Sunday, 21 December 2008
Overturned conviction revives inmate’s claim of innocence, victims’ pain from 23 years ago
By ALEX BRANCH
Michael Roy Toney's last appeal
LIVINGSTON — Since he arrived on Texas’ Death Row in 1999, Michael Roy Toney has proclaimed his innocence to anyone he thought might listen.
His relentless campaign of correspondence has targeted reporters, prosecutors, jurors and relatives of the three people he was convicted of killing in the 1985 Thanksgiving Day bombing of a Lake Worth trailer.
He tried to sell tickets to his execution on eBay, a ploy, he said, to draw attention to his case.
"I’ve been screaming that I’m innocent this entire time," he said Dec. 3 from inside a small, sealed compartment where Death Row inmates meet with visitors.
Nine and a half years later, he has everyone’s attention.
Last week, the Texas Court of Criminal Appeals overturned Toney’s capital murder conviction because Tarrant County prosecutors withheld evidence favorable to his defense. Among the 14 documents were records that cast doubt on the testimony of two key witnesses against him.
The Tarrant County district attorney’s office is weighing whether to retry the 23-year-old case. An official said last week that the office intends to but that it has not made a final decision.
Toney’s defense team alleges that his conviction was the product of the manipulation and intimidation of witnesses during the investigation and prosecutorial misconduct in the courtroom. At the time of Toney’s arrest, they say, the case was the longest-running unsolved bombing investigation in the U.S.
"I think a task force was formed to solve this and was clearly motivated to get someone," said Rebecca Bauer Kahan, one of Toney’s attorneys.
Mike Parrish, the lead prosecutor in the first trial, left the district attorney’s office this year. He recently declined a request for an interview, saying he could not comment on a pending case.
Officials with the district attorney’s office have denied that they knowingly sponsored false or misleading testimony and say their opinion on Toney’s guilt has not changed.
"We still think he is the man that committed the offense," said Chuck Mallin, chief of the appellate division.
Relatives of the victims are equally unswayed by the new evidence.
"I know that Michael Toney is as guilty as he can be," said Susan Blount, whose husband and 15-year-old daughter died. "He is squirming and trying to get out of it because he never wants to admit it. He never will."
Blount’s sister, Lynne Wright, whose son died, said: "He is guilty 100 percent. He did it no matter what is coming out or what his attorneys say was lacking in evidence or wasn’t turned over."
No physical evidence connects Toney to the bombing. Toney, who was 19 when it occurred, was convicted on the testimony of his ex-wife and a former best friend. His lawyers say one need only look at the recent string of exonerations in Dallas County for proof that eyewitness testimony can lead to false convictions.
"Most people think if you’re convicted, you must have done it," said Toney, now 42. "But the system relies on people. People are fallible. People have a tendency not to tell the truth."
'An angry, violent bomb’
Nov. 28, 1985, was Thanksgiving Day — the last day Blount’s family was whole.
"Every year, you kind of go through it again in your mind," she said. "You miss the people who are missing from your family every time you sit down to dinner or play a game."
It was a cold day; the temperature topped out at 42. The Dallas Cowboys, behind Danny White’s four touchdown passes, beat the St. Louis Cardinals 35-17.
In their rented trailer in the Hilltop Mobile Home Park, Susan Blount shared an afternoon holiday feast with her husband, Joe Blount, 44; daughter, Angela, 15; son, Robert, 14; and her nephew Michael Columbus, 18, who was visiting from Oklahoma.
That evening, Susan took a nap. Around 9 p.m., Joe and the kids went to a nearby convenience store for snacks. While they were gone, Susan heard a knock at the front door. She did not get up to answer it.
When Joe, a mechanic, and the children returned about 20 minutes later, they saw a briefcase on the front porch. Angela, imagining it full of treasures, brought it inside and opened it, her brother later testified.
Robert heard a click — the sound of a Victor mousetrap triggering a bomb consisting of two galvanized metal pipes filled with smokeless gunpowder, gasoline in a glass container, a model-rocket motor and a 9-volt battery. The FBI later characterized it as an "angry, violent bomb" intended to kill whoever opened the briefcase.
Angela, Joe and Michael died almost instantly. Robert was blown through a doorway.
"The heat melted his shoes into his feet," Susan said.
Robert survived, but with scars on his face, back, stomach and legs. Susan escaped unharmed.
Later, after Toney was convicted, Susan and Robert moved to the West Coast.
"If someone from church left something on our doorstep for us, I would be terrified," she said. "If a car was behind us, we would turn down a different street to get home.
"We didn’t know why somebody did that to us."
A cold case for 12 years
Authorities didn’t know why either. There seemed to be no sensible reason why the Blount family would be targeted. A man who lived in a trailer across from the Blounts was involved in drugs and weapons sales. He later told investigators that he believed that the bomb was meant to be left outside his home.
Authorities investigated an Azle businessman who had been arrested for selling a briefcase bomb to undercover agents with the Bureau of Alcohol, Tobacco and Firearms. They investigated a 15-year-old named Michael Huff, who some people said had bragged about the bombing.
Both suspects passed lie-detector tests.
In 1996, what became known as the Blount Task Force, a multijurisdictional team of investigators led by the ATF, was formed.
But the case remained cold — until summer 1997, when a prisoner in the Parker County Jail brought Michael Toney to the task force’s attention. It was the first time anyone working the case had heard his name.
A tip and a retraction
Charles Ferris, now 55, still lives in Parker County. He says he has a clear memory of the day he told authorities that Michael Toney had bombed the Blounts’ trailer.
He also says it was a lie.
In August 1997, Ferris was in the Parker County Jail on charges of driving without a valid license. Locked up with him was Toney, a 31-year-old career criminal with nine felony convictions for crimes that included burglary, assault, injury to a child and drunken driving.
Toney grew up in California. His mother would later say her son was a good child but found trouble in his teens after moving to Texas to live with his father. He dropped out of school in the 10th grade.
Toney often came up with scams to help prisoners gain privileges, Ferris said. He suggested that Ferris, who also had a past theft conviction, tell authorities that he knew who blew up the Blounts’ trailer. It would help Ferris gain early release, Toney told him.
Another inmate later confirmed that he heard Ferris and Toney concoct the plan.
At his trial, Toney would testify that he knew about the bombing only because he had once been locked up with Bennie Joe Toole, a former roommate of Michael Huff, the 15-year-old investigated in the bombing. Toney said Toole told him about the case.
Ferris says Toney gave him permission to name Toney as the bomber.Toney tells it slightly differently.
"I just said, 'I don’t care who you say,’ " Toney said from Death Row. "Ferris knew more about this crime than I did. I didn’t know who was killed, where exactly it happened or when it happened. . . . It was stupid."
But it worked. Ferris soon was released.
Ferris says he recanted shortly afterward and authorities "made my life hell" for it. Neither the prosecution nor the defense called him to testify at Toney’s trial.
"I was pretty much the reason Michael got into all that trouble," Ferris said. "I didn’t figure they could convict him. I look back at everything that has happened with my mouth hanging open."
Ferris’ tip led investigators to the two key witnesses against Toney: his former best friend, Chris Meeks, and his ex-wife, Kimberly Toney.
Michael and Kim Toney married in 1986 and divorced in 1989. She said he abused her. But in 1985, they were dating, and Toney spent most nights at her apartment. His best friend was Meeks, with whom he drank, chased women, and stole heavy equipment and car batteries.
Michael Toney and Meeks ran a construction business together, although they had no office.
When first visited by investigators on Oct. 7, 1997, Kim Toney said she knew nothing about a bombing on Thanksgiving Day 1985. After they left, she went to the library and looked up newspaper articles about the crime."I realized I was at that spot the night the explosion took place," she later testified.
Meeks and Kim Toney told this story at Michael Toney’s May 1999 trial:
In fall 1985, Michael Toney was acquainted with some "Samoans or Hawaiians" who spoke Tongan. They hung out at an old movie theater in Euless. A week before Thanksgiving, Meeks overheard a conversation between Toney and the Samoans — one of whom went by the name Larry — in which the words contract and bombing were mentioned.
A few days later, Toney showed Meeks a bomb in a briefcase and said he needed to "blow something up."
On Thanksgiving night, Meeks, Toney and Kim left her apartment in Michael Toney’s Chevrolet Silverado. He parked near a propane business that was close to the Blounts’ trailer. Toney removed a briefcase from the back of the pickup and disappeared in the direction of the Blounts’ trailer.
He returned a few minutes later — empty-handed.
Toney was "kind of giggling" and saying "he had fulfilled the contract," Meeks testified.
Toney testified that he was at home the night of the bombing. He said that Meeks was lying and that Kim Toney was mistaken.
Under cross-examination, he admitted lying many times in his life.
It took only four hours for jurors to convict Toney of capital murder. Five days later, after the punishment phase, they sentenced him to death.
The defense’s perspective
The defense’s theory is that the trip that the three took actually occurred about a month after Thanksgiving and had nothing to do with a bombing.
Mallin, of the district attorney’s office, declined to comment on Toney’s lawyers’ specific arguments. Kim Toney testified that after Toney delivered the briefcase, they drove to the nearby Fort Worth Nature Center, where Toney shot a beaver with a .22-caliber rifle. But records show that the rifle wasn’t purchased until December.
And Toney, his lawyers say, did not buy the pickup until December. In November, he drove a blue Monza, a former girlfriend recently said.
In 2006, Toney’s lawyers used an open-records request to obtain the evidence withheld from the defense during the trial. They say it shows that investigators "shaped" and "cajoled" Meeks’ and Kim Toney’s memories.
Among the withheld documents was a report detailing the first statement that Kim Toney gave to investigators. In it, she did not mention seeing Toney with a briefcase the night of the bombing. Only after investigators brought in a "cognitive interview specialist" three days later did she recall it.
Also, in a published report after the trial, Kim Toney acknowledged that her memory was affected in the early 1990s by exposure to toxic chemicals while she served in the Persian Gulf War. The reports raise doubts about her account, Michael Toney’s lawyers say.
Kim Toney, now living in Wisconsin, said she stands by her memory of the briefcase.
"That idea wasn’t planted," she said. "It goes through my head every night. It is what happened.
"I don’t want to say anything that will jeopardize the case. My story is the same. It is not going to be recanted."
Another withheld document recounts investigators’ first interview with Meeks, who was then living in New Mexico and on probation for his fourth DWI. Meeks first responded, "I don’t even know what you’re talking about. Honest to God, sir, I do not remember anything about any bombing."
Toney’s lawyers contend that once Meeks realized investigators would not accept his honest answers — and, worse, believed he was with Toney when the bombing was committed — he allowed them to craft his story to fit their theory. When his answers deviated, they say, investigators pressed him until he changed them.
"Not only does the DPS report show that Meeks’ initial account to the Blount Task Force was drastically different than what his story would become . . . the records also show how Meeks’ first account was manipulated and transformed into his final, incriminating account," defense lawyers stated in court filings.
Later, after the trial, Meeks signed an affidavit for an investigator for the defense acknowledging that the events might not have happened the way he testified. Reached by phone recently at his home in New Mexico, Meeks drew a long sigh upon learning the caller was a reporter.
"Man," he said, "I don’t have anything to say."
Also unearthed by the defense was a record of a task-force interview with a Tongan named Tisileli Lupeheke, who lived in North Texas in 1985. He told investigators that he hung out at the movie theater in Euless and was the only Tongan there who went by Larry — the same name as the "Samoan or Hawaiian" whom Meeks testified he had heard discuss a contract and a bomb with Toney.
Jurors never learned that "Larry" passed a polygraph and was cleared of involvement in the bombing. Or that he was a 17-year-old student at Trinity High School when it occurred and thus, Toney’s lawyers reason, an unlikely candidate to be ordering bombings.
Prosecutors argued later in court papers that the interview was irrelevant because there was no proof that Lupeheke was the same "Larry" Meeks referred to.
Finally, there is Finis Blankenship.
While Toney was awaiting trial, Blankenship was in jail with him. Blankenship testified during the punishment phase of the trial that Toney had told him that he was offered $5,000 to make and plant the bomb but that he left it at the wrong trailer.
Today, like Ferris, Blankenship has recanted. He said he told the story because he needed medical care and he believed testifying would help him get out of jail.
"I had just had a stroke and heart attack, and I was scared I was going to die," said Blankenship, now 76. "So that is the whole reason that happened."
At the Polunsky Unit outside Livingston on Dec. 3, tattoos on both biceps peeked out from under the sleeves of Toney’s white prison shirt. His hair was short and combed.
Toney said he was initially hesitant about granting an interview because, at the time, he was still awaiting a ruling from the appeals court.
He said he is scared of "the system." "It’s not about truth or justice," he said. "It’s about closing the books on a crime they obviously hadn’t been able to solve. They had blinders on. Once they thought they could convict someone, innocence didn’t matter."
In court papers filed last year, Tarrant County prosecutors scoffed at Toney’s innocence claims.
"Mr. Toney was asking [the court] to believe that he randomly and jokingly implicated himself in a bombing and that, when questioned, two people who had not seen or talked to each other in 12 years told stories that matched in amazing details," they wrote.
"It would take a complete suspension of disbelief to think they would both mistakenly place Toney at a scene where they had no reason to be on the very night of the bombing."
The thought of a new trial sends shivers through relatives of the victims. Susan Blount said she wants Toney to be convicted again, but sitting through another trial is "just beyond my imagination." However, she said she and Robert would return to Texas for it.
If prosecutors do not retry Toney, he could walk free.
"I was scared to death when I heard that there was a possibility that he would walk the streets again," she said. "He could just walk to the front door."
But, she said, she decided not to allow herself to live that way.
"I am not going to be afraid of this man," she said.
Told this, Toney said the Blount family has nothing to fear from him.
"I don’t know the Blount family," he said. "I have no hard feelings toward the Blount family; as a matter of fact, I am very sympathetic to their situation. Their family members were killed in this crime; they need closure."
He shook his head. After 23 years, he said, he doesn’t think closure exists for anyone.
"I don’t see how the truth could ever enter the picture now," he said.
"It’s too distorted."
What happens next?
The Tarrant County district attorney’s office must decide whether to retry the 23-year-old case. Right now, officials intend to retry Michael Toney, although the case will be reviewed before a final decision is made, said Chuck Mallin, chief of the appellate division.
What happens to Toney while they decide?
Toney remains on Death Row in Livingston in East Texas. Jason Clark, a spokesman for the Texas Department of Criminal Justice, said his understanding is that a bench warrant will eventually be issued to transfer Toney to Tarrant County, where he will await trial. Toney’s defense team has not decided whether he will seek release on bail, said Rebecca Bauer Kahan, one of his attorneys.
What happens if prosecutors decide not to try the case?
Toney’s lawyers believe that he has served enough prison time to satisfy his past convictions. So, they say, he would most likely walk free.
Timeline Nov. 28, 1985: Angela Blount, 15; her father, Joe Blount, 44; and her cousin Michael Columbus, 18, are killed when a briefcase with a bomb in it blows up on the porch of their home at the Hilltop Mobile Home Park in Lake Worth.
December 1997: Michael Roy Toney, 31, is indicted on capital murder charges while he is in the Wise County Jail serving time for burglary. Toney has a long arrest record in several Tarrant County cities, is a repeated parole violator and has been in prison at least four times since 1989.
March 31, 1999: Jury selection begins in state district court with Judge Everett Young presiding. Toney’s defense attorneys are Jim Shaw and Bruce Ashworth. Prosecutors are Mike Parrish, Sheila Wynn and Mick Meyer.
May 10, 1999: Trial begins.
May 20, 1999: Jurors find Toney guilty.
May 25, 1999: Toney is sentenced to death.
May 2000: Toney tries to sell five seats to his execution on eBay. The auction listing is removed four hours later, with no bids.
2006: Attorneys for the Innocence Network at the University of Houston Law Center accuse Tarrant County prosecutors of withholding reports that attack the credibility of the state’s key witnesses.
2006: The Texas Court of Criminal Appeals rules that the newly discovered evidence is sufficient to warrant further review, which begins proceedings that can lead to a new trial.
April 2007: Young orders further review of the case. The defense and the prosecution are to interview individuals involved and submit their depositions.
October 2008: Prosecutors and defense attorneys agree in court papers that Toney is entitled to a new trial because the prosecution improperly withheld evidence. Young signs an order recommending that Toney be granted a new trial.
December 2008: The Texas Court of Criminal Appeals overturns Toney’s capital murder conviction.
Source: S-T archives
I was pretty much the reason Michael got into all that trouble. I didn’t figure they could convict him. I look back at everything that has happened with my mouth hanging open."
who recanted after telling authorities that Toney bombed the trailer
ALEX BRANCH, 817-390-7689
Tuesday, 16 December 2008
So far this year, 13 people around the United States have been exonerated by DNA testing after serving more than 200 combined years in prison for crimes they didn’t commit. At least 10 more people have been cleared by DNA but are waiting for their exonerations to become official.
Here are the stories of those exonerated so far in 2008:
Michael Blair was convicted and sentenced to death in Texas based on improper forensic testimony and several eyewitness misidentifications. He served nearly 14 years on Texas death row for a murder he didn’t commit.
Kennedy Brewer was sentenced to death in 1995 for a child murder he didn’t commit. He was freed when DNA testing secured by the Innocence Project led to the identity of the real perpetrator. His exoneration also led to critical reforms on handling evidence and state oversight for autopsies.
Dean Cage was exonerated by DNA testing in Chicago after spending 12 years in prison for a rape he didn’t commit.
Charles Chatman served 27 years in Texas prison for a rape he didn’t commit before DNA testing secured by the Innocence Project of Texas set him free.
Nathaniel Hatchett was 17 years old when he was arrested for a carjacking and rape he didn’t commit. He served 10 years in Michigan before he was cleared.
Arthur Johnson spent 16 years in Mississippi prison for a rape he didn’t commit before DNA testing won by the Innocence Project New Orleans led to his release.
Rickey Johnson served 25 years in Louisiana prison for a rape he didn’t commit before the Innocence Project secured DNA testing that proved his innocence. The test results pointed to the identity of a Louisiana inmate who was convicted of committing another rape in the same neighborhood after Johnson was convicted.
Robert McClendon was exonerated by DNA in August in a joint project between the Ohio Innocence Project and the Columbus Dispatch. He spent 17 years in Ohio prison for a crime he didn’t commit before he was cleared.
Thomas McGowan served 23 years in Texas prison for a rape he didn’t commit before DNA testing obtained by the Innocence Project proved his innocence. He was convicted based on a faulty identification procedure.
Steven Phillips was exonerated in October after serving more than two decades in Texas prison for a series of rapes he didn’t commit. DNA testing obtained on Phillips’ behalf by the Innocence Project pointed to the identity of the real perpetrator of the crime.
Ronnie Taylor was convicted in 1993 of a rape he didn’t commit based on faulty forensic tests at the troubled Houston crime lab. His exoneration became official in January, just days after he married his longtime fiancee Jeanette Brown. The couple now lives in Atlanta.
Patrick Waller served more than 15 years in Texas prison for a rape he didn’t commit. He is the 21st person cleared by DNA testing in Dallas County.
Joseph White, exonerated in November, was the first person cleared by DNA testing in Nebraska history. His five co-defendants are awaiting pardons from the governor in order to be fully exonerated.