurors with the impression that they'd been lying for him and that he'd been without an alibi during the time of the murder. Wise might have used the entry to show that Newsome had made no statements, perhaps raising questions about whether the police officer was telling the truth. Wise said in his affidavit that had the logbook entry been available to him he might have altered his trial strategy, allowing Newsome to testify in his own defense or in rebuttal to the police officer's testimony.
Newsome was an extremely demanding client. His mistrust of attorneys was understandable, and he wasn't shy about expressing his frustration with Kling and his team of students, who he thought paid more attention to their high-publicity defendant, Helmut Hofer, the German man accused of murdering North Shore socialite Suzanne Olds.
Kling says that toward the end of two years he came close to dropping the case. "James drove us crazy. It got to the point where I said, 'This is nuts. Let's move to withdraw. There's nothing we can do to please him.' He called us 47 times a day. He got into screaming battles with some of the students who went down there. One came back crying one time, and it finally got to the point where I said, 'We're going to withdraw.'"
Kling says he didn't feel compelled to forge ahead for the sake of justice. He didn't know for certain that Newsome was innocent. "Every inmate says they're not guilty, says they're innocent. Probably for my own internal defense mechanisms, so I don't end up in a psychiatric facility, I sort of convinced myself this is just one more 'I didn't do it.' He's articulate, he's more learned, he's spent more time in the law library--but I don't know whether he's guilty or not. There was still skepticism. His verdict was affirmed, and they had two eyewitnesses."
But a first-year law student, Christine Scott, urged Kling to stick it out. She'd spent two semesters working on his case--more than any other student--and had invested too much energy in the case to give up. She'd also had more contact with Newsome than Kling and had even researched case law with Newsome at the jail library.
She felt committed to the case even after Newsome accused her of being a neophyte and asked that she step down--a request he quickly withdrew--and even after he lashed out at her a few times for getting off the phone to go to class. "And usually we had already been talking for an hour," Scott recalls. "Later on--I'm not sure whether it was because of James or not--Cook County Jail started limiting all the calls to 15 minutes. I think James was just sick of it. He'd been through so many attorneys who let him down in one way or another."
Scott worked on a petition to get the latent prints released from evidence so they could be run through the FBI's AFIS. "Everyone thought that the person who'd done this crime had experience doing it before or was the type of person who would do it again sooner or later," she says. "We were hoping that he'd been caught and his prints were on file somewhere." She also interviewed Officer Theatrice Patterson, who on several occasions had examined the latent prints from Cohen's homicide. She wrote an affidavit based on their conversation, hoping to use it as part of the postconviction petition to show that Patterson's testimony was crucial to a good defense. But Patterson told Scott he needed permission from the state's attorney's office before he'd sign it, so Scott appealed to the state's attorney's office herself. "My job was essentially to nag," she says. "I just really bothered them a great deal. It took about four months of just calling, just leaving messages. Sooner or later, as I kept hitting my head against a secretary's wall, I got a little more harsh tongued, and they started talking to me."
As it turned out, her efforts were beside the point. The case soon blew wide open for a reason that had nothing to do with the help of the state's attorney's office or the progress of the postconviction petition. In November 1994 Scott was under pressure to finish up her work on the petition, which was scheduled to be presented in court in December. One day toward the end of November Patterson ran the prints through the Police Department's AFIS and discovered that eight of them matched those of Dennis Emerson. (Patterson's superiors at the Police Department won't let him talk publicly about his involvement in Newsome's case, so it's not clear why he ran the prints.) Patterson called Kling, and Kling asked Scott to come to his office. "We were both stunned," she recalls. "But then we started jumping up and down going crazy."
Just then Newsome called for an update on the petition. Kling let Scott do the honors. "Are you sitting down?" she asked. Newsome was silent for a moment after she told him the news, trying to discern whether he'd heard her correctly and whether he was actually awake. "I literally had had so many dreams of that moment that I thought I might be dreaming," he recalls. Uncharacteristically, he said good-bye first. He wanted to tell his family he was coming home.
"The longer Richard and I danced around the office," says Scott, "the more we had to share the excitement with him." A half hour later Kling and Scott were running down a hall in Cook County Jail with outstretched arms that eventually found their way around Newsome, who was being led out of his cell for their visit.
"We would have lost the hearing--there's no doubt in my mind," says Kling. "Obviously if we had known the outcome of AFIS we would have pushed a lot harder a lot quicker. But we were trying everything, and it was just another avenue."
A few days after Patterson matched the latent prints to Emerson's, Kling, Scott, and Newsome were in court before Judge Thomas Fitzgerald with what Kling describes as a "holy shit we have an innocent man there's got to be some recourse for him but we don't know what it is" motion. "As crazy as it sounds," he says, "a judge can't just say, 'This guy's innocent. I'm going to let him go.' There has to be something in the law to hang the hat on other than innocence."
Discovery of new evidence didn't apply to Newsome's case, since by law the evidence has to be discovered within two years of the date of the final conviction. With the help of the judge, Kling came up with a "constructive fraud" motion, which gives a defendant more than two years to present new evidence if it can be shown that fraudulent action on the part of the state prevented it from being discovered. The state, the reasoning went, by not getting the AFIS tests run, deprived Newsome's jury of evidence that would have made a substantial difference. Everyone agreed the fraud wasn't intentional because Chicago didn't yet have AFIS, but it was the best they could come up with at the time.
On December 6, 1994--15 years, two months, and four days after Newsome was taken into custody--Judge Fitzgerald released him to the confines of his mother's home and placed him on electronic monitoring while prosecutors decided whether they'd retry him.
That Emerson's fingerprints were on the exact items witnesses say the perpetrator touched means only that Emerson touched them at some point, because fingerprints can remain on items indefinitely. But since Emerson pretty much fit the description of the perpetrator (around the time of the murder he was in his late 20s, around 165 pounds, and five feet ten inches tall), had been arrested carrying a .38 revolver, had murdered before, and had been on parole at the time of the homicide, his fingerprints were enough to persuade everyone involved in Newsome's case that Emerson was the killer--including State's Attorney Jack O'Malley and the chief of the felony trial division, Scott Nelson, who later wrote a letter to Governor Edgar that said, "Recent identification of the fingerprints left at the scene by the actual killer establishes that James Newsome is not the killer." On January 4, 1995--two days after Newsome's 40th birthday--prosecutors conceded his innocence and announced that they wouldn't put him through another trial. Newsome's first act of freedom was to walk around the block where he'd grown up. Trees that had been seedlings when he'd gone to prison now towered overhead.
Just after Newsome's release Scott Nelson of the state's attorney's office glibly said to the news cameras, "Guilty people will walk free in large numbers long before an innocent man will ever go to jail," a comment that seemed intended to gloss over what Newsome had endured. Nelson didn't acknowledge that Newsome had been forced to spend 15 years away from his family or that he'd been snatched from a world he knew and then transplanted into one he didn't. He went to prison before AIDS had a name, before computers were standard in the workplace, before the cold war ended. During the time he was in prison John Wayne Gacy, who'd been convicted the same year as Newsome, was executed. Had the state gotten its way, Newsome might have been executed too.
That Nelson scurried to divert attention from what had been done to Newsome wasn't unusual. In a 1989 article in Criminal Justice Ethics James McCloskey, who founded a nonprofit organization devoted to fighting wrongful convictions, wrote that "on most occasions when it has been discovered that the wrong person was convicted for another's crime, the local law enforcement community, if it has commented at all, has assured the public that such instances are indeed rare and isolated aberrations." Yet just two months before Newsome's release the Illinois Department of Corrections had released Ronnie Bullock, a man who was cleared of rape by DNA testing after serving 11 and a half years in prison.
Since his release Newsome has come to believe that perhaps the evidence that exonerated him had been discovered and suppressed before he was even tried for Cohen's murder. What he's learned about the people who worked on his case only makes him more inclined to think they conspired against him. In 1989 William O'Connor, the chief prosecutor against him, was found guilty of "official misconduct and unlawful use of weapons" after a 38-year-old woman alleged that he burst into her home to serve a subpoena and pointed a pistol at her and her children in an attempt to coerce her into testifying. O'Connor resigned from his duties as a county prosecutor shortly after charges were filed against him for the incident, and was later suspended from practicing law in the state for neglecting "legal matters" and for "conduct which tends to defeat the administration of justice or brings the courts or legal profession into disrepute." In 1993 Robert Higginson, the assistant state's attorney who approved charges against Newsome, was suspended from practicing law in Indiana for "negligence and misrepresentation."
And Area Two police--who questioned Newsome and conducted the lineup where he was identified--have a history of being brought into court for misconduct. In 1981, a year after Newsome's trial, a jury awarded a black high school student named George Jones $801,000 after finding that detectives from Area Two had falsely arrested, falsely imprisoned, and maliciously pursued charges against him. The jury determined that police had fabricated evidence against him and withheld evidence that might have proved his innocence. The case also revealed that police kept "street files" that weren't included in official records of their investigations and that hadn't been made available to the defense, as required by law. Two of the main police officers who worked on Newsome's case were involved in what the appellate court called a "frightening abuse of power" and a "common venture to railroad" Jones. "It wouldn't surprise me if they had been involved in framing other suspects too," says Flint Taylor of the People's Law Office, who was one of Jones's attorneys. "Area Two has an incredible history of lawlessness and violence in terms of its detectives." In 1990 Taylor also represented Andrew Wilson, who claimed Area Two detectives under the command of Jon Burge had tortured him by electroshock after his arrest in 1982. With the help of an anonymous letter sent from within an Area Two station, Taylor and his partners dug up more than 50 similar allegations from people who were suspected of killing cops over a 20-year period.
Emerson's recollections have only fueled Newsome's feeling that there was a conspiracy, especially since Emerson has nothing to gain by talking about his connection to another murder. He still could be charged for killing Cohen. But while some death-row inmates might be glad to go through another trial because it would postpone their execution, Emerson's execution isn't imminent, and a judge has ordered that his sentence be reconsidered (a decision the state has appealed). He could again receive the death penalty, but he believes he stands a chance of receiving a more lenient punishment, one that perhaps would enable him one day to be free. New murder charges wouldn't help.
Emerson seems aware of his vulnerability. Knowing his telephone conversations might be recorded, he dodges questions about killing Cohen and professes not to know details of the crime. He says his motive for coming forward is simply altruistic. "I'm just helping out," he says. "I may be down here, but I'm still living. And if I can help someone I will."
About a month after the two men first spoke Emerson sent Newsome a copy of the speedy-trial motion he'd filed from prison on January 23, 1981, thinking he was wanted for a second murder. In theory a speedy-trial motion imposes a statute of limitations on a murder case, but nothing in Emerson's motion indicates he filed it in relation to the Cohen murder.
When Newsome read the motion and saw no specific reference to Cohen's murder he was disappointed but still optimistic. The motion doesn't prove someone connected Emerson to the crime at the time, but it does support his claim that he thought he was facing another case. Emerson wasn't well versed in law and procedure, and drafted the motion without the assistance of an attorney. He'd asked his attorney to do it, but says he was told it would be useless since he had no outstanding charges. Sure of what he'd been told by the prosecutor who walked into his jail cell, Emerson found a jailhouse lawyer to provide him with an outline of what the motion should include. His attorney at the time, Ted Gottfried, director of the appellate defender's office in Springfield, confirms that Emerson originally asked him to file the motion. Gottfried says that after hearing on the news last year that Emerson's fingerprints had been found at the Cohen murder scene, "The first thing I thought of was that he had asked me to file that motion. But he never told me what it was for."
By February 1980, when Emerson says someone from the state's attorney's office told him he was wanted for two murders, three people had already picked Newsome out of a lineup. Two said they'd seen him in Cohen's store, and the third claimed he'd seen him on South Loomis just before Cohen was killed. Emerson calls this the "snag" in the case against him. Why would police and prosecutors bother to pursue him if the witnesses had already identified someone else as the perpetrator?
"They told me they'd been looking for me for two murders for three months," he says. "To my way of thinking, they didn't just recently find out who I was." If Emerson remembers correctly and is telling the truth, he'd been connected to two murders in early November 1979, just after Cohen was killed.
"If what Emerson says is true," says attorney Richard Kling, "the state's attorney's office and the Chicago Police Department conspired to frame an innocent man. Either that or it was the world's most incredible dumbitude that prevented them from further investigating Emerson for Cohen's murder."
As early as August of that year--after a tavern owner claimed Emerson and his brother had robbed him and killed a woman--one murder warrant had been issued for Emerson's arrest. A few days after the murder police dropped in on Emerson's mother looking for her sons. Emerson's brother was home, and police took him into custody. Assistant state's attorney Robert Higginson approved charges against him.
Two months later, while Emerson was still at large, Higginson reported to a police station to interview a suspect in another armed robbery and murder that occurred only a few miles from the one attributed to Emerson and his brother. The suspect was Newsome. "Emerson should have popped into his mind immediately," says Newsome. "When you're looking for a person who committed murder you look for similarities to other murders in close proximity."
If Higginson had considered Emerson a suspect in the Cohen murder, he probably would have ordered Emerson's prints--on file from previous arrests--compared to those on the items at Mickey's. A link between Emerson and the Cohen murder could have been discovered right away. But even if Higginson hadn't considered Emerson a suspect, a thorough investigation still might have pointed to him--if police had sent the latent prints from Mickey's to the FBI to be run through the national AFIS.
At the time of Newsome's arrest the FBI had been using AFIS for several years to determine whether suspects had duplicate or multiple criminal histories under aliases. A technician would feed suspects' ten-print arrest cards into the system, which would search its database for a matching card. Undoubtedly this was how police determined Emerson's identity when he gave them an alias after being arrested in 1980. The Chicago Police Department had been transmitting suspects' fingerprint cards to the FBI and receiving their criminal histories by fax since 1977--a process that took all of nine minutes. Since Emerson had done time in federal prison in the mid-70s and had had several previous arrests, he should have been on file in the FBI's AFIS.
New technology that enabled AFIS to compare a single or partial latent print with the cards on file at the FBI was more sophisticated. This new system wasn't expected to be up and running successfully until 1983, but tests had been conducted since May 1979, several months before Newsome's arrest. That year the feds spent an estimated $60 million a year assisting state and local law-enforcement agencies with fingerprint identifications, and FBI spokesperson Angela Bell says jurisdictions nationwide were sending latent prints to the FBI to be test run through AFIS. "We conducted tests based on our files and the individual prints that were routinely submitted," she says, adding that when they got a hit they would notify the local law-enforcement agency. She says the FBI didn't keep records of the tests it ran, so there's no way to check if the Chicago police requested tests on the latent prints from Cohen's homicide or, if they did, whether there was a hit.
Newsome believes police are now creating obstacles to keep him from uncovering the truth, and he's afraid that if documents showing official misconduct exist, they'll be destroyed. They're forbidden to talk publicly about their efforts to solve Cohen's murder, and the department won't release its files on Newsome or Emerson. Newsome's attorney, Locke Bowman, recently made a Freedom of Information Act request to borrow the latent prints from the crime scene so that an independent fingerprint expert could examine them. "We're looking for an explanation for why such a lengthy amount of time expired between the first use of those prints and the eventual hit," he says. "It seems to me that if it was the Oklahoma bomber or O.J. Simpson or somebody that they had a big interest in catching that they could have figured it out." The Police Department denied his request. "I was quite surprised," he says. "I couldn't find a good reason why they'd deny it."
Without police cooperation, there's no way to know how many of the 16 latent prints (at least half were Emerson's) were actually tested in 1991, what condition they were in at the time, whether the police requested help from the FBI in 1979, and if they did, whether they were notified of a hit. Nor is there any way to know if in 1980 someone considered Emerson (or anyone else at large for another armed robbery and murder in the area) a suspect, pulled his prints, and compared them with the latent prints found at Mickey's. A police spokesperson says police are keeping quiet because they expect Newsome will sue, but that only makes Newsome certain they have something to hide.
When Newsome is pressed to speculate about why someone might have maliciously pursued him in 1980, politics, racism, and laziness all come to mind. He points out that it was an election year, and Richard M. Daley was presenting a tough challenge to State's Attorney Bernard Carey. A revelation that the state's attorney's office had pursued and detained the wrong man for the Cohen murder would have been embarrassing. Or maybe, he says, they didn't want to start building a case against Emerson when they already had one against him. Or maybe he as a black man was simply considered disposable.
Perhaps there's no way for Newsome ever to know if someone linked Emerson to Cohen's murder back in 1979 and '80. "I find this all extremely puzzling," says Locke Bowman. "Right now it's about as clear as mud. There has to be more to this than we already know, but one thing I'm sure of is that we're not to the bottom of it."
Art accompanying story in printed newspaper (not available in this archive): photos/Lloyd DeGrane.