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Overcome, Succeed and Prosper [Hardcover]
Lenell Geter
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Book Description
Publication Date: May 25, 2001
Lenell Geter's practical and commonsensical book Overcome, Succeed, and Prosper is a true "profile in courage" and determination in the face of almost insurmountable hardships. In
1982, he had just begun a career as an engineer in Greenville, Texas, when during his short stay he was mistakenly charged, convicted, and sentenced to life imprisonment for a crime
he did not commit. He spent sixteen months in prison before his name was cleared of wrongdoing. CBS's "60 Minutes" did a key segment on his plight in 1984, and in February of 1987,
CBS Television aired "Guilty of Innocence: The Lenell Geter Story," a major motion picture for television. In his beautifully written account, there is an underlying message which inspires,
informs and encourages families and individuals to overcome their obstacles and to make personal changes in their lives by employing his system of Five Attitudes for Success and
Character Benchmark Lessons.
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Editorial Reviews
About the Author
Lenell Geter conducts inspirational presentations for educational organizations, churches and businesses. He resides in South Carolina with his wife and three daughters.
More About the Author
› Visit Amazon's Lenell Geter Page
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Product Details
Hardcover: 238 pages
Publisher: Marzinza Pub Group (May 25, 2001)
Language: English
ISBN-10: 0967878306
ISBN-13: 978-0967878300
Product Dimensions: 9.1 x 6 x 1 inches
Shipping Weight: 1.2 pounds
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Amazon Best Sellers Rank: #3,032,777 in Books (See Top 100 in Books)
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The Way of the Gun
The untold story of why Lenell Geter was freed
By Carlton Stowers Thursday, Nov 15 2001
Comments (0)
In those days before the cancer would spread and claim his life, longtime law enforcement
officer Billy F. Fowler could recount old cases worked with recall that suggested photographic
memory. A member of the Dallas Police Department for two decades, he had been the partner
of J.D. Tippit, off-duty on the day the officer was shot and killed by Lee Harvey Oswald. From
DPD, Fowler had moved to the Dallas County District Attorney's Office, where he spent a couple
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of years as an investigator. He was serving as a lieutenant with the suburban Midlothian Police
Department when he died in March 1992.
Stories | Conversations
It was during Fowler's days in Midlothian that
I was researching the murder of an undercover
officer, spending a great deal of time recording
Fowler's recollections. The subject often veered
to other times, other cases--like the 1984
investigation he'd conducted for the district
attorney's office in the infamous matter of
Lenell Geter, a man falsely accused and
convicted of a robbery and sent to prison for
life. "It's a shame," he confided before his death,
"that Geter was never told what we learned."
His message, though unspoken, was clear:
Some day the story should be written. And, as if
Mark Graham
Lenell Geter leaves a Dallas courtroom in March
1984, the month in which District Attorney Henry
Wade ordered all charges against Geter dropped.
The case had attracted worldwide media attention,
but the results of the reinvestigation of the Balch
Springs Kentucky Fried Chicken robbery had
never been reported.
aware that I would need more than just his
memory, however good, he handed me a bulky
envelope. Like many old-time cops, Fowler had
kept copies of files from some of his most
interesting cases. The Geter story was all there-the paperwork, from handwritten notes, phone
records to typewritten reports--verifying every
detail I'd earlier tape recorded. Later, visiting
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http://www.dallasobserver.com/2001-11-15/news/the-way-of-the-gun/full/[3/24/2013 8:37:20 AM]
with then-Assistant District Attorney Norm
South By So What
Kinne, he acknowledged that the story was as
Fowler had told it. When, recently, I learned
that Geter would be returning to Dallas for a
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few days to promote a book, it seemed time he
should hear it.
"I was a forerunner to racial profiling..."
--Lenell Geter
Mark Graham
Billy Fowler, who died in 1992, was assigned to
investigate the case against Geter for his retrial.
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It was, and remains, one of the dark and
troubling moments in Dallas judicial history,
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spread to a head-shaking nation first by an
investigative team from CBS' 60 Minutes, then
by a made-for-TV movie produced by the same
network. The prestigious National Lawyer
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magazine explored it in critical detail in a story
titled "Lazy Justice." Newspaper editorial
writers throughout the country used it as a
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platform to heartily condemn what they
perceived as Dallas' quick-draw style of criminal
prosecution.
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Even as he was being eulogized recently, his life
and career celebrated by the city's legal
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community, the glowing obituaries of longtime
Dallas County District Attorney Henry Wade
reminded that among his many triumphs was a
dark and lingering mistake. The wrongful
Mark Graham
Former District Attorney Henry Wade did not
initially want to drop the charges against Geter
even after being told by his own investigators that
they'd found the person who had committed the
robbery.
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prosecution of a black man named Lenell Geter
has, for almost two decades, remained an
indelibly tarnished spot on his 36-year career.
And though the 5th U.S. Circuit Court of
Appeals would eventually rule that the Dallas
County District Attorney's Office was shielded
by governmental immunity and could not be
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sued for any violation of civil rights related to
the case, it would haunt the public conscience in
much the same way a nightmarish occurrence in
Dealey Plaza had years earlier.
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Geter, then a soft-spoken 24-year-old engineer
working for E-Systems in nearby Greenville, had
been arrested and convicted of the August 23,
1982, armed robbery of a Balch Springs
Kentucky Fried Chicken restaurant. Despite no
previous criminal record, the South Carolina
Mark Graham
Lenell Geter prays with friends and feeds the
ducks at the park in Greenville, where he first
noticed a policeman copying down the license
plate of his parked car. Geter was later arrested at
his apartment. The park is where Geter often
spent his lunch hour feeding the ducks.
native was sentenced to life in prison.
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For 16 months he remained behind bars while
his lawyers continued to argue his innocence
and a team of investigative reporters at the
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Dallas Times Herald raised provoking questions
about Geter's actual involvement in the crime.
Wade, meanwhile, stood firm in his insistence
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that the right man was in prison.
Only after the airing of the 60 Minutes
investigation and a new trial was ordered did the
legendary prosecutor, counting the remaining
days until his retirement, have the Geter matter
reopened. He assigned first assistant Norm
Kinne--who had not been involved in the
original prosecution of the case--to
reinvestigate.
As soon as it was announced that a new trial
would be granted, Kinne and assistant
prosecutor Jerry Banks began traveling to ESystems' headquarters, interviewing employees
in an attempt to trace Geter's actions on the day
of the robbery. What they learned was
immediately troubling.
"Many of the people we spoke with," Kinne
recalled, "had never been interviewed before.
There were three of Geter's co-workers--people
who had not testified during the first trial or had
even been interviewed by Geter's own lawyers-whose combined testimony would have put
Mark Graham
Norm Kinne, now retired, was assigned to
prosecute Geter in his retrial. Kinne immediately
began having doubts when he started
investigating the case he was assigned to
prosecute, concerns that echoed the media's
contention that Geter was wrongly accused.
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"I soon realized that he had a much stronger
alibi than the first jury had heard. And, I knew
More About
that at some point during the upcoming retrial I
Lenell Geter
Billy Fowler
was going to have to tell the court that I was in
Norm Kinne
Robbery
possession of what I considered strong alibi
Law
evidence that the defense had not uncovered."
Like this Story?
Kinne, a man who had long enjoyed his
reputation as a fiery, aggressive prosecutor, was
beginning to have doubts about the strength of
the case he was scheduled to prosecute that
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coming April.
Meanwhile, Fowler, a longtime Dallas police officer who had begun working as an investigator in
the district attorney's office, made several trips to various units in the Texas prison system to talk
with inmates who had, in the wake of the 60 Minutes report, begun writing to say they had vital
information about the robbery for which Geter was convicted.
What Fowler routinely encountered were inmates eager to use his visit to avoid prison work for
the day. No interview, he recalled, had gone more than 10 minutes before he was convinced there
was nothing that would shed new light on the case.
"One afternoon as Fowler and I sat in my office, reading through the transcripts of the original
trial," Kinne said, "I told him that I'd done absolutely everything I knew to do and wasn't able to
break Geter's story." Though neither mentioned it, both had privately begun to share the belief
that Geter, indeed, might be innocent.
Then, on the afternoon of March 15, 1984, David Kirkland, then a captain with the Lufkin Police
Department, placed a call to Kinne that would turn the investigation into a frenzied search that
would ultimately result in the truth: The man who had robbed the KFC was not Geter but,
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instead, was apparently a former Dallas resident named Curtis Eugene Mason. Captain Kirkland
told Kinne of receiving a call from a former Lufkin city official who insisted to him that the Balch
Springs robbery had been committed by Mason, who was the boyfriend of the ex-official's cousin.
Mason was currently being held in Houston's Harris County jail. The Lufkin officer gave Kinne a
telephone number where the former city official could be reached.
Kinne and Fowler then began a six-day investigation that would help free an innocent man.
On Friday, March 16, 1984, Kinne summoned Fowler into his office to tell him of the previous
day's conversation with the Lufkin police captain. "Give this guy a call," he said. "It may be
nothing, but just in case it is, I want to keep it quiet."
Fowler returned to the office he shared with several other investigators and waited until they had
left for lunch before he placed his call to Lufkin. The ex-official's wife answered, explaining that
her husband was at the dentist's office. While Fowler waited for the return call, he checked to see
if there was any existing record of Dallas crimes committed by Curtis Mason. Indeed, Mason had
been arrested on a drug charge a few weeks before the Balch Springs KFC robbery. The codefendant in the case was a known drug dealer who had provided Fowler information that had
helped him make numerous cases during his days as a narcotics investigator with the Dallas
police. Fowler immediately drove to the home of his old snitch.
The man admitted that he and Mason had been snorting cocaine when the arresting officers had
arrived and that they had blown the residue of the drug off the table and into the carpet before
the police entered the room. "The only evidence seized," Fowler said, "was the razor blade used to
cut the coke." The two men spent a couple of days in jail and were released. Mason had remained
in Dallas for several days after he was set free. As well, Fowler learned that the apartment where
Mason had been living at the time the robbery was committed was located only a few blocks from
the fried chicken restaurant Geter had been accused of robbing.
"This guy told me that he had no proof that Mason had been involved in any robberies," Fowler
recalled, "but he did tell me that he would occasionally 'disappear' for a day or so, then return
with a lot of money in his pocket."
Returning to his office late in the afternoon, Fowler telephoned Wilbert Alexander, one of the
chief assistants in the Harris County District Attorney's Office, and asked to speak to whomever
was assigned to the Mason case. Karen McAshen was the prosecutor in charge, he was told, but
she had left for the day. "I'm not familiar with the details," Alexander volunteered, "but there are
apparently several cases--and all of them have to do with robberies of Kentucky Fried Chicken
restaurants."
Fowler hurried across the hall to tell Norm Kinne what he had learned.
"I think maybe we need to make a trip to Houston on Monday," the prosecutor said.
It was that Friday evening when the ex-official in Lufkin telephoned Fowler at his Midlothian
home and began to elaborate on the story he'd earlier told the local police captain. "My cousin,"
he said, "was living in Dallas with Mason when the robbery took place."
"But what makes you think he committed the particular robbery we're interested in?" Fowler
asked.
"Because he told my cousin he did it," the man said. He explained that she and Mason had moved
to Houston soon thereafter and that he'd been arrested for a series of robberies there. "She called
me the other day after an attorney representing him on the Harris County charges had come to
her house, saying that Mason had indicated she could provide an alibi for him. She's scared to
death. She doesn't want to have to get on the stand and lie for him."
"I'll need to talk with her," Fowler said.
"She says she doesn't want to get involved, but I'll ask her about it and get back to you." The
caller refused to give Fowler his cousin's name or say where she was living. The investigator
waited up until past midnight, hoping for a return call, but the phone never rang.
On Saturday morning, Fowler was mowing his yard when his wife summoned him to the phone.
It was another long-distance call from the Lufkin source.
"He told me that he had spoken with his cousin and that she had said she didn't want to get
involved. I begged and pleaded for him to give me her name and number, but he refused," Fowler
remembered.
The caller did, however, provide the investigator with additional information on Mason. About a
week after the Balch Springs robbery, Mason had stolen his cousin's car and taken it to
Beaumont. While there he had been in an accident. "One night he was crossing the street and a
car hit him, breaking his leg and knocking out several teeth."
Fowler listened with only casual interest; he had no idea how a pedestrian auto accident might
figure into the investigation he was conducting. Then a statement jolted him to attention. "The
blue canvas bag and the pistol you've been looking for," he said, "are in the possession of the
Beaumont Police Department. Mason had it with him when the car hit him. The police took it
when they investigated the accident."
During the first Geter trial, the investigator knew, witnesses to the robbery had testified that the
gunman had been carrying a blue canvas bag with white stripes and a white handle. They had also
described the weapon as being "large and black." Neither the bag nor the gun had ever been
found.
"Did you ever see the gun?" Fowler asked.
"Yes, he showed it to me one time when he was visiting in my home. All I can remember was that
it was black and had a long barrel."
The caller went on to say that after Mason was released from the hospital he had traveled to
Baton Rouge, Louisiana, to stay with a sister. "That's when he contacted my cousin, and she went
over there to be with him. She told me they had stayed with Mason's sister for only a few days
before he cut the cast from his leg and they drove to Houston."
It had been shortly thereafter that Mason was arrested for a series of Kentucky Fried Chicken
robberies.
Aware that he had sparked Fowler's interest, the caller interrupted his narrative. "Before I go any
further," he said, "I want to know how lucrative this is going to be."
Surprised that the man was evidently interested in selling his information, Fowler said he wasn't
sure. "I'll have to talk with my boss about it."
"Is he Geter's lawyer?" the man asked.
"No, sir," Fowler replied, "he's a prosecutor with the Dallas County District Attorney's Office."
For several seconds the caller was silent. "I guess I'm talking to the wrong people. Could you give
me the name of Geter's lawyer?"
Fowler hedged, saying that he understood Geter had several attorneys but that he did not know
their names. He said he could get their names Monday when he returned to the office.
"By then I was convinced that the information he had was certainly worth looking into," Fowler
said, "and I knew Norm [Kinne] wouldn't want the defense attorneys to know about it before we
had a chance to check it out. I begged the guy who had called to not talk with anyone else until
Monday. Though I had absolutely no authority to do so, I told him I'd see what we could do
about paying him for his information."
The informant reluctantly agreed to wait. Fowler immediately phoned Kinne at home to tell him
about the conversation. "We need to go to Houston right away," the assistant district attorney
said.
That afternoon, they flew to Houston and, at the Houston Police Department, read reports of
seven aggravated robberies, all attributed to Curtis Eugene Mason. Attached to the files were
reports of two armed robberies of Beaumont Kentucky Fried Chicken restaurants.
Though Mason had, during the later robberies, been armed with a shotgun instead of a pistol, the
manner in which the November-December crimes were carried out bore a striking resemblance
to that described by witnesses to the previous August's Balch Springs robbery. The only marked
difference was that on each of the Houston reports the robber was described as "having a limp"
and "several front teeth missing."
From the police department, Kinne and Fowler went to the Harris County jail and had Mason
called to one of the interview rooms. The man Kinne interrogated for over an hour looked
nothing like Lenell Geter. He was 5-foot-10 and weighed 150 pounds, while Geter was 6 feet and
180 pounds. Mason wore his hair in an Afro and had a goatee. At the time of his arrest, Geter's
hair was short, and he was clean-shaven.
Despite Kinne's best efforts, Mason refused to admit any involvement in the Balch Springs
robbery. Finally weary of the prisoner's denials, Kinne angrily told him that he and Fowler would
be back on Monday to transport him to Dallas where he would be placed in a lineup to be viewed
by witnesses to the Balch Springs robbery. Mason just shrugged and said he'd be looking forward
to seeing them again.
As Fowler drove the rental car back toward the airport, Kinne told him, "I want you to go on over
to Beaumont and see what you can find out there."
It was 10:30 Saturday night when the investigator arrived at the Beaumont Police Department
and explained to the desk sergeant that he was looking for information on a year-old accident
involving a man now suspected in a robbery investigation.
"Their traffic division was already closed," Fowler recalled, "so they had to call an officer in to
locate the files." On the evening of September 6, 1982, it stated, a man named John Davis had
been driving his 1979 Ford Futura eastbound on College Street. As he entered the intersection,
Curtis Mason had suddenly walked into the path of his car.
There was, however, nothing in the report about the victim carrying any kind of athletic bag or
pistol.
It was near midnight when Fowler, having checked into a Beaumont motel, sat reviewing the
accident report. Reading the telephone number of the driver of the car, he ignored the hour and
phoned John Davis.
Davis remembered the incident well. He described in great detail how Mason had run in front of
him. "Was he carrying anything?" Fowler asked.
"Yes," Davis remembered. "He had this blue and white bag. It flew up and hit my windshield. I
remember thinking that it was going to come through the glass." He went on to tell how the bag
had been lying near the curb when police and the ambulance arrived. "I pointed it out and told
one of the officers that it belonged to the man I'd hit.
"I thought it sort of strange when he [Mason] denied that the bag was his. The police took it,
though."
"Did you ever see what was in the bag?" Fowler asked.
"Yeah, a pistol. One of the officers took it to his patrol car and put it in the trunk. I was standing
right beside him when he unzipped the bag and looked inside. It was a really nice-looking black
pistol."
Fowler thanked Davis and apologized for the late-night call. Frustrated that he would have to
wait until morning to return to the Beaumont Police Department and see if the bag and gun
might still be in the property room, the investigator could not sleep. Soon he was back in his
rental car, driving in the direction of the intersection where the accident had taken place. Upon
his arrival he checked the diagram attached to the report and determined where Mason had run
into the street. He had, the diagram indicated, apparently been coming from the driver's left.
Fowler mentally traced the path the victim had taken before the automobile hit him. Then he
looked to the corner, fewer than 100 feet from where Mason had been hit. Pulling a pencil from
his jacket pocket, he added his own notation to the diagram. On the corner was a Kentucky Fried
Chicken restaurant.
"He was on his way to rob the place," he said aloud.
Early the following morning, a sergeant in charge of the Beaumont Police Department property
room found an invoice indicating that the bag and a Colt .45-caliber revolver had been received
on September 7, 1982. The invoice was signed by the two officers who had investigated the
accident.
The Beaumont police had a policy of issuing usable handguns to its officers once they were
released by the courts. The .45, records showed, had been issued to a patrol sergeant. The bag
had been one of many small items that the department placed in "grab bag" type boxes that were
sold during periodic public auctions. There was no way to trace who might have purchased it.
The officer, however, dialed the number of the sergeant to whom the gun had been issued, then
handed the phone to Fowler. Soon thereafter, the officer arrived with the handgun and signed it
over to the investigator's custody.
By midafternoon Fowler was back in Dallas, bringing with him serious doubt that Geter had in
any way been involved in the robbery for which he'd already served more than a year of his life.
He phoned Kinne at home and said, "I've got the gun that was used in the Balch Springs
robbery."
On Monday he arrived in the district attorney's office with the pistol in his briefcase and took it
directly to Kinne's office. "Pick someone to go with you," the prosecutor said, "and go back to
Houston and get Mason."
Still adamant about keeping the investigation secret, Kinne instructed Fowler to go to the court
of District Judge Ron Chapman and get a bench warrant to have Mason returned to Dallas
County--not as a suspect but a "witness."
With the warrant in hand, Fowler sought out misdemeanor investigator Bob Whitney and asked if
he would accompany him to Houston to pick up a prisoner. Eager for an opportunity to get out of
the office for the day, Whitney agreed. "What's going on?" he asked.
"I'll tell you when we get on the road," Fowler replied.
It was just after four in the afternoon when they arrived at the Harris County Sheriff's
Department and presented the paperwork authorizing them to take Curtis Mason to Dallas. "I'm
not sure I can release him," the lieutenant in charge said. "He's scheduled to go to trial in two
days. You'll have to get the judge's approval."
At Fowler's urging, the officer phoned the judge assigned to hear Mason's case and was told he
would not approve release of the prisoner. If Dallas wanted Mason, the judge said, it would have
to first get approval from the prosecutor. Thus the next call went to Harris County Assistant
District Attorney Karen McAshen. "Fortunately," Fowler recalled, "she was still in her office. I
explained that I wasn't authorized to give her any details but assured her as best I could that we
needed Mason very badly. I asked her to try and persuade the judge to pass the case to a later
court date.
"She was a little miffed by the fact I wouldn't explain what was going on, but finally agreed to call
the judge." By late in the afternoon the judge had signed off on the release.
When Mason was brought down from his jail cell, Fowler didn't immediately recognize him. He
had shaved off his goatee and no longer wore his hair in an Afro, obviously preparing himself for
the lineup appearance Kinne had warned of just two days earlier.
They drove non-stop to Dallas, arriving shortly past one in the morning. Mason was booked, not
as a suspect in the Balch Springs robbery, but on the warrants for the Houston offenses for which
he'd already been arrested.
While Fowler had been in Houston, Kinne had managed to locate two of the five witnesses who
had identified Geter as the Balch Springs robber and asked that they view a lineup. Helga Boone,
the manager of the restaurant, had pointed to Geter during his trial, insisting that she would
never forget his eyes. Mike Tallant had also identified Geter, insisting that the robber had a
goatee at the time and that Tallant had "looked down" on the gunman. Though Geter's attorney
had pointed out that his client was, in fact, taller than Tallant, the witness had stuck firmly to his
story.
In addition to having each man step forward for viewing, Fowler had each of them speak words
that witnesses had said they heard during the robbery. "They had said the robber said something
like, 'Take your time,' to the person who was opening the safe," he said, "and then, just before
leaving, he'd said, 'Don't follow me outside. I've got a partner out there who will blow your head
off.'" According to the Houston reports, Mason had said much the same thing in each of the
robberies he was charged with committing there.
Boone quickly identified Mason as the man who had robbed her restaurant and later told Kinne
that she could not believe she had made such a mistake when she pointed out Geter. "She said
there was no doubt in her mind that Curtis Mason was the man who pulled the holdup," Kinne
said.
Tallant, meanwhile, positively identified one of the "fillers" in the lineup.
By Tuesday night, Kinne had located the other three witnesses who were living in Arkansas and
was having them flown to Dallas. The following day all three, including Juan Vargas Jr., who had
previously testified that he had had the best opportunity to view the robber at the time of the
crime, quickly picked Mason from the lineup.
Kinne, who had been on hand to view the procedure, looked at Fowler. "It's time to tell the boss
what we've got," he said.
It was late in the morning when the assistant district attorney entered Wade's office and outlined
the new evidence that Fowler had gathered. Scheduled to speak at a service club luncheon, Wade
instructed his assistant to put everything he had in a memorandum and have it on his desk by the
time he returned. For the next hour, Kinne and Fowler worked to outline the case they had built
against Mason and had Wade's secretary type it. Even as she typed, Wade called in to ask if the
report had been completed.
Upon his return, he read the memo and summoned Kinne to his office.
"Norm was up there for 30 minutes or so," Fowler remembered. "I waited in his office and was
surprised when he came back with a really discouraged look on his face. He just shook his head
and said, 'He doesn't buy it.'
"I couldn't believe Wade had doubts. I felt we had proven beyond a shadow of a doubt that Curtis
Mason was the person who had done the robbery. We were sitting there, talking about what to do
next, when Wade walked in, holding the memo."
From the time Wade had first met Fowler when he was still on the Dallas police force, he had
referred to him as 'Sarge.' The district attorney stood in the doorway for several seconds,
frowning down at the papers in his hand. "Sarge," he finally asked, "what do you think about
this?"
Fowler responded with a question of his own, asking Wade if he recalled a 1978 case of a Tom
Thumb grocery store robbery in which a man named James Armstrong had been falsely convicted
of and sentenced to life in prison. Then-police Chief Don Byrd, having received a convincing
letter from Armstrong that suggested a store cashier had falsely identified him, had assigned
Fowler to reinvestigate the case. As a result of Fowler's efforts, Wade agreed to grant Armstrong a
new trial, and the case had eventually been dismissed.
"I remember it," Wade acknowledged.
"Well," Fowler continued, "I feel even more strongly about this one."
The district attorney looked at Fowler, then Kinne, saying nothing. Then he turned to walk to a
nearby secretary's desk. "Schedule me a press conference for 4 p.m.," Wade said.
Billy Fowler and Norm Kinne stood against the wall in the back of the room, listening as the
district attorney told members of the media that new evidence had come to light that indicated
Lenell Geter was, in fact, innocent of the crime for which he'd been convicted. As Wade spoke, a
secretary approached Fowler and whispered that he had a phone call. It was, she said, from
someone in Lufkin.
In a troubled voice, the now familiar voice explained that his cousin had been receiving
threatening phone calls from Curtis Mason since Fowler and Kinne had first visited him in the
Harris County jail. The calls, he said, had continued following his transfer to Dallas. "He's
threatening to kill her or have someone kill her because she's the only one he ever told about that
Balch Springs robbery. She wants to talk to you."
Though Fowler and Kinne had, while reading reports during their visit to Houston, learned the
name of the woman with whom Mason had been living and assumed she was, in fact, the cousin
who had been mentioned, Fowler pleaded ignorance.
"You've never told me her name or where I can reach her," the investigator said.
After being given the woman's name and phone number, Fowler hung up and immediately called
the jail to request that Mason not be allowed further use of the phone. He then dialed a number
in Houston.
While Wade was addressing the media across the hall, Mason's former girlfriend was telling
Fowler a story that removed any lingering doubts.
When she and Mason had lived together in Dallas, she had known he was dealing drugs but
insisted she had never suspected him of committing robbery until he was arrested in Houston.
In December 1983, on the night the 60 Minutes report on Geter aired, Mason had called her from
the Harris County jail to ask if she was watching the program. "She told me that they stayed on
the phone during the entire Geter segment," Fowler recalled, "and Mason told her, 'That's me
they're talking about, not Geter.'"
He admitted to her that he was the one who had robbed the Balch Springs restaurant and had
even recognized two of the women who had been interviewed on the CBS show.
She went on to tell Fowler of Mason stealing her car and taking it to Beaumont, of joining him in
Louisiana following his accident and of his ultimate arrest while they were living in Houston. She
again insisted that she'd had no idea he was a robber until police came to their apartment and
arrested him.
Though she had known of her boyfriend's involvement in the Balch Springs robbery since
December, she had not placed a call for advice to her Lufkin relative until March, when Mason's
attorney had approached her about serving as an alibi witness.
She began to cry as she continued to tell Fowler her story. "I love Curtis," she said, "but I'm afraid
of him. When that lawyer came to me, and I realized that he wanted me to get on the witness
stand and lie for him, I got really scared. I just didn't want to be a part of it."
"I'm glad you made the decision you did," Fowler replied.
Though never tried for the Balch Springs robbery, Mason was sentenced to 35 years for seven
other aggravated robberies with a deadly weapon, fire arm possession and possession of cocaine
and is now incarcerated at the Clements Unit in Amarillo.
The case was seldom out of Fowler's thoughts. Even after Geter's release from prison, people in
the courthouse would stop him, unaware of his involvement, and ask if he really thought justice
had been served. More than one person suggested that the entire episode had been nothing more
than a case of Henry Wade putting a troublesome and controversial matter to rest in the best way
he could. There were many who still felt Geter was guilty. Since Wade had offered no public
detailing of his office's investigation into the case, Fowler didn't believe it was his place to do so.
"I never felt the district attorney's office was at fault in the case," he would later confide. "It just
took the information brought to it, went to court and got a conviction. What a lot of people were
never aware of was that Norm Kinne worked just as hard to right that wrong as he ever did to get
a conviction. You can't ask more of a man than that."
"I did my job," Kinne said, "and Billy Fowler certainly did his."
Why, then, in the years that followed did he never tell the media details of the investigation that
freed Geter? "Because," Kinne said, "nobody ever asked me." For some time after, a hint was in
full view of anyone who entered his office. In a bookcase lay Mason's gun, which Fowler had
rescued from Beaumont, a constant reminder of the investigation until he finally returned it to
the Beaumont officer.
It was only after leaving the district attorney's office that Fowler decided to try to contact Geter.
"I just felt he had a right to know how he had been cleared," he said. "That way, if he ever wanted
to he would be able to explain it to his friends and family.
"I had read a number of articles in which his mother, in particular, had expressed dismay at the
fact her son had been convicted of a crime. I thought maybe he would like to be able to tell the
story to her."
For several weeks, Fowler left messages for Geter with a supervisor at E-Systems. His calls were
never returned.
Now 43, Lenell Geter has distanced himself--mentally and physically--from the nightmare he
was swept into back when an all-white jury found him guilty of a crime he hadn't committed. If
there is anger, he hides it expertly.
Having lost his enthusiasm for work as an engineer after regaining his freedom, he left ESystems and Texas and returned to South Carolina. Now married and the father of three
daughters, his attention is focused on Lenell Geter Enterprises, an organization that conducts
inspirational and motivational workshops at churches, schools and businesses. Today, he says,
he no longer dwells on his days behind bars. He was sitting in the meeting room ofThe Dallas
Post Tribune, taking a break from greeting old friends and signing copies of his new book,
when he finally heard the details of the investigation Fowler and Kinne had long ago conducted.
And what was his reaction? Shaking his head, he first said he'd have to think about it. Then,
after a while, he ticked off three words: "Surprising," he said, "and shocking...and belated." And
with that he smiled and volunteered a point many who followed his judicial travails might find
surprising. "I do believe in the system," he said. "I was exonerated. And I'm free."
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The piece tells the story Lenell Geter, a young, successful engineer in Greenville, Texas, who was
sentenced to life in prison for the armed robbery of a Kentucky Fried Chicken store. Prosecutors
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849 F.2d 1550
849 F.2d 1550
Lenell GETER, et al., Plaintiffs-Appellees,
v.
James FORTENBERRY, et al., Defendants,
Henry Wade, Randall Isenberg, County of Dallas, Texas,
D.C.
Kuhn, City of Balch Springs and Balch Springs
Police Department, Defendants-Appellants.
No. 87-1605.
United States Court of Appeals,
Fifth Circuit.
July 26, 1988.
Peter L. Harlan, Asst. Dist. Atty., Dallas, Tex., for Wade, et al.
Lawrence W. Jackson, Dallas, Tex., for City of Balch Springs, Tex., et al.
Joseph E. Scuro, Jr., Dallas, Tex., for Fortenberry and Powers.
Donald W. Hill, Donald W. Hicks, Sr., Dallas, Tex., George E. Hairston, New
York City, for Geter and Williams.
Appeal from the United States District Court for the Northern District of
Texas.
Before WISDOM, RUBIN, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
1
The issue before us is whether the district court erred in rejecting, pending
further discovery by appellee, the official immunity defenses raised by a
municipal police officer and two county prosecutors who were sued under 42
U.S.C. Sec. 1983. We have jurisdiction over this interlocutory appeal.
Concerning the prosecutors, we reverse the district court; with respect to the
police officer, we dismiss the appeal and remand.
BACKGROUND
2
In August 1982, a lone black male robbed the Kentucky Fried Chicken outlets
in Greenville and Balch Springs, Texas; the Taco Bell outlet and a 7-11 store in
Garland, Texas; and a woman in Greenville. Appellee Lenell Geter, who lived in
the area, was arrested on August 24 and charged with the Taco Bell robbery. He
was later charged with and indicted for robbing the Kentucky Fried Chicken
outlet in Balch Springs. Geter's roommate, Anthony Williams, was arrested on
August 25 and charged with robbing the 7-11 store. Geter was convicted in
October 1982 and received a life sentence. In December 1983, while Geter's
appeal was pending, appellant Dallas County District Attorney Henry Wade
joined Geter's motion for new trial. In March 1984, Wade dismissed the
indictment and Geter was released from prison after several witnesses
identified another black male as the robber. Williams was tried but was
acquitted.
https://bulk.resource.org/courts.gov/c/F2/849/849.F2d.1550.87-1605.html[3/24/2013 12:58:15 PM]
849 F.2d 1550
3
Geter filed an action against Dallas County, numerous municipalities, police
departments, police officers, and certain prosecutors alleging violations of 42
U.S.C. Secs. 1981, 1983, 1985, and 1986 and certain state laws, seeking
monetary damages and equitable relief. The Dallas County defendants (Wade,
assistant district attorney Randall Isenberg, and Dallas County) and the Balch
Springs defendants (City of Balch Springs, Balch Springs police department,
and police officers D.C. Kuhn and Thomas G. McGee) filed motions for
summary judgment in which they asserted inter alia the defenses of absolute
and qualified official immunity and contended that Geter failed to plead with
sufficient specificity. The district court dismissed all claims against the Dallas
County defendants and Balch Springs defendants under Secs. 1981, 1985, and
1986, and all Sec. 1983 claims against Balch Springs police officer McGee. It
declined to dismiss Sec. 1983 claims against Balch Springs police officer Kuhn
and Dallas County prosecutors Wade and Isenberg, concluding that Geter
should be permitted to conduct discovery before the court would rule on their
asserted immunity defenses. The individuals appeal.1
JURISDICTION
4
Appellants vigorously contest the district court's denial, albeit without
prejudice, of their motions for summary judgment based on their official
immunity from suit. We have jurisdiction to consider this issue because the
district court's denial of an immunity defense is an appealable "final decision"
under 28 U.S.C. Sec. 1291, notwithstanding the absence of a final judgment.
Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).
Jurisdiction obtains over any order by the district court that threatens official
defendants, sued individually for damages under 42 U.S.C. Sec. 1983, with the
cost and diversion of time attendant on pretrial discovery, if there are no fact
issues that mandate discovery specifically pertinent to an immunity defense.
Lion Boulos v. Wilson, 834 F.2d 504, 506-09 (5th Cir.1987). The reason
underlying immediate appealability of such orders is that "immunity" in this
instance means immunity from suit, not simply immunity from liability. Such
immunity, and the policies it furthers, would be effectively lost if this case were
permitted to proceed. Mitchell, 105 S.Ct. at 2816. As we discuss below, that is
the situation for all of the defendants-appellants save Officer Kuhn, with
respect to whom there remains a disputed fact issue on which resolution of his
claim of immunity turns.
IMMUNITY
5
Although the statutory language of Sec. 1983 does not expressly provide for
an immunity defense, courts have consistently held that "government officials
are entitled to some form of immunity from suits for damages. As recognized at
common law, public officers require this protection to shield them from undue
interference with their duties and from potentially disabling threats of liability."
Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396
(1982). The purpose of the immunity doctrine is to avoid "distraction of officials
from their governmental duties, inhibition of discretionary action, and
deterrence of able people from public service." Id. at 816, 102 S.Ct. at 2737.
"Official immunity may be either absolute or qualified, depending on the
functions performed by the particular official at issue. Qualified immunity
shields only that conduct not violative of clearly established constitutional [or
statutory] rights of which a reasonable person would have known. Absolute
immunity, in contrast, precludes any action for damages, so long as the
challenged conduct falls within the scope of the immunity." Austin v. Borel, 830
F.2d 1356, 1358-59 (5th Cir.1987).
6
The seminal case on prosecutorial immunity is Imbler v. Pachtman, 424 U.S.
849 F.2d 1550
409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), in which the Supreme Court held that
prosecutors are cloaked with absolute immunity for actions taken in initiating a
prosecution and in presenting the state's case. Id. at 431, 96 S.Ct. at 995. The
Court's holding was premised on "concern that harassment by unfounded
litigation would cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions instead of
exercising the independence of judgment required by his public trust." Id. at
423, 96 S.Ct. at 991. A prosecutor's absolute immunity extends to activities
"intimately associated with the judicial phase of the criminal process," but the
Court expressly left unanswered the question whether policies that mandate
absolute immunity extend to activities more akin to those of an administrative
or investigative officer, rather than to those of an advocate. Id. at 430-31, 96
S.Ct. at 995. We answered that question in Marrero v. City of Hialeah, 625 F.2d
499 (5th Cir.1980), observing that the Supreme Court in Imbler had focused its
inquiry on the functional nature of the prosecutor's activities rather than on the
prosecutor's status. Consequently, we held that "a prosecutor is not entitled to
absolute immunity when he engages in activities outside his quasi-judicial
role." Id. at 510.2 A prosecutor who acts in a non-advocate role, but
nevertheless within his discretionary authority, is entitled to qualified
immunity, however. Id. at 504-10.
7
Police officers, by contrast, are entitled only to qualified immunity. See
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Austin,
830 F.2d at 1359. They were not accorded absolute immunity at common law.
Furthermore, as a matter of public policy, qualified immunity provides ample
protection to all police officers except those who are plainly incompetent or
who knowingly violate the law. Malley, 106 S.Ct. at 1096.
8
We have consistently held that plaintiffs who invoke Sec. 1983 must plead
specific facts that, if proved, would overcome the individual defendant's
immunity defense; complaints containing conclusory allegations, absent
reference to material facts, will not survive motions to dismiss. Elliott v. Perez,
751 F.2d 1472, 1479 and n. 20 (5th Cir.1985). In cases where government
officials assert absolute or qualified immunity, we have concluded that
"allowing broadly worded complaints ... which leaves to traditional pretrial
depositions, interrogatories, and requests for admission the development of the
real facts underlying the claim, effectively eviscerates important functions and
protections of official immunity." Id. at 1476.3
9
Further, plaintiffs must demonstrate prior to discovery that their allegations
are sufficiently fact-specific to remove the cloak of protection afforded by an
immunity defense. The Court made this point clearly in Anderson v. Creighton,
--- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987):
10
One of the purposes of the Harlow qualified immunity standard is to protect
public officials from the "broad-ranging discovery" that can be "peculiarly
disruptive of effective government." For this reason, we have emphasized that
qualified immunity questions should be resolved at the earliest possible stage of
a litigation. Thus, on remand, it should first be determined whether the actions
the Creightons allege [FBI agent] Anderson to have taken are actions that a
reasonable officer could have believed lawful. If they are, then Anderson is
entitled to dismissal prior to discovery. If they are not, and if the actions
Anderson claims he took are different from those the Creightons allege (and are
actions that a reasonable officer could have believed lawful), then discovery
may be necessary before Anderson's motion for summary judgment on qualified
immunity grounds can be resolved. Of course, any such discovery should be
tailored specifically to the question of Anderson's qualified immunity.
849 F.2d 1550
11
107 S.Ct. at 3042-43 n. 6 (citations omitted); see also Mitchell v. Forsyth, 472
U.S. 511, 527, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985); Jacquez v.
Procunier, 801 F.2d 789, 791 (5th Cir.1986). Where a plaintiff's pleadings assert
facts which, if proven, would defeat a qualified immunity defense, limited
discovery may be permitted tailored to the issue of qualified immunity. See
Lion Boulos, 834 F.2d at 509 (limited discovery permitted where "Boulos's
pleadings and affidavit do state facts which could defeat Wilson's qualified
immunity defense").
A. Prosecutors Wade and Isenberg
12
The district court denied Wade's and Isenberg's official immunity without
prejudice pending further discovery on two claims:
13
(1) the alleged setting of Geter's case for trial with only two weekdays' notice
to Geter's counsel, together with the other circumstances alleged concerning his
lack of preparation and the reasons for that lack;
14
(2) the alleged defamation of Geter, to the extent that such defamation may
have been beyond the scope of the individuals' duties or was done for the
purpose of covering up various defendants' misconduct in Geter's case.
15
Although the district court did not expressly so state, it appears that only
Isenberg was involved in the first claim.4 Geter alleged in his complaint that
"the short notice of trial was the result of Defendant prosecutor's improper
influence upon, or direction to the Court's administration to set Geter's case for
trial on October 18, 1982[.]" Appellee argues that the affidavit of his courtappointed counsel, Edwin Sigel, provides factual proof sufficient to defeat a
motion for summary judgment. In his affidavit, Sigel states that he was
appointed to represent Geter on September 28, 1982. Based on discussions with
Isenberg, he did not believe that the matter would be scheduled for trial at any
time soon, if ever, because Isenberg led him to believe that evidence against
Geter was so overwhelming that Sigel should encourage Geter to plea bargain or
plead guilty. Geter adamantly refused to do either. Sigel thereafter was
informed by Isenberg on October 14, 1982, that the case was scheduled for trial
beginning four days later.
16
We are unable to construe any statements in Sigel's affidavit as even
suggesting a genuine and material factual issue as to whether Isenberg in any
way improperly influenced the setting of the trial date. The district court
therefore should have granted appellants' motion for summary judgment on
this allegation. The teaching of Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986), foreshadowed by our Circuit's decision in Fontenot v.
Upjohn, 780 F.2d 1190 (5th Cir.1986), is that a plaintiff must come forward
with evidence that establishes genuine issues of material fact in order to
properly rebut a defendant's summary judgment motion. Because appellee
could not establish a fact issue concerning a violation of his rights, appellants'
assertion of immunity from suit should have been honored by the trial court.
17
Summary judgment was additionally warranted because even if Isenberg
improperly influenced the setting of Geter's trial, his action was taken in the
course and scope of a prosecution and must be shielded by absolute immunity.
As Imbler held, rejecting a damage claim based on a prosecutor's alleged
solicitation of false testimony, absolute immunity is warranted to the extent
prosecutors play an integral role in the judicial process by "deciding which suits
to bring and [by] conducting them in court." 424 U.S. at 424, 96 S.Ct. at 992.
Our court has consistently interpreted Imbler to prevent damage claims that
arise during the course of prosecutions. See, e.g., McGruder v. Necaise, 733
F.2d 1146 (5th Cir.1984) (decision not to prosecute protected by immunity
849 F.2d 1550
doctrine even where motivated by reprehensible and abhorrent reasons);
McCoy v. Gordon, 709 F.2d 1060 (5th Cir.1983) (presentation of perjured
testimony at trial held protected by the immunity doctrine); Cook v. Houston
Post, 616 F.2d 791 (5th Cir.1979); Bruce v. Wade, 537 F.2d 850 (5th Cir.1976)
(decision to pursue indictment and presentation of witnesses and documentary
evidence at trial and at challenges to conviction protected by the immunity
doctrine). Cf. Marrero, 625 F.2d at 499.
18
19
Geter cannot avoid the immunity defense merely by contending that because
the trial setting of criminal cases is committed by Texas law to the court,
Tex.Code Crim.Pro.Ann. art. 33.08, it is thus ipso facto outside the scope of
Isenberg's prosecutorial role. If we parse the activities of a prosecutor incident
to the bringing and trial of a case so closely, the cloak of immunity would be
tattered. There is no principled way to distinguish this conduct from other
actions in the course of a prosecution that have previously been held absolutely
immune. To accept Geter's rationale would conflict with Imbler 's holding that
"in initiating a prosecution and in presenting the State's case, the prosecutor is
immune from a civil suit for damages under Sec. 1983." 424 U.S. at 431, 96 S.Ct.
995 (footnote omitted).
As to the defamation claim, Geter alleged in his amended complaint:
20
160. Further pleading and in support of Plaintiff Geter's state pendent claim
of defamation, Plaintiff Geter avers that Defendant prosecutors Henry Wade,
Carden and Isenberg, however, have continued to publicly claim Plaintiff Geter
guilty of crimes in their efforts to defame Plaintiffs and to cover-up and conceal
the evident prosecutorial misconduct, perjury, false identifications, police
conspiracy and miscarriage of justice.
21
161. Defendant prosecutors have maliciously and falsely stated and
maintained Plaintiff Geter's guilt in the public media, by characterizing and
defaming Plaintiff Geter as guilty and as being a "Jekyll and Hyde" personality.
22
162. More specifically, Defendant Wade was quoted in the August 18, 1985
edition of the Dallas Morning News as saying,
23
"the press proved him [Geter] innocent whether he was innocent or not. I still
in my own heart feel like he was guilty. But my decision wasn't based on
whether he was guilty or whether he was innocent. My decision was what was
best for the criminal justice system ... what's one man when you are talking
about a whole system."
24
He also answered certain interrogatories concerning Wade's alleged
wrongdoing as follows:
25
[# 1] During the course of prosecution of plaintiff Geter, defendant Wade and
his agents used the public media to defame plaintiff and to declare him guilty in
an effort to deny him his presumption of innocence (while awaiting retrial)
and/or to cover up the negligence and/or constitutional violations that caused
his conviction and severe sentence.
26
***
27
***
28
[# 2] In count three, it is alleged that defendant Wade and his agents
engaged in a conspiracy to conceal and cover-up the police and prosecutorial
misconduct involved in plaintiff Geter's conviction by defaming plaintiff Geter
and his supporters in the public media[.]
849 F.2d 1550
29
***
30
***
31
32
33
[# 3] [A]fter the acquittal of Anthony Williams, defendant Wade again stated
that he had no plans to review appellant Geter's case (Dallas Times Herald,
November 9, 1983) and would not agree to review or reinvestigate the latter's
case at the request of plaintiff's attorney, Edwin Sigel.
***
* * *[# 4] [D]ue solely to the adverse publicity of the "60 minutes" program
[aired in December 1983], defendant Wade agreed with plaintiff['s] attorney,
Edwin Sigel, to join the defense in a motion for a new trial "to improve the
perception of the public in our Criminal Justice System ..." (Dallas Morning
News, December 13, 1983). However, he restated his belief that Geter was
guilty.
34
***
35
***
36
[# 5] [O]n December 15, 1983, defendant Wade announced publicly that his
office would aggressively prosecute Geter and assigned two deputy prosecutors
and investigators to conduct an intensive reinvestigation. Defendant Wade also
indicated that plaintiff's refusal to take the polygraph test by his policeman
indicated plaintiff would fail (because he was guilty).
37
***
38
***
39
[# 6] [O]n or about December 20, 1983, defendant Wade stated publicly that
he did not believe the [TDC] inmate [who had confessed to crimes charged to
Geter] had anything to do with the crimes plaintiff Geter was accused of.
40
***
41
***
42
[# 7] Defendant Wade and his agents have defended the prosecution in the
public media, commended the defendant police officers in their conduct, and
have maintained his belief that plaintiff is yet guilty and has stated so publicly
since plaintiff's exoneration.
43
Paragraph 160 and statements # 1, # 2, and # 7 are conclusory allegations
void of the particular offending remarks necessary to sustain a defamation
charge.5 Cf. Ritzmann v. Weekly World News, Inc., 614 F.Supp. 1336
(N.D.Tex.1985). Paragraph 161 refers to the alleged defamatory nature of a
particular statement, but the only reference in the record to Geter's alleged
Jekyll-and-Hyde personality was a statement in an August 1983 issue of
"People Magazine" attributed not to Wade or Isenberg, but to prosecutor
Kenneth Carden.6
44
Paragraph 162 and statements # 3, # 4, # 5, and # 6 set out Wade's allegedly
offending comments, or at least their substance and meaning. Although we
need not reach the issue, it seems unlikely that these comments, being merely
expressions of Wade's opinion of Geter's guilt or factual statements of the status
of the prosecution, and having been delivered in an official capacity, are
actionable even as a matter of tort law. Texas law authorized Wade to issue
statements to the press relating to criminal prosecutions in order to keep the
849 F.2d 1550
public informed. Tex.Code Crim.Pro.Ann. art. 2.03(b). Further, our court has
recognized a prosecutor's obligation to communicate with the public and has
held that public comments by a prosecutor are entitled at least to a qualified
immunity defense. See Marrero, 625 F.2d at 511.
45
There is a more basic defect in the defamation claim, however, which the
district court may have overlooked. A plaintiff can successfully invoke Sec. 1983
only when his federal statutory or constitutional rights have been violated.
Invasion of an interest in reputation alone is insufficient to establish Sec. 1983
liability because a damaged reputation, apart from injury to a more tangible
interest such as loss of employment, does not implicate any "liberty" or
"property" rights sufficient to invoke due process. Paul v. Davis, 424 U.S. 693,
96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Cook, 616 F.2d at 794-95 ("Appellants'
interest with reputation, false arrest, malicious prosecution, libel and slander
are matters which the state protects by virtue of its tort law.... Having been
deprived of no rights secured under the Constitution, appellants have no claim
cognizable under Sec. 1983."); Thomas v. Kippermann, 846 F.2d 1009, 1010-11
(5th Cir.1988). In Marrero, we held that "[s]ince the defamation alleged here
occurred in connection with the alleged violation of appellants' fourth
amendment rights, the injury to appellants' personal and business reputations
constitutes the deprivation of liberty interests."7 625 F.2d at 519. Despite the
grievous error of a misplaced prosecution, appellee did not lose his
employment. Nor has Geter suffered an injury to his personal reputation plus
an additional injury that, together with the alleged defamation, might amount
to a constitutional deprivation, for his other causes of action against the
prosecutors have been dismissed. Therefore, even assuming that Wade cannot
claim immunity and that his statements are defamatory as a matter of tort law,
the district court should have granted summary judgment because Geter has
failed to show a colorable violation of a "more tangible" interest in connection
with the defamation.
46
Geter contends alternatively that, given the opportunity to conduct discovery
against the Dallas County defendants, he will alleviate any technical deficiencies
in his claims as currently pled. We disagree. He does not intimate any new or
different claims but only that he might discover additional facts to make his
pleaded claims more specific. Additional discovery, however, will not avail
Geter's claims against Wade and Isenberg. In each of these cases, as our
discussion demonstrates, even if Geter's allegations are factually correct, these
defendants are entitled to absolute or qualified immunity or dismissal as a
matter of law. Logically, further discovery cannot enhance Geter's contention
that Isenberg manipulated his trial setting, because any such action was taken,
both chronologically and functionally, in the course of his duties as a
prosecutor. Likewise, the tort of defamation is not actionable under Sec. 1983
against Wade if, as is the case here, Geter has been unable to connect the
defamation to another injury so as to state a Sec. 1983 violation. 8 Allowing
Geter further discovery would amount to condoning a fishing expedition and
would undermine the policies behind the immunity defense. Moreover, the
record does not sustain the contention that Geter was thwarted in his attempt
to conduct discovery against Wade, because he never sought any pertinent
discovery 9 and the Dallas County defendants never moved to limit such
discovery during the eighteen-month pendency of the lawsuit.B. Officer Kuhn
47
In denying officer Kuhn's motion for summary judgment, the district court
wrote:
48
As to Defendant Kuhn, the motion is DENIED with respect to Plaintiffs'
allegations that, in connection with the investigation and prosecution of
Plaintiff Geter, Kuhn elicited false identifications by unlawful means, testified
849 F.2d 1550
falsely, and deliberately concealed exculpatory evidence. The Court considers
that these allegations are sufficient to overcome the qualified immunity
otherwise available to Kuhn as a police officer.
49
We quickly dispose of the charge of giving false testimony by noting that
witnesses are cloaked with absolute immunity. Briscoe v. LaHue, 460 U.S. 325,
335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983); Austin, 830 F.2d at 1360. This
immunity does not disappear if the witness is a law enforcement official, even if
that official's usual level of immunity is only qualified. Immunity is the product
of function, not status. Marrero, 625 F.2d at 504-05.
50
As to the charges that Kuhn elicited false identifications by unlawful means
and deliberately concealed exculpatory evidence, Geter alleged in his amended
complaint:
51
60. On information and belief, on or about August 26, 1982, the Garland
Police defendants passed photos of Plaintiff Geter and Williams to Defendant
D.C. Kuhn of Defendant Balch Springs, Texas Police Department, who also
agreed to the conspiratorial investigation of Plaintiffs, resulting in the false
identification of Plaintiffs Geter and Williams, and the wrongful prosecution
and conviction of Plaintiff Geter for a robbery of a Kentucky Fried Chicken
outlet in that City on August 23, 1982.
52
61. On information and belief, Defendants Fortenberry, Cochran, Wheatley,
Martinkus and Kuhn continued to distribute and to display the photographs of
Plaintiffs to witnesses and victims of armed robberies throughout Dallas
County and adjacent counties, even after the arrests of Plaintiffs Geter,
Williams and McCullough, in an effort to obtain more false identifications of
the Plaintiffs and their prosecution for the same.
53
***
54
***
55
63. On information and belief, numerous unsolved armed robberies were
attributed to and assigned to Plaintiffs Geter and Williams by various law
enforcement agencies in several Texas jurisdictions, even though no evidence
connecting them with such crimes existed except the false and erroneous
identifications referred to hereinabove and concerning false allegations of
Defendants Fortenberry, Wheatley, Martinkus, Cochran and Kuhn.
56
***
57
***
58
67. Defendant police officers without justification, sufficient legal cause and
with an abuse of authority, improperly obtained confidential and privileged
photographs and personal information from state agencies, employers, and
others and displayed and disseminated the same in an effort to obtain false and
fraudulent identifications which could be used to sustain false arrest, false
imprisonment, and malicious prosecution of Plaintiffs.
59
***
60
***
61
84. On information and belief, Defendants Pat Martinkus and D.C. Kuhn
testified falsely as to witness identification of Plaintiff Geter, affirmatively
denied and concealed the existence of exculpatory evidence and falsely labeled
Plaintiff Geter as a suspect in numerous aggravated robberies throughout the
region.
849 F.2d 1550
62
***
63
***
64
127. In furtherance of the conspiracy, Defendants, by omission and/or
commission, engaged in the following overt acts, among others, all committed
under color of law and with knowledge that the prosecutions of Plaintiffs were
wholly unfounded:
65
***
66
***
67
(g) Defendants Fortenberry, Kuhn, Wheatley, and Martinkus obtained false
and fraudulent photographic identifications of Plaintiffs Geter and Williams by
improper and unconstitutional means and attempted to obtain other false
identifications.
68
(h) Defendants Fortenberry, Cochran, Kuhn, Wheatley, and Martinkus
executed false affidavits and/or investigative reports to use as a basis for false
arrest and prosecutions.
69
***
70
***
71
(l) Defendants Fortenberry, Wheatley, Martinkus, and Kuhn ignored,
suppressed, and concealed exculpatory evidence that would contradict or
undermine the false and fraudulent identification of Plaintiffs and/or would
reveal the groundless prosecutions lacking probable cause.
72
We agree with Geter that a police officer cannot avail himself of a qualified
immunity defense if he procures false identification by unlawful means or
deliberately conceals exculpatory evidence, for such activity violates clearly
established constitutional principles. See Manson v. Brathwaite, 432 U.S. 98, 97
S.Ct. 2243, 53 L.Ed.2d 140 (1977); Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963). Geter's charges in his federal pleadings against
Kuhn are, however, conclusory assertions without the leaven of confirming
factual details. For example, Geter's complaint never states who gave the false
identifications, what "unlawful means" were used to procure the identifications,
or what exculpatory evidence Kuhn suppressed and concealed. Absent any such
information in the pleadings, we would normally order the district court to
grant Kuhn's motion to dismiss or for summary judgment, if we were to
conclude that Geter has had the opportunity to plead his best case. See Elliott,
751 F.2d at 1479 and n. 20 (In order to survive a motion to dismiss a claimant
must state specific facts, not conclusory allegations."); Jacquez, 801 F.2d at 791
(Plaintiff must "plead facts with particularity before they may subject public
officials to trial or the vagaries of modern pretrial discovery.").
73
In searching the entire record for "specific facts" which would, if proven at
trial, defeat Kuhn's immunity defense, we note the following "allegations" in
Geter's pleadings in the trial court following his conviction:
74
New evidence material to the defense has been discovered and has become
available since the trial and hearing on Defendant's motion for a new trial, towit: ... (c) The existence of two additional photo lineups that were shown to
state identification witnesses, but wherein Defendant was not identified by
these witnesses. Such evidence supports Defendant's claim that there were
prior suggestive photo lineups (unknown to Defendant's counsel at time of
trial) which tainted the photo identification process[.]
849 F.2d 1550
75
Defendant believes that his photograph was shown to alleged victims of and
witnesses to numerous robberies by law enforcement authorities in a manner
which made his eventual selection as a suspect inevitable in violation of the
equal protection clause and due process requirements of the United States
Constitution.
76
Defendant, further, believes that after his photograph was selected the
identification of Defendant by the witness or witnesses was bolstered by law
enforcement authorities who supplied the witness with false and misleading
information in a manner which tainted the entire identification process in
violation of the due process clause of the Fourteenth Amendment to the United
States Constitution.
77
Defendant asserts the right to examine all of the witnesses to the entire
identification process which caused Defendant's selection out of the presence of
the jury and in advance of trial to determine if this prior identification
proceeding was conducted in a manner that was impermissibly suggestive and
likely to lead to irreparable misidentification at trial or was otherwise in
violation of Defendant's right to due process.
78
The requested evidence is favorable, and exculpatory as it would permit
Defendant to demonstrate to the jury among other things, the following: ... 2.
That Defendant's identification in the instant cause is in all likelihood a
mistaken identification due to his facial similarity to other persons and/or
overzealous police investigatory techniques.
79
The photographic identifications were suggestive and inclusive.
80
Even though Lenell Geter was under investigation and the scrutiny of the
police prior to the occurrence of the crimes for which he was charged, the
prosecuting agencies have been unable to support their charges except through
alleged photo and lineup identifications, the attendant circumstances of which
were suggestive.
81
Defendant has reason to believe and does believe that eyewitnesses to the
offense charged herein provided positive in-court identification testimony only
after repeated viewings of Defendant's photograph and extensive pre-trial
witness preparation and that their identification was initially only tentative in
nature, and by reason of improper suggestion or active coercion, such
testimony became positive in nature.
82
On information and belief, the State has seven eyewitnesses who have
allegedly identified the Defendant and connected him with at least three
aggravated robberies. Of the seven, six witnesses viewed one or more photo
lineups that included a picture of the Defendant and his roommate and made
"tentative" or firm identification.
83
It is averred that the photo lineups were suggestive and/or defective and the
identifications--tentative or otherwise--were unreliable under the
circumstances of this case. 10
84
These statements make clear what Geter alleged in only conclusory fashion in
his federal pleadings: he claims officer Kuhn utilized the above-enumerated
improperly suggestive tactics in obtaining eyewitness identifications. The
statements also contain sufficient facts that, if proven at trial, would defeat
Kuhn's immunity defense. We therefore are confronted with a dispute not
unlike that in Lion Boulos. There the dispute concerned an allegedly illegal EPA
search of gas stations and seizure of gasoline samples during an investigation.
The defendants asserted, inter alia, that they had obtained consent to their
849 F.2d 1550
actions (thus avoiding the warrant requirement), whereas plaintiff's pleadings
and affidavits called into question whether consent, if given, had been coerced.
Because seizure of gasoline samples and delivery records without warrants or
voluntary consent would violate clearly established law (and thus frustrate an
immunity defense), we dismissed the EPA's appeal of the district court's order
permitting limited discovery on the consent issue. Without such discovery, and
resolution of the factual dispute, the district court could not rule on the
defendants' immunity claim.
85
As in Lion Boulos, we have a factual dispute: Geter alleges that Kuhn utilized
certain specific, improper tactics in procuring eyewitness identifications, and
Kuhn swears that at all times he acted properly. Because Kuhn would violate
clearly established law by procuring identifications by improper means, neither
we nor the district court can rule on his immunity defense until the factual
dispute concerning his identification tactics is resolved. We therefore dismiss
the appeal as to Officer Kuhn, pending discovery limited to resolution of this
factual dispute. See Anderson v. Creighton, 107 S.Ct. at 3042 n. 6. If, after such
discovery is concluded, the trial court decides that Kuhn did not violate clearly
established law while obtaining eyewitness identifications, then Kuhn is
entitled to his immunity defense and the court may yet grant his motion to
dismiss or for summary judgment.
86
For the foregoing reasons, we REVERSE the district court's denial of
immunity to defendants Wade and Isenberg, DISMISS the appeal with respect
to officer Kuhn, and REMAND for judgment in favor of Wade and Isenberg and
further proceedings in accordance herewith.
1
The district court also concluded that Geter had alleged certain claims against
the governmental entities concerning which he was entitled to conduct
preliminary discovery with respect to the existence and scope of policymaking
authority. The parties concede that issues of municipal liability are not yet ripe
for appellate review
2
The plaintiffs charged in Marrero that the prosecutors had engaged in an
unconstitutional search and seizure with police officers
3
To mitigate the harshness of these pleading requirements and to balance the
right of state officials to be free from frivolous suits and the right of
complainants to be fairly heard, we have declined to dismiss an inartfully drafted
complaint unless we have concluded that the plaintiff has had an opportunity to
plead his best case. Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir.1986)
4
Geter apparently agrees. See Appellee's Opening Brief at 10-11 (recitation of
alleged facts surrounding setting of trial date makes no reference to Wade); at 22
("Sigel's affidavit is clearly the source of the allegations regarding Isenberg's
interference with Geter's attorney and the setting of his trial."); at 31-33
(discussion of whether Wade or Isenberg are entitled to absolute or qualified
immunity makes no reference to Wade in conjunction with alleged interference
in setting trial date)
5
Isenberg is mentioned only summarily in paragraph 160. The district court
should have granted summary judgment to Isenberg on this charge
6
Carden was not served by plaintiffs and accordingly has not appeared in this suit
7
Contrary to appellants' argument, the fact that Wade's comments were made
after Geter was arrested and convicted would not alone excuse liability, for as we
849 F.2d 1550
also held in Marrero:
[I]t is now apparent that the defamatory communication need not cause the loss
of the protected right, or more tangible interest, in order to satisfy the stigmaplus requirement of Paul. Instead, it is sufficient that the defamation occur in
connection with, and be reasonably related to, the alteration of the right or
interest.
625 F.2d at 519 (emphasis in original).
8
The district court deferred ruling on Wade's and Isenberg's summary judgment
motions and held Geter was entitled to conduct further discovery on the "scope
of the individual defendants' duties," under the aegis of Austin Municipal
Securities, Inc. v. Nat'l Ass'n of Securities Dealers, Inc., 757 F.2d 676, 688 (5th
Cir.1985). We find that case distinguishable because, as it states, it considers as a
question of first impression the scope of immunity available to employees of a
private organization charged with enforcement of securities regulations. The
nature of their duties must be subjected to some discovery based on the novelty
of this issue and obvious uncertainty concerning their precise functions.
Prosecutors Wade and Isenberg, on the other hand, are the garden-variety
district attorney and assistant whose authority to bring and pursue criminal
charges, cf. Imbler, in the case before us needs no hair-splitting factual
development prior to determination of their immunity defenses
9
Not until August 21, 1986, did Geter make his initial discovery request: to permit
entry upon the premises of the Dallas County jail "for the purposes of inspection,
measuring, [and] photographing the detention areas utilized by Defendant for
the incarceration" of Geter. Defendants requested a protective order "excusing
them from responding to the Plaintiffs' discovery requests" on September 17,
1986. The district judge referred the requests to a magistrate on September 17,
1986, who thereafter issued the requested protective order
Later, Geter discovered an electronic surveillance device in his house, and on
April 16, 1987, he filed a motion seeking a general order requiring all defendants
to submit to his discovery demands. The magistrate denied Geter's motion for
discovery concerning the electronic surveillance of Geter's house after finding no
factual allegations or evidence of the defendants' involvement in the surveillance.
10
These statements are quoted from: --Motion for New Trial (filed September 16,
1983); --Motion for Identification Hearing (filing date unclear); --Motion for
Disclosure of Favorable Evidence (filing date unclear); --Defendant's Motion for
Identification Hearing and for Suppression of Lineup and Photographic
Identifications (filed January 30, 1984); --Attorney's Affidavit in Support of
Defendant's Motion to Dismiss in the Interest of Justice (dated January 30,
1984); --Application for Depositions (filing date unclear) (similar statements
were made in subsequently filed Motion to Restrict State's Access to
Identification Witness); Motion to Permit Expert Testimony on the Reliability of
Eyewitness Identification and Police Lineups (filed February 13, 1984)
LEGAL DEBATE PERSISTS IN FREED BLACK'S CASE - NYTimes.com
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LEGAL DEBATE PERSISTS IN FREED BLACK'S CASE
Published: March 25, 1984
DALLAS, March 24— The case of Lenell Geter, a black engineer
who was given a life sentence for an armed robbery prosecutors now
say he did not commit, has set off a debate here over what went
wrong and how often the same thing happens.
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Most of those involved in the case portray a sobering breakdown in
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''Everything went wrong,'' said Peter Lesser, a Dallas lawyer who
was not involved in Mr. Geter's defense but has tried many similar
cases. ''Nothing went right. All checks and balances, if we have any,
broke down. And there's no question there are other Lenell Geters
in the pen right now.''
Mr. Geter was given a life sentence by a jury for an armed robbery of a Kentucky Fried
Chicken restaurant in the Dallas suburb of Balch Springs in August 1982. Such a
sentence for armed robbery is not mandatory in Texas. He was granted a new trial last
December after news accounts raised questions about the arrest and prosecution. The
trial was scheduled to begin on April 9.
However, District Attorney Henry Wade of Dallas County said Wednesday that his office
had found another suspect in the case and asked that all charges against Mr. Geter be
dropped. Handling of Case Questioned
Defense lawyers say the case raises serious questions about the use of testimony
regarding offenses separate from the one being tried, the manner in which Mr. Geter
became a suspect, the way his picture was circulated to law- enforcement agencies and
the validity of eyewitness testimony.
Defense attorneys say that guidelines on those issues are vague and that the Texas
Legislature or the courts should set clearer guidelines.
Some defense attorneys have also complained that the Dallas County Distict Attorney's
office showed more interest in getting a conviction than in determining whether Mr.
Geter should be tried. Prosecutors said they were not responsible for the police work or
for preparation of the defense.
''We're being blamed for everyone's mistakes, but it's not our job to investigate the
defense's case for them,'' said Norman Kinne, the chief felony prosecutor in the District
Attorney's office, who did not handle the original case but was scheduled to prosecute
the retrial.
''We granted him a new trial, offered him a polygraph he didn't take, interviewed his
alibi witnesses and found the man who we believe did it,'' he said.
http://www.nytimes.com/1984/03/25/us/legal-debate-persists-in-freed-black-s-case.html[3/24/2013 2:10:49 PM]
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The Greenville police, traced a license number to Mr. Geter's car and began surveillance
of his home. The police investigated him and circulated his photo to other towns, where
his picture was eventually picked out by robbery victims.
5. Court Says South Korean Dictator, Father
of Current President, Violated Constitution
Equally controversial in Mr. Geter's case was the use of the testimony about crimes with
which he was not charged. Mr. Geter was sentenced to life after prosecution witnesses to
two other robberies identified him as a robber.
Mr. Geter's attorneys also said they had planned to use expert testimony at his retrial to
show that eyewitness testimony, particularly about blacks by whites, was often
unreliable.
Bradley Lollar, a Dallas lawyer who aided in the defense of Mr. Geter's former
roommate, Anthony Williams, who was also cleared of armed robbery charges in a
separate case, said Thursday that he would suggest an amendment to the Texas criminal
code. It would require judges to caution juries that the prosecution has a higher burden
of proof in criminal cases that are based solely on eyewitness testimony.
4.
EDITORIAL
North Carolina Overreaches
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Case
7. Heating Oil Companies Face Inquiry on
Purity of Fuel
8. Zimbabwe Rights Lawyer Denied Bail
9.
INDIA INK
Court Opens Delhi Gang Rape Trial to
Press
10. Stars of a Violent Rap Video Are Found
Guilty of Violent Crimes in Real Life
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TEXANS COURT SETS TRIAL FOR BLACK ROBBERY SUSPECT - The New York Times
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February 19, 1984
TEXANS COURT SETS TRIAL FOR BLACK ROBBERY
SUSPECT
By PETER APPLEBOME
DALLAS, Feb. 18— A judge declined today to dismiss armed robbery charges against a black engineer and
said the case would go to trial April 9.
Judge John Ovard of District Court, ending pretrial hearings in the case, said he did not have authority under
Texas law to dismiss the case and repeated an earlier assertion that the arrest of the engineer, Lenell Geter,
raised issues that ''reach significant constitutional dimensions.''
The 26-year-old Mr. Geter had been sentenced to life in prison for an August 1982 armed robbery that people
who back him say he did not commit. Defense attorneys have contended that Mr. Geter's arrest was a result of
racism and shoddy police work.
His conviction was overturned and he was given a new trial in December after questions were raised about the
fairness of his arrest and trial. Defense Is Encouraged
Defense attorneys said the judge's ruling showed he took seriously their assertions that Mr. Geter should never
have been arrested. They were also pleased with his ruling today that prosecutors could not use jury selection
to exclude blacks.
Prosecutors said they had doubts about the reasons for the week of pretrial hearings that wound up today. ''If
he didn't have the authority to dismiss the case, I don't know why we're here all week,'' a prosecutor, Norman
Kinne, said.
A defense attorney, Edwin Sigel, said the evidence of Mr. Geter's innocence was powerful enough that it should
have shown prosecutors that their client should not be retried. ''They have to prove his guilt beyond a
reasonable doubt,'' Mr. Sigel said. ''There's not a chance in hell of them doing that.''
But prosecutors said there was no reason to handle Mr. Geter's case differently from others. ''This is just
another armed robbery that's been blown way out of proportion by the media,'' said Gerald Banks, a
prosecutor. Prisoner's Lie Test Cited
The ruling came amid statements by prosecutors that a convicted robber whose case has similarities failed a
police lie detector test concerning his involvement in the robbery of $615 from a Balch Springs fried chicken
restaurant, the crime of which Mr. Geter is accused.
The inmate, Jerry Jerome Stepney, came to the attention of prosecutors in December when it was learned that
http://www.nytimes.com/1984/02/19/us/texans-court-sets-trial-for-black-robbery-suspect.html?pagewanted=print[3/24/2013 2:16:33 PM]
TEXANS COURT SETS TRIAL FOR BLACK ROBBERY SUSPECT - The New York Times
he committed several armed robberies around the time Mr. Geter was being investigated that bore some
resemblance to the method of operation attributed to Mr. Geter.
However, differences in the crimes, such as the manner of the assailants at the scene, have led prosecutors and
defense attorneys to question whether Mr. Stepney could have a bearing on Mr. Geter's case.
Prosecutors say they are still convinced that Mr. Stepney did not commit the Balch Springs robbery. He denies
guilt, and an inmate who said Mr. Stepney had committed the crime told a story that differed markedly from
the facts in the Balch Springs case.
But defense attorneys say it was significant that Mr. Stepney failed the test, and they rebuked prosecutors for
not releasing the results of the test earlier. It was taken Tuesday. 'Interesting,' Defense Says
''It's a very interesting development and one we'll have to explore further,'' said George Hairston, a defense
attorney.
Three police officers said that when Mr. Geter was arrested, he implicated his former roommate, Anthony
Williams, in the robberies in which Mr. Geter is accused.
Mr. Williams was acquitted in November of the single armed robbery for which he was charged. Mr. Geter
denies he involved Mr. Williams in the case at hand.
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http://www.nytimes.com/1984/02/19/us/texans-court-sets-trial-for-black-robbery-suspect.html?pagewanted=print[3/24/2013 2:16:33 PM]
AROUND THE NATION; Texas Prosecutor Links Black to Murder Pistol - The New York Times
article now. »
February 14, 1984
AROUND THE NATION
AROUND THE NATION; Texas Prosecutor Links Black to
Murder Pistol
AP
DALLAS, Feb. 13— Lenell Geter, a black engineer who says his armed robbery conviction resulted from
racism, owned a gun that was used in a South Carolina murder, a prosecutor said today in a hearing.
But the assistant district attorney, Norman Kinne, said he could not link Mr. Geter to the murder nor could he
link the gun to the 1982 robbery of a Texas chicken restaurant for which Mr. Geter spent 16 months in prison.
Mr. Geter, 26 years old, an employee of a military contractor, E-Systems, was sentenced to life in prison for
the robbery, but was released in December for a new trial after news reports raised doubts about his guilt.
The hearing is being held to resolve what evidence prosecutors must make available to defense lawyers before
the trial, scheduled for April 9.
Mr. Kinne said the murder in South Carolina had been solved and the gun was last traced to the police
property room in Estill, S. C., where Mr. Geter's brother-in-law is chief of police.
Mr. Kinne mentioned the pistol in a discussion of what evidence seized in a search of Mr. Geter's apartment
should be made available to defense attorneys.
A defense lawyer, George Hairston, immediately objected to the remark as being presented for the benefit of
reporters in the court.
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http://www.nytimes.com/.../02/14/us/around-the-nation-texas-prosecutor-links-black-to-murder-pistol.html?pagewanted=print[3/24/2013 2:19:28 PM]
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middle% found 1 time. H 3419
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Session 105 (1983-1984) H 3419 Concurrent Resolution, By K. Patterson, L. Blanding, T.D. Broadwater,
T. Ferguson, H.U. Fielding, S.R. Foster, T. Gadson, F. Gilbert,
B.J. Gordon, I.C. Joe, J.W. Matthews, E.M. Middleton, T.W. Mitchell,
J. Murray, L.L. Taylor, M. Washington, J.M. White, D. Williams and
R.R. Woods
A Concurrent Resolution to request Henry Wade, District Attorney for Dallas
County, Texas, to allow South Carolina native Lenell Geter to undergo a
polygraph examination administered by an appropriate person not employed by a
Texas Law Enforcement Agency for the purpose of determining whether or not to
continue his prosecution for armed robbery
01/25/84 House Introduced HJ-662
01/25/84 House Referred to Committee on Judiciary HJ-663
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http://www.scstatehouse.gov/...ry.php?search=DOC&searchtext=middle%25&category=LEGISLATION&session=0&conid=6820903&result_pos=900&keyval=1053419&numrows=100[3/24/2013 1:01:12 PM]
CONTROVERSY BREWS OVER POLYGRAPH EVIDENCE... Stock Footage & Video Clips | NBCUniversal Archives
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5112601038_s34
Rights Managed
Owner: NBC News
Clip Name: 5112601038_s34
Date: 1/17/84
courts
Title: CONTROVERSY BREWS OVER POLYGRAPH EVIDENCE OF FREED CONVICTS ASSERTIONS OF INNOCENCE
today
Production Unit: TDY
Media Type: AS
crime
Media ID: T840117
departures
Ardome ID: 1100100616462571922
edwin sigel
Hit Time: 08:32:33
texas
Duration: 00:01:07;00
dallas
Location: Dallas;Texas
Era: 1980s
Personalities: Geter, Lenell;Sigel, Edwin;Kinne, Norman
Comments: Acc #: 112618;Edited;Reviewer: RMP;Created By: RMP;
Long Description:
CONTROVERSY BREWS OVER POLYGRAPH EVIDENCE OF FREED CONVICTS ASSERTIONS OF INNOCENCE
FREED ROBBER GETER WALKS FROM COURT ROOM IN DEC 83. DEFENSE ATTY SIGEL SAYS THERES NO REASON THAT
A LOCAL POLICE OFFICER MUST ADMINISTER A LIE DETECTOR TEST TO GETER. ASST DA KINNE TELLS PRESS GETERS
LIE DETECTOR TESTS ADMINISTERED BY OUT-OF-TOWN AUTHORITIES WERENT PART OF THE DEAL BY WHICH HE WAS
RELEASED. GETER & LAWYERS WALK FROM COURTHOUSE.
TA
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Not all content on this site is available for licensing. © 2011 NBCUniversal Media, LLC. All Rights Reserved. Unauthorized reproduction without the express written consent of NBCUniversal is prohibited by law.
http://www.nbcuniversalarchives.com/nbcuni/clip/5112601038_s34.do[3/24/2013 1:48:53 PM]
Spartanburg Herald-Journal Jan 13, 1984
Lenell Geter Rejects Polygraph, Opts for April Trial
DALLAS (AP) - Attorneys for a black engineer who spent 14 months in prison on an armed robbery
conviction rejected a proposed polygraph test Monday that could have cleared him of the charges, and
instead opted for a new trial in April.
Attorneys for Lenell Geter made a last-minute attempt Monday to modify an agreement with
prosecutors on who would administer the lie-detector test, telling prosecutors that a Dallas police
detective previously agreed upon was unacceptable.
Dallas County District Attorney Henry Wade said that if Geter passed a polygraph administered by
Detective William Parker, all charges against him would be dropped. If Geter did not take the test by
Monday, he would face a new trial April 9, Wade said.
“We are not going to take the Bill Parker polygraph,” said Geter’s court-appointed defense attorney,
Edwin Sigel. “We’ve had him take two polygraphs in New York and he passed with flying colors.”
Sigel presented results of the two New York polygraphs, administered by Nat Laurendi of Polygraph
Analysis Center of New York, to Dallas County Prosecutor Gerald Banks and asked him to accept them
in lieu of the Parker polygraph.
“When we talked about the polygraph while Geer was still in prison we all agreed that all attorneys
involved would be present and would agree on the questions,” Banks said. “We didn’t have anything to
do with the questions on those polygraphs.”
“I think it’s rinky-dink. We don’t know if that was really Lenell Geter taking the tests or not,”
Banks said. “he’s not going to be a free man tomorrow because they welched on a deal.”
Sigel had proposed Parker administer the test while defense attorneys were negotiating to release
Geter from prison.
Geter, 26, was convicted and sentenced to life in prison in 1982 for the $615 robbery of a fast-food
restaurant in Balch Springs.
His case gained national attention because his colleagues at a defense contractor claimed he was at
work on the day of the robbery and that his arrest resulted from little more than racism and incompetent
police work.
Geter remained in South Carolina at his home Monday.
George Hairston, an attorney with the National Association for the Advancement of Colored People,
said he had talked with Geter and told him attorneys were unable to agree on the polygraph option.
“He’s understandably upset,” Hairston said. “He was hopeful that something might come out of our
negotiations that could avoid a trial.”
Sigel said Parker did not have a national _________________ He said he had agreed to Parker
during “pre-release negotiations,” and did not think that should be binding.
Banks said he believed defense attorneys were stalling.
“They’re just trying to move the goalposts back,” said Banks. “As far as we are concerned, he’s
going to do what he said he would do and what we agreed to do at their insistence.”
Hairston said he favored a three-man polygraph team, including Parker, because he believes the
police detective would be biased by his police background.
Geter took a polygraph test in 1982, but his lawyers said its results were inconclusive.
Geter was convicted on the basis of five eyewitnesses to the robbery, even though they incorrectly
estimated his height. Nine co-workers since have claimed he was at work 50 miles from Balch Springs in
Greenville the day of the robbery.
Geter spent 14 months in prison before Wade, conceding that mounting public pressure brought the
trial’s fairness into question, agreed to the polygraph option, or a new trial.
Geter came to the attention of Greenville police after an elderly white woman reported a “suspicious”
black man sitting in a city park. Greenville police then distributed to Dallas-area police departments
photographs of Geter and five other black E-systems engineers from South Carolina. They were labeled as
robbery suspects, and Geter was identified by five witnesses from the photographs.
No physical evidence was found linking Geter to either of two holdups with which he was charged.
He was never tried on the second.
Geter’s roommate at the time, E-Systems engineer Anthony Williams, was tagged with another
robbery, but was acquitted with the help of NAACP attorneys.
FACTS PERPLEXING IN TEXAS ROBBERY - The New York Times
article now. »
December 19, 1983
FACTS PERPLEXING IN TEXAS ROBBERY
By PETER APPLEBOME
DALLAS, Dec. 18— To George Hairston, an N.A.A.C.P. attorney, it has become almost a holy war against a
judicial system he characterizes as ''callous, uncaring and racist.''
To Gerald Banks, a Dallas County prosecutor, it has become a frustrating news media circus in which charges
of discrimination have obscured the evidence against a guilty man.
To engineers at E-Systems in Greenville, Tex., it has become a determined crusade to right a wrong.
Despite charges that the arrest and prosecution of Lenell Geter on charges of armed robbery stemmed from
racial bias, the case remains a complex patchwork of contradictory evidence. And 16 months after Mr. Geter's
arrest, there are enough inconsistencies in the case to allow one side to be certain that Mr. Geter is a man
unjustly charged and convicted, and the other side to see him as a Jeckyll-and-Hyde lawbreaker.
Life Sentence for Robbery
Mr. Geter, a 26-year-old black engineer, was granted a new trial last week after being given a life sentence in
October 1982 for the robbery two months earlier of a fried chicken restaurant in the Dallas suburb of Balch
Springs.
His former roommate and fellow E-Systems engineer, Anthony Williams, was acquitted in November on a
separate robbery charge stemming from the same investigation.
Despite having no criminal record, he was given a life sentence based partially on testimony by a Greenville
police officer who said he was told by a South Carolina sheriff that Mr. Geter was ''probably an outlaw.''
But Ed Darnell, the South Carolina sheriff, has since testified that he said just the opposite, that Mr. Geter had
no criminal background.
Mr. Hairston, the attorney for the National Association for the Advancement of Colored People, talks in quick,
angry bursts when he discusses the case. He says that testimony and other questionable aspects of the arrest
and prosecution add up to an almost archetypal injustice: a man imprisoned because of his color. 'They Can't
Win This Case'
Any further prosecution will merely ''perpetuated an injustice,'' he says, adding: ''They can't win this case. At
this point, I think they're just pursuing a vendetta against the N.A.A.C.P. and a vendetta against Lenell Geter.''
But prosecutors and law-enforcement officers in at least three Dallas- area communities remain adamant that
http://www.nytimes.com/1983/12/19/us/facts-perplexing-in-texas-robbery.html?pagewanted=print[3/24/2013 2:21:02 PM]
they have firm testimony from eyewitnesses that proves Mr. Geter is guilty in the Balch Springs robbery and
perhaps in others as well.
He has been charged with two other robberies stemming from the same investigation. Supporters say
photographic lineups were manipulated to highlight Mr. Geter, but eight victims in four different robberies
have identified him as the man who robbed them.
''A jury found him guilty once and there's not any evidence to show otherwise now,'' said Mr. Banks. ''Five
eyewitnesses say it's him and no one else. To say this is a conviction based on race is as far out in left field as
you can get.''
Besides the eyewitness testimony, Mr. Banks said Mr. Geter had failed a polygraph, or lie detector, test earlier
this year administered by a respected polygraph operator. Undecided About Polygraph
Mr. Geter has not yet decided whether to take another polygraph test. District Attorney Henry Wade has said
he will drop the charges if Mr. Geter takes and passes another such test.
Mr. Hairston, citing the unreliability of polygraphs and his displeasure with the choice of a Dallas police officer
to conduct it, said he had serious doubts about having Mr. Geter take it and accused the prosecution of
resorting to ''a publicity gimmick.''
Mr. Banks sees things differently. ''I don't believe he'll take it because he knows he can't pass it,'' he said of Mr.
Geter. ''All along he's been saying, 'I want to pass this thing so I can get this over with.' Well, now it's time to
belly up to the bar.''
The polygraph is not admissible in court, and defense attorneys contend that the eyewitness testimony is badly
flawed. Proving Mr. Geter's guilt beyond a reasonable doubt will be extremely difficult, according to judges and
lawyers not involved in the case. Most of the eyewitnesses initially gave descriptions of the robber that were
very different from Mr. Geter's characteristics, and no gun, clothing, fingerprints or other physical evidence
has been found. Support of His Co-Workers
Mr. Geter has the support of his co- workers, who have worked steadily in his behalf since his arrest.
Nine E-Systems workers testified at his trial that he was at work the day of the robbery, but none placed him
at work at the precise time of the crime.
Since then, two employees not among the group gathered by Mr. Geter's court-appointed attorney, who put
together his defense in little more than a day, say they can place mr. Geter at work at a time that would have
made it impossible for him to have committed the robbery.
One, Debra Cotten, a draftsman, says she talked with Mr. Geter about 3 P.M. the day of the Balch Springs
robbery, which took place 20 minutes later almost 50 miles away.
The other, Dan Walker, a senior design engineer, says he can place Mr. Geter at work around 3:45 or 4 P.M.
''Unless old Captain Kirk dematerialized him and beamed him over there, he couldn't have made it back by
then,'' Mr. Walker said. ''He was here at work. There's no question in my mind - none at all.''
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MISTAKEN IDENTITY CONSIDERED IN DALLAS CASE - The New York Times
article now. »
December 18, 1983
MISTAKEN IDENTITY CONSIDERED IN DALLAS CASE
DALLAS, Dec. 17— A Dallas County prosecutor said today that his office was investigating the possibility
that a 22-year-old armed robber could have committed the robbery for which Lenell Geter was convicted in
October 1982. But he said he doubted the investigation would change his belief that Mr. Geter was guilty.
Mr. Geter, convicted a year ago for the August 1982 armed robbery of a fried-chicken restaurant in Balch
Springs, Tex., was granted a new trial Wednesday and was released on $10,000 bond. No date has yet been set
for a retrial.
The prosecutor, Assistant District Attorney Gerald Banks, said investigators were trying to determine whether
the other man, Jerry Jerome Stepney, could be responsible for the Balch Springs robbery. Mr. Stepney was
convicted of two armed robberies committed about the time of the one for which Mr. Geter is to be retried.
Mr. Banks said the cases ''are somewhat similar in that a weapon was taken from a gym bag, but that's it.''
''So far it hasn't changed our view on the case'' of Mr. Geter, Mr. Banks said.
Supporters of Mr. Geter, an engineer, say he is the victim of racism and shoddy police work. But Dallas County
officials say they are convinced he is the right man, and District Attorney Henry Wade this week appointed his
two top felony prosecutors to the case. Similarities and Dissimilarities
The Stepney investigation began amid reports of similarities in method and in physical descriptions between
Mr. Stepney's robberies and the one for which Mr. Geter is accused.
Mr. Stepney, convicted of two armed robberies, was identified as a suspect in five others that occurred in
August 1982 when the police began to suspect Mr. Geter in a series of armed robberies.
Witnesses gave similar descriptions for the suspects in a northwest Dallas robbery for which Mr. Stepney
confessed and the one in which Mr. Geter is accused.
In both instances, witnesses described a black man in his 20's who pulled a large revolver from a gym bag and
then escaped.The witnesses said they did not see a getaway car. The Stepney Case
In an interview with The Dallas Times Herald, however, Mr. Stepney confessed a third robbery but said he did
not commit the one in Balch Springs. ''I'll admit to what I've done,'' he said.
Mr. Banks said no witnesses to any of the robberies had confused Mr. Geter with Mr. Stepney. And he said the
mode and the suspects' manner at the scene differed markedly in some cases.
http://www.nytimes.com/1983/12/18/us/mistaken-identity-considered-in-dallas-case.html?pagewanted=print[3/24/2013 2:24:57 PM]
MISTAKEN IDENTITY CONSIDERED IN DALLAS CASE - The New York Times
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http://www.nytimes.com/1983/12/18/us/mistaken-identity-considered-in-dallas-case.html?pagewanted=print[3/24/2013 2:24:57 PM]
TEXAS URGED TO REOPEN BLACK ENGINEER CASE - The New York Times
article now. »
December 11, 1983
TEXAS URGED TO REOPEN BLACK ENGINEER CASE
By Peter Applebome
DALLAS, Dec. 10— Despite increasing pressure, the Dallas County District Attorney's office has ruled out any
further investigation of the 1982 robbery that brought a life sentence for a black engineer whose supporters say
he could not have committed the crime.
The engineer, Lenell Geter, has been imprisoned since his conviction in October 1982 for the $615 robbery of a
fried chicken restaurant in the Dallas suburb of Balch Springs. Mr. Geter, who is 26 years old, was sentenced to
life in prison even though he had no prior criminal record.
Mr. Geter's roommate, Anthony Williams, who was arrested along with Mr. Geter, was acquitted in November
of charges in a separate robbery arising from the same investigation.
That acquittal and increasing scrutiny of the case have put pressure on Dallas County to reopen its
investigation. Supporters say the arrests of both Mr. Geter and Mr. Williams were racially motivated.
Reopening of Inquiry Is Denied
George Hairston, an attorney for the National Association for the Advancement of Colored People who is
representing Mr. Geter, said this week that the prosecutor, Ken Carden, would reopen an investigation of the
case.
But Mr. Carden angrily denied that, saying: ''I'm not doing anything for Lenell Geter. We are not going to
reopen our investigation.''
District Attorney Henry Wade complained that the defense was trying the case through the news media.
But Edwin Sigel, another attorney for Mr. Geter, said prosecutors had refused to interview witnesses who he
said could prove Mr. Geter was at work when the robbery was committed.
''In the initial stages this was a matter of racism - he wouldn't have been arrested if he wasn't black,'' Mr. Sigel
said of his client. ''Now it's just a case of bureaucratic intransigence to the 100th degree.'' Governor Urges Early
Review
The case has been appealed to the Texas Court of Criminal Appeals. Gov. Mark White said this week that he
was ''very concerned'' about Mr. Geter's sentence and asked the court to hear the case as soon as possible.
Mr. Geter and Mr. Williams were among a group of six black engineers from South Carolina State College who
went to work in 1982 for E-Systems, a military and electronics contractor in Greenville, Tex., 55 miles
http://www.nytimes.com/1983/12/11/us/texas-urged-to-reopen-black-engineer-case.html?pagewanted=print[3/24/2013 2:26:55 PM]
TEXAS URGED TO REOPEN BLACK ENGINEER CASE - The New York Times
northeast of Dallas.
In August 1982, the Greenville police arrested both men while investigating a number of robberies in the area.
They were arrested after a white woman noticed Mr. Geter in a park near her home and complained to the
police.
An all-white Dallas County jury convicted Mr. Geter of armed robbery of the Balch Springs restaurant after five
witnesses picked him out of police photographs.
No guns, money, clothing, fingerprints or other physical evidence against either Mr. Geter or Mr. Williams
were found. Nine of Mr. Geter's co-workers testified that he was at work the day of the robbery and have
raised questions about the trial. Sheriff Denies Testimony
Lieut. James Fortenberry of the Greenville police force, a prosecution witness, testified that he had been told
by Sheriff Ed Darnell of Bamberg County, South Carolina, that Mr. Geter was ''a bad character'' and ''probably
an outlaw.'' But Sheriff Darnell has since testified that he said just the opposite, that Mr. Geter had no criminal
background.
Debra Cotten, an E-Systems employee, said she recalled asking Mr. Geter to take part in a Bible study group
and co-ed softball game about 3 P.M. on the day of the robbery, which took place at 3:20 P.M.
She said she was sure of the time because she took her break at 2:30 and then returned to her desk for at least
25 minutes before talking to Mr. Geter.
''I'm absolutely sure,'' she said. ''There's no way he could have committed the robbery.
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http://www.nytimes.com/1983/12/11/us/texas-urged-to-reopen-black-engineer-case.html?pagewanted=print[3/24/2013 2:26:55 PM]
New Trial for Texas Prisoner Asked by Carolina Prosecutor - NYTimes.com
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JOBS REAL ESTATE AUTOS
TEXAS
New Trial for Texas Prisoner Asked by Carolina
Prosecutor
UPI
Published: November 21, 1983
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COLUMBIA, S.C., Nov. 20— Travis Medlock, the South Carolina
Attorney General, has asked Attorney General Jim Mattox of Texas
to seek a new trial for Lenell Geter, a black engineer from South
Carolina who was convicted in October 1982 of holding up a fastfood restaurant near Dallas.
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He was sentenced to life although he had no criminal record. Mr.
Geter's roommate, Anthony Williams, was accused in Dallas of a
similar robbery but was acquitted earlier this month. Both men's
trials drew national attention and led to charges of racism.
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Lenell Geter - BonPasse Exoneration Services

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