Justice Delayed: 10 Years in Jail, but Still Awaiting Trial

Kharon Davis was 22 when he was charged with capital murder and booked into the county jail. 10 years later, he is still there, awaiting trial.

He has had 2 judges, 4 teams of lawyers and nine trial dates, the 1st of which was in 2008. His case has outlasted a district attorney who served for nearly 3 decades. It defies any common understanding of the right to a speedy trial.

As the case has languished, Mr. Davis, whose only prior offense was driving without a license, has been segregated from the jail's general population for minor transgressions like unauthorized peanut-butter-and-jelly sandwiches, and a couple of more serious ones, like fighting. His mother, Chrycynthia Davis, says she has been allowed to visit him just once in the last 3 years.

Though he has not been found guilty, Mr. Davis has already served half of the minimum sentence for murder.

The case, State of Alabama v. Kharon Torchec Davis, underscores how the country's justice system can founder at many levels, especially for poor defendants. And it exposes the loopholes in the constitutional protections that are supposed to ensure that both the victims and the accused receive timely justice.

In capital murder cases, in which the defendant faces the death penalty, it is not unusual to spend 2 or 3 years behind bars awaiting trial if the defendant is not granted bail or is unable to afford it. But a decade is extreme. Mr. Davis's wait is among the most protracted that The New York Times could find.

Mr. Davis's case has suffered from misplaced evidence, conflicts of interest, and restrictions on his ability to review his own legal documents in jail, according to interviews and a review of his case file. His lawyers and prosecutors share the blame for the delay, as does Mr. Davis himself. At a hearing early last year, for instance, Mr. Davis insisted on replacing his 2nd team of court-appointed lawyers, saying he did not trust them, even though the judge warned that doing so would further delay his trial.

"It is impossible to look at it," said Jonathan Turley, a constitutional law expert at George Washington University, of the case, "and not find it deeply, deeply troubling."

Mr. Davis maintains he is innocent and has declined offers of a plea deal. In February, after the election of a new district attorney who had a conflict of interest, the state attorney general took over the prosecution and dropped pursuit of the death penalty. Jury selection in the trial finally began on Monday.

The basic facts of Pete Dwayne Reaves's death are not in dispute. On a Friday night in June 2007, Mr. Davis and 2 other men drove to his apartment, looking to buy marijuana. The visit quickly went bad: Mr. Reaves was shot twice. He died from the gunshot wounds.

One of Mr. Davis's companions was a childhood friend, Kevin Bernard McCloud, who like Mr. Davis had no prior criminal record. The other was an older man, an acquaintance named Lorenzo Stacey, who had a rap sheet that included burglary and cocaine possession.

All 3 men were charged with capital murder, but their cases had very different outcomes.

Mr. Stacey, who was acquitted in 2009, maintained that he had stayed in the parking lot, and entered the apartment only after hearing the gunshots.

Mr. McCloud's lawyer said that his client heard Mr. Davis yell at him to get down and then felt a pain in the back of his neck. Mr. McCloud had been shot by a bullet that passed through him and struck Mr. Reaves. In 2011, Mr. McCloud took a plea deal, agreeing to testify against Mr. Davis in exchange for being spared the death penalty. He was sentenced to 99 years.

Prosecutors have said that the three friends were wearing masks and intended to rob Mr. Reaves, and argued that Mr. Davis had fired a stolen 9-millimeter handgun. It was Mr. Stacey who told the police where to find the gun, claiming that Mr. Davis had hidden it behind a Dumpster, but no fingerprints were found on it.

In a letter Mr. McCloud sent to Mr. Davis's mother after he accepted the deal, he assured her that he would not do anything to hurt her son.

The prosecutor at the time, Douglas A. Valeska, wanted him to "get on the stand and lie, and I'm not going to do that," Mr. McCloud wrote. The judge has ordered that Mr. McCloud be transported to court for the trial. Mr. Valeska did not respond to a phone call and email seeking comment.

In the summer of 2015, Mr. Davis's lawyer, Derek Yarbrough, was looking through an evidence box from Mr. Stacey's trial when he found something that could shape the outcome for his client: a forensic kit with the results of a gunshot residue test.

The kit indicated that Mr. Davis had tested positive for residue. But it did not include further analysis needed to determine whether it came directly from a gunshot, or from an indirect source like a car seat. Mr. Davis's current lawyers would not say whether that analysis has since been done.

From the beginning, there was something peculiar about the way the Davis case ground through the legal system. His first lawyer, Benjamin Meredith, was the father of one of the investigating officers, Frank Meredith. At a preliminary hearing, the elder Mr. Meredith cross-examined his son.

But it was 4 years before anyone raised a concern about the potential conflict of interest. In 2011, Mr. Valeska, the district attorney, finally brought it up. Judge Kevin Moulton, who had taken over the case in 2010, removed Mr. Meredith, who had initially been hired by Mr. Davis's mother, but became a court-appointed lawyer when she could no longer afford the bill.

Mr. Valeska did not respond to inquiries on why he waited so long.

In all that time representing Mr. Davis, Benjamin Meredith had filed only 2 motions.

More delays followed: Mr. Davis's new lead counsel, Mr. Yarbrough, needed time to finish another murder case. The trial was postponed when the gunshot residue kit was found, and again when Mr. Davis's lawyers said they needed more time. Finally, it was set for April 2016.

Alabama's method of handling indigent defense has long been criticized as deeply flawed, particularly in death penalty cases. It underwent some changes in 2011, but judges still handpick defense lawyers, and they are paid only $70 an hour - less than half the federal pay rate for capital defenders and far too low to attract experienced death penalty lawyers, said Lisa Borden, who oversees pro bono programs at the Baker Donelson law firm in Birmingham. In 2011, former judges on the state's highest courts told the United States Supreme Court that capital defendants in Alabama faced "a lack of qualified counsel at all stages."

Particularly in rural communities like Dothan, the legal community can be small enough to make conflicts hard to avoid. The newly elected district attorney could not prosecute the case because he had previously represented 1 of the 3 men accused in the murder.

By August 2015, Mr. Davis had lost faith in his lawyers, complaining of delays. Both Mr. Davis and the lawyers themselves asked that they be removed from the case.

The judge determined that the lawyers were adequately representing Mr. Davis, and warned that new lawyers could delay the trial by another 2 to 3 years, but Mr. Davis insisted. His next lead counsel lasted 6 months before discovering that he had once represented a relative of the victim.

In late 2015, when Mr. Davis had been in jail for 8 years, his mother tried to help him herself, hiring a legal document preparation service for $100.

The result, a rambling petition to a federal court, went nowhere. But it was the first filing in Mr. Davis's case to invoke his right to a speedy trial.

The right to a speedy trial does not come with a clear definition of speed. Rather, the Supreme Court established in 1972 a 4-part test for whether the right had been violated: the length of the delay, the reasons, the time and manner in which a defendant has asserted the right and the degree to which the defendant's case might be harmed.

Delays can sometimes benefit defendants, who may purposefully try to stall until witnesses die or memories fade. Defendants who cause their own delays may be deemed to have waived their right to a speedy trial.

In Mr. Davis's case, he knowingly delayed his trial by demanding new lawyers, but one of his stated reasons has been their failure to bring the case to trial.

When Mr. Davis's current lawyers, Thomas M. Goggans, Dustin Fowler and Christopher Williams, finally filed their own speedy trial motion, they focused on the 4 years when he was represented by Mr. Meredith, saying that delay was not their client's fault.

But Judge Moulton said Mr. Davis was entirely to blame: "All delays in this case are attributable to the defendant," he wrote.

He also said the claim was too late. "The defendant has waited 10 years to assert his right to a speedy trial in the form of a motion to dismiss, which comes approximately five months prior to the trial date," he said.

A clerk for Judge Moulton said he would not comment further on an active case.

Judges must try to steer clear of situations that may be grounds for appeal, said William Lee Pfeifer Jr., an appellate lawyer in Alabama. "The judge is in a difficult position because he does not want a defendant going to trial with lawyers he doesn't like or trust, or lawyers who have issues like conflicts of interest."

But ultimately judges, not defendants, control the court calendar.

"The court has to gain control of the case and not let it petrify," said Mr. Turley, the constitutional law expert. "This is like a railroad saying, 'This is an awful train wreck.' Well, the train belongs to the railroad."

The delays have been agonizing not only for Mr. Davis, but for the family of Mr. Reaves.

"You can just imagine losing a child or a brother and then something like this happens, for more than 10 years," said 1 of his 4 brothers, Malcolm Reaves. "It's been so long."

Mr. Reaves suggested that the delays might be part of a defense strategy by Mr. Davis. "It's all about buying time," he said.

Mr. Davis, though, insists that he would like nothing more than his day in court. In jail, he has been written up enough times, for offenses that include insulting guards, possessing pornography, and writing in his jail-issued Bible, to be kept in a segregated cell until 2021. "I'm in a position where you have to violate just to stay sane," Mr. Davis wrote in a letter to The New York Times after a request for an interview went unanswered by jail officials.

Ms. Davis contends that her son's treatment has been abusive and that he has not regularly received prescribed medications for depression and anxiety. In 2013, his lawyers filed a motion complaining that the jail was not allowing him to review all his own case files.

"My son has been locked away and kept from me for 10 years like an impounded dog or an unwanted animal," Ms. Davis said.

Houston County Sheriff Donald Valenza, who runs the jail, did not respond to numerous phone calls and emails.

In a letter to his mother in June of last year, Mr. Davis described his treatment as "some type of mockery."

"I feel like a foolish mascot," he wrote, "parading to and from the courthouse."

Source: The New York Times, Serge F. Kovaleski, September 19, 2017

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