Wrongful: A Story of Injustice Overturned

Wrongful: A Story of Injustice Overturned December 20, 2013



My interview with Ndume Olatushani shook my faith in our justice system. But I found that my own attitude represented a larger problem. 

I met Ndume Olatushani on an uncharacteristically warm day in February. He drove up in a gold sedan, rolled down the window, and invited me to get in. He needed to drive a few miles up the road and pick up some of his art that had been on display at a gallery. I could go with him. Before getting in his car, I hesitated.

The man in the driver’s seat was a convicted murderer. He’d spent 27 years on death row. Sure, he’d been wrongly convicted. That was the whole reason for the interview—to learn more about his case and the long journey that led him from death row to new life. But even though I knew Ndume was innocent, I felt a rush of suspicion based on decades-old stereotypes. Then, I got in the car.

Over the next few hours, I realized my hesitation was a big problem for our justice system. Our engrained prejudices toward those who find themselves on the wrong side of the law leave us blind to the injustices our fallible system inevitably inflicts.

Ndume had been released from Shelby County Jail on June 1, 2012, nearly three decades after he was convicted and sentenced to death for a murder he didn’t commit. His story is a confluence of worst-case scenarios and a case study in justice-system failures.

Ndume was a happy, smart kid. The seventh of eleven children, he liked softball and begged his mother to get on the school bus years before he was old enough.

During his formative years, Ndume’s family lived in the Pruitt-Igoe Housing Project in St. Louis, a development synonymous with crime and segregation. (“It was demolished in the ‘70s,” he says, “because it had become so lawless.”) At age five, Ndume remembers watching his neighbors stand by, indifferent, as a man was shot in broad daylight.

“I didn’t understand it at the time, but it made an impact on me,” he says. “It was summertime, and people were all outside, and I heard the shots, and I remember now when I look back, people had become so desensitized to violence. I remember hearing people laughing and saying that he got what he deserved.” Nearly 20 years later, an all-white jury in Memphis, Tennessee would say the same about Ndume Olatushani.

On October 2, 1983, a grocery store owner in Memphis was shot and killed during an attempted robbery. The getaway car had been stolen from a Hertz rental service at the St. Louis airport. The Memphis police and district attorney looked to St. Louis for leads. Somehow, the trail led to Ndume, a high school dropout with two prior convictions for petty theft.

“One of the things that was never really explained in my case was how I was developed as a suspect in this particular crime,” Ndume says, pointing out that the only connection he can identify is that he and the getaway car were both from St. Louis. Plus, he says, he had an alibi: He was celebrating his mother’s birthday with family and friends in St. Louis the night the crime took place.

“I knew I hadn’t committed a crime,” says Ndume. “I’d never even been in the state of Tennessee, so I’m thinking shortly thereafter, they’d figure out that I’m not the person that they’re interested in. I thought it would just resolve itself. Unbeknownst to me, they were already serious about it at that point.”

Ndume was arrested in 1984. He was 24 years old. What followed was a chain of assumptions, errors, and omissions that fits a common pattern in wrongful conviction cases. After his first retained attorney abandoned the case at the last minute, Ndume hired a St. Louis attorney with little experience and less time to prepare. And despite the fact that in 1985, the population in Memphis was over 50 percent black, he faced an all-white jury.

The prosecution’s case hinged on evidence that appeal lawyers later claimed was tainted, fabricated, and indicative of possible misconduct. Though there were a number of eyewitnesses to the crime, none could make a positive identification of Ndume, and only one took the stand. As it turns out, prosecutors had repeatedly shown the witness photos of Ndume, telling the witness that the perpetrator had been caught and that the prosecution “needed his help.” Even under that kind of duress, the eyewitness testified that he wasn’t 100 percent certain that it was Ndume he’d seen.

Prosecutors also called two witnesses who testified that Ndume stayed at their home in Memphis the weekend of the crime. One later recanted, and the other was found to have a close relationship with a gang who had a history of stealing Hertz rental cars. Perhaps most disturbing, however, was the fact that the police failed to turn over evidence to the defense—evidence that pointed to a different set of perpetrators altogether.

The original trial took only seven days. On December 7, 1985, Ndume was found guilty. He was sentenced to death and led away to a concrete tomb. “I was so angry sitting there, being a part of this whole sham process,” Ndume says. “You know, the lawyer is telling me not to react to what is being said, even though people are sitting up there lying, and you know they’re lying. I had to maintain this presence in front of the jury. But I think they wanted to convict me.

“I was this young black man sitting on trial before an all-white jury being accused of killing a white man in the South. It wasn’t a real stretch for them to do what they ended up doing.”

Ndume spent his days on death row isolated in a tiny cell. Meals appeared through a slit in the door. Occasionally, guards led him, shackled, to a small outdoor cage with no grass. After two years in these conditions, Ndume learned that his mother had died in a car accident.

“I hit rock bottom,” he says, his voice clouded with emotion. “The last time I saw my mother, I told her that I didn’t know what I’d do if I lost her. I remember the last thing she said to me. She looked at me and said, ‘You’re going to know exactly what to do when the time comes.’”

Over the next few years, Ndume took up painting, creating hopeful scenes on canvas from behind prison bars. And in 1991, he wrote a letter to Anne-Marie Moyes, a woman who facilitated prison art shows around the country. She was stunned by his work.

Today, one of Ndume’s paintings hangs in Anne-Marie’s dining room: dark-skinned women swathed in luminous reds, blues, and yellows huddle together, gazing toward a misty, shimmering African horizon. There is nothing gray in Ndume’s paintings, which is what struck Anne-Marie when she first saw his work more than twenty years ago.

“A lot of prison art ends up sort of being a representation of what people are experiencing in there,” she says. “His paintings, they just stood out… these colorful, positive images that didn’t carry any of the darkness of the place where they were created.”

Over a period of many months, Ndume and Anne-Marie became pen pals, then friends. But at first, he was afraid to reach out. He didn’t even tell Anne-Marie that he’d been wrongly convicted of the crime for which he was sentenced to death. “I had to figure out the right time and the right people to talk to,” he says. “Because most people have bought into this lie that everybody in prison is guilty, and… saying that they’re innocent.”

Gradually, he began to share with her details of his journey to death row. “There wasn’t this desperate energy to convince me,” Anne-Marie says. “He had this inner peace that this was the truth, and that at some point it was going to come out. It’s hard to explain, but it made me less questioning because he had such a peacefulness about him.”

As their friendship blossomed, she looked up old police reports, read trial transcripts, and marveled at what she learned—that Ndume, it seemed to her, had  been a victim not of mere incompetence, but of institutional corruption and egregious injustice. “In order to advocate for him, I needed to understand his case and the legal issues in it,” she says. “I was immersed in thinking about what had happened to him, and at some point I realized I wanted to go to law school.”

In 2002, Anne-Marie graduated first in her class from Vanderbilt University Law School—nearly ten years after she’d first met Ndume. She took a job with the Metro public defender’s office as a trial lawyer, and on the weekends, she dug into the facts of Ndume’s case, with the help of University of Memphis professor Margaret Vandiver. Together, they retraced the error-ridden investigation that led to Ndume’s conviction. The two-year search sent her back to the streets of Memphis, seeking out the original cast of characters: eyewitnesses to the robbery-murder, those who testified against Ndume, and people who likely were involved in the crime.

Anne-Marie learned to navigate an unfamiliar cultural landscape, where people were hard to find and can be even harder to convince to talk. There were no actual addresses, no easy leads, no DNA evidence to quickly overturn the case. Just lots of legwork tracking down witnesses by word-of-mouth.

Despite the obstacles, Anne-Marie’s investigation brought to light much of what Ndume’s original trial left in the dark. In tandem with Cleary Gottlieb Steen & Hamilton, an international law firm that had taken on Ndume’s case in the 1990s, Anna-Marie uncovered  key evidence that the prosecution had withheld. What they found pointed to an entirely different set of perpetrators, a group of men and women they called the “Brown Gang” that had a history of stealing Hertz rental cars, and a family connection to one of the witnesses who’d wrongly IDed Ndume as the shooter.

“That was really hopeful,” Anne-Marie says. “That immediately was exciting and energized us to keep doing what we were doing. I remember saying to someone, ‘I’m going to get him out. This is going to happen.’”

Even as evidence against Ndume crumbled, the system that so summarily sentenced him to death moved even more slowly to deliver him real justice. In 1999, the Tennessee Court of Criminal Appeals ruled that prosecutors had withheld evidence—in violation of the Brady Rule—and the court overturned his death sentence.

Five years later, in 2004, Ndume was resentenced to life in prison. Seven years after that, Ndume’s case remained locked in a bureaucratic prison, as his legal team filed again and again for a new trial. There were countless petitions and motions, Ndume remembers ruefully. “I had to have a hearing to see if I was going to be allowed to have a hearing,” he says.

In 2011, Ndume’s lawyers argued his case at the Court of Criminal Appeals, but as the defendant, he wasn’t allowed to be present. “For the first time, it felt like the court was holding the state’s feet to the fire,” Anne-Marie recalls. “The whole energy of the argu- ment just felt different, like the tide had shifted.” They waited four months for the decision to arrive. Finally, the court overturned Ndume’s original conviction.

Rather than face another trial, and potentially, more jail time, Ndume accepted an Alford Plea—an unconventional legal maneuver in which a defendant pleads guilty while claiming innocence in exchange for a suspended sentence. Even in offering freedom, the justice system held onto its faulty conviction.

But despite the painful journey—there was a silver lining. All along, Anne-Marie had held onto her belief that she could help set him free. By that point, she wasn’t just certain of Ndume’s innocence—she was sure that she was in love. Three weeks after Ndume was released from prison, he and Anne-Marie were married.

“For me, there’s this whole other story of my personal journey through it,” Anne-Marie says. “There were people I was close to… that felt like I was throwing my life away. It created real tension in relationships. It can be a really isolating thing. People were quick to think I was crazy.”

Crazy. The way I felt for getting in a car with a convicted murderer. People thought she was crazy because they held the same prejudices I had felt mere hours earlier. As we finished up our conversation around Anne-Marie and Ndume’s kitchen table, I realized the reason that Ndume stayed in prison so long wasn’t just because of prosecutors who covered up evidence, or witnesses who lied, or a bureaucracy that prioritized paperwork over a person’s life.

The issue is people like me. People who have very little experience with the justice system and assume that that system is working. When in reality, it’s not.

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