James Gill: Wallace case a sad spectacle

By James Gill

Federal judge Brian Jackson makes it seem obvious that Herman Wallace was wrongfully convicted, so we are left to wonder why nobody noticed in 40 years.

But if Jackson is the only one with brains around here, maybe he is the only one with a sense of decency too.

It is hard to be proud of Louisiana right now. Jackson had to order Wallace’s release twice before he was finally allowed to be carried into the ambulance on Tuesday that would take him home to die in New Orleans, which he did three days later.

Wallace, 71, was no stranger to unbending authority. After his conviction for the murder of prison guard Brent Miller, Wallace was consigned to solitary along with two other Black Panthers who made up the Angola Three. Wallace continued to spend 23 hours a day in a 6’ by 9’ foot cell until June when he was diagnosed with liver cancer too advanced to be treated.

He had so little time left that Jackson was his last hope, and Wallace’s considerable experience of judges offered no encouragement. His case had bounced around the state courts for years, with ample evidence of perjured testimony, suppressed evidence and incompetent counsel. But nothing happened out of the ordinary, and Louisiana judges saw no reason to grant relief.

By 2009, his state appeals exhausted, Wallace was able to turn to the federal courts, but they were in no hurry. Not until last month did Magistrate Stephen Riedlinger reach a decision, and it was not one that Wallace can have regarded as worth waiting for. Riedlinger found no federal violation that would have altered the outcome of the trial, so every jurist to have considered the question had decided that Wallace should remain behind bars.

But Jackson, in an opinion released Tuesday, scorned Riedlinger’s recommendation, throwing out the conviction on grounds that Wallace’s constitutional rights were violated because women were excluded from the West Feliciana grand jury that issued his murder indictment in 1972.

Wallace had raised that argument with the state courts, which rejected it on grounds that state law at the time exempted women from serving on grand juries, unless they volunteered, which had never happened in West Feliciana.

But the proper standard is not where the law stood when Wallace was indicted but when his conviction became final, Jackson ruled. That was in 1993, by which time U.S. Supreme Court had ruled excluding women from juries violated the Fourteenth Amendment. That seems like such an elementary point of law that it is hard to believe even a judge elected in Louisiana could miss it.

It evidently struck Jackson as a no-brainer, enabling him to vacate the conviction without ruling on what his opinion calls “irregularities” at Wallace’s trial. So Wallace did not go to the grave exonerated. The indictment was defective, and the case record is a disquieting read, but no court has declared Wallace didn’t do the crime.

Indeed, state authorities are evidently convinced that Wallace and another member of the Angola Three, Albert Woodfox, were rightfully convicted of Miller’s murder. Woodfox, who was tried separately, had his conviction overturned by another federal judge this year, on grounds of racial bias in the selection of grand jury foremen, but he remains in prison while the state appeals. Amnesty International is asking that he at least be let out of solitary, but a sudden access of soft heartedness in the Louisiana penal system is not expected.

The third member of the Angola Three, Robert King, who was not charged in Miller’s murder, was released several years ago.

Wallace’s trial, held in 1974, was transferred to Baton Rouge, where DA Hillar Moore’s office immediately filed notice of appeal Tuesday and asked Jackson for time to think up reasons to block his order. Jackson apparently needed several seconds to consider that motion. Noting that the record proved “unequivocally” that Wallace was unconstitutionally indicted, he again ordered his release and promised to hold state officials in contempt if they didn’t do what they were told this time.

Wallace was found guilty of armed robbery in his younger days, but by Tuesday he was unable to get out of bed, so prosecutors could not have imagined he posed any threat to the public. He and Woodfox always protested their innocence in Miller’s death, and alleged they were set up because they campaigned against brutal conditions in Angola 40 years ago.

Jackson may have stepped in at the last minute, but nobody can say the state did not do its best to pile on the misery until Wallace breathed his last. It was an unedifying spectacle.

James Gill can be reached at jgill@theadvocate.com.