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Billy Wayne Cope-What would Homer Cummings do?

The presumption of regularity is a convicted felon’s worse nightmare. An accused is innocent until proven guilty – but only before trial. Once convicted, the presumption of innocence is replaced with the presumption of guilt. Reviewing courts assume that the underlying proceeding was conducted in a fair manner and in accordance with the law. The jury’s verdict is near sacrosanct and rarely disturbed on appeal or in any subsequent proceeding. The problem is that sometimes juries make mistakes. Lies are sometimes believed; the truth, likewise, is occasionally obscured or ignored. The appellate courts are not designed to correct this type of error and will rarely substitute their judgment with that of the jury’s. Unfortunately, when errors of this sort are made, the wrongfully convicted have little recourse.

The case of Billy Wayne Cope is one such example. In the early morning hours of November 29, 2001, his twelve-year-old daughter Amanda was brutally raped and murdered in their Rock Hill, South Carolina home. Two men were arrested, tried, and convicted of numerous offenses relating to the death of this child. Cope was convicted of murder, two counts of criminal sexual conduct, criminal conspiracy, and unlawful conduct towards a child. James Sanders was convicted of murder, first-degree criminal sexual conduct, and criminal conspiracy. The South Carolina appellate courts affirmed the convictions of both defendants. State v. Cope, 385 S.C. 274 (S.C. App. 2009); State v. Sanders, 388 S.C, 292 (S.C. App. 2009).

Cope became the prime and only suspect almost as soon as the crime was reported. The police were disturbed by his odd and seemingly emotionless behavior and his improbable explanation as to the cause of his daughter’s death. Cope was questioned by a number of investigators from both the police and social services. Initially, he denied any involvement. The following evening, the police questioned Cope for several hours into the early morning. In the face of continuing accusations, he repeatedly denied any involvement and offered no objection when the detectives requested a DNA sample. Despite his denials, the police continued to accuse him until finally, in an effort to clear himself, he asked the police to give him a polygraph examination. Experts would later disagree as to whether Cope passed this examination; the polygraph examiner, however told Cope he failed. After that, things went down hill very quickly for Mr. Cope. The accusations continued unabated until, according to Cope, he eventually broke down and confessed to the crime. Several more confessions, including a video taped re-enactment followed over the next couple of days.

Unfortunately for Mr. Cope, his claim that the confessions were coerced and untrue were fully litigated in the trial court and decided against him. Because the jury believed these statements, there is no question that the evidence is legally sufficient to support his conviction. Moreover, that conclusion is binding on reviewing courts and will continue to haunt him through any further post judgment proceedings. The problem is that there is a strong possibility that those statements were false and may in fact be innocent.

The most significant problem is the fact the semen found by the police on and in the body of the victim did not contain the DNA of Mr. Cope. Much to the surprise of the police, the semen was that of James Sanders who was later identified by eye witnesses, fingerprints and DNA evidence found in several unsolved sexual assaults in the surrounding area. At no time did Cope in any of his confessions tell the police that any other person was involved in these crimes. Sanders name did not become known until nine months later when his DNA was found in semen and saliva found on the body and clothes of the victim. By that time Sanders had been identified in the assaults; in he of these he had acted alone; in each case entry was made without damage to the point of entry or waking other any other occupants in the residence.

The most disturbing aspect of this case is the conduct of the South Carolina solicitors (prosecutors). The prosecutor plays a special role in a criminal trial. “He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” State v. Ferrone, 96 Conn.160 (1921).

Sadly, the prosecutors in this case divorced themselves from their duty as ministers of justice and chose instead to satisfy the public’s demand for vengeance at the expense of a man probably innocent man and to the detriment of the other who is probably guilty. The DNA tests that exonerated Cope and implicated Sanders presented a formidable obstacle to prosecuting either man. Had Cope and Sanders been tried separately, there was a substantial probability that each man would be acquitted leaving a horrific crime un-avenged. convicted. If the confessions are excluded from the equation – either disallowed by the court or not believed by the jury – Mr. Cope would probably be acquitted of the murder and sexual assault charges, and convicted of most, if not all, of the charges that were or could be filed under the general category of neglect.

Likewise, the case against Sanders was problematic. The crime scene investigators were hampered by the admitted filth and chaos of the Cope home – the residence was strewn with trash, swarming with cockroaches, piles of clothing and unwashed dishes. Because the police believed Cope-and no one else – was responsible, they did not look for evidence of an outside intruder. This inadequate investigation, coupled with Cope’s confession to the crime, might have been enough to raise a reasonable doubt as to Sander’s guilt despite the conclusiveness of the DNA evidence.

To resolve the problems presented by this unique factual scenario, the York County Solicitor came up with what has to be considered a brilliant legal maneuver – they charged Cope and Sanders with criminal conspiracy. Although there was no evidence that the paths of these two men had ever intersected before that fateful November night, they glibly asserted that such proof was not necessary. because the evidence showed that both men were guilty; they argued, it must mean that Cope and Sanders did it together. While legally correct, the precise nature of this  folie a deux has not been satisfactorily explained.

This charging decision did solve a number of problems: it allowed the prosecutors to ignore the glaring deficiencies in the police investigation including the uncomfortable suggestion that the police may have extracted a false confession from an innocent man; more importantly it allowed both men to be tried together rather than separately. The court’s decision to try these men deprived both of a fair trial as it effectively conscripted each defendant to act as a prosecutor of the other – substantially easing the burden of the county solicitors and costs of the taxpayers.

In some jurisdictions, the appellate courts would reverse the convictions of both Sanders and Cope. Solicitor Kevin Brackett’s arguments to the jury were clearly improper and designed to distract the jury from the actual facts. It was improper of him to argue that Sanders could not have committed this crime alone and could only have committed it with the assistance of Cope. While the jury did not hear the evidence of Sander’s other crimes, Solicitor Brackett knew that Sanders was quite capable of surreptitiously entering a residence leaving no trace of forced entry and committing this type of crime without waking the other occupants. Brackett also knew that Cope’s two other children were present and there was no evidence that they were awakened during the evening. Instead, he invited the jurors to speculate that these children did witness the event but were too terrified to testify – a dubious proposition considering Cope had been incarcerated for several years by the time of trial.

It is clear that Solicitor Kevin Brackett never seriously considered the possibility that Cope’s confessions were untrue. His closing statement was replete with instances of improper opinion designed to inflame the passions and prejudices of the jurors. He contemptuously dismissed the defense experts claiming they came to South Carolina from other states only to collect a paycheck. Rather than addressing the issues raised, he instead urged the jurors to apply his standards of credibility – standards not authorized by law and clearly inappropriate. He urged the jurors to apply the “Winn-Dixie” test arguing that the credibility of the defense experts should be determined by the likelihood that a juror might bump into them at a local grocery store. He referenced a rule applying to Naval officers in times of combat to improperly argue that a defense pathologist’s testimony should be ignored because he was not present when the autopsy was performed on Amanda’s body. Most egregious however, was the “McCain test” where he argued that no man would confess to the crimes Cope confessed to unless it was true. He invoked the image of Senator John McCain claiming that even after months of torture in a Vietnamese prison camp, McCain and the other prisoners’ never confessed-a claim that is not only highly improper but also patently false.

Cope’s trial was covered by NBC’s Dateline in July 2010. Although he South Carolina solicitors refused to appear on that show, shortly thereafter, they set up a website to correct the impression that Mr. Cope was “railroaded by a justice system that was both corrupt and inept.” That website provides a wealth of information including the trial transcripts and appellate briefs without which an informed decision would be difficult. While there is little doubt that Cope was railroaded, it had nothing to do with an inept judicial system. To the contrary, the solicitors in this case demonstrated enviable skills of advocacy that is prized in the legal profession. No one can seriously argue that the system is corrupt either. There can be little doubt that Solicitor Brackett sincerely believes that Cope and Sanders committed these crimes together; more likely, his failure was in allowing his beliefs to obscure the facts and used his considerable talents to convince the jurors to do likewise.

Most people have never heard the name Homer Cummings. For many years, Mr. Cummings was a distinguished lawyer in the state of Connecticut. He was the founding partner of the Stamford law firm, Cummings & Lockwood, which still exists and bears his name. He was active in politics throughout his life and, from 1933 to 1939, served as attorney general under President Franklin D. Roosevelt. From 1914 to 1924, Mr. Cummings served as the State’s Attorney for Fairfield County. Although he tried and convicted many serious felonies during that time, he is most remembered for a case he did not prosecute.

Harold Israel was arrested for killing a priest on a Bridgeport street corner in February 1924. Father Hubert Dahme was a popular Catholic priest and the community was outraged by the crime. The police conducted an intense search for the perpetrator and a week later arrested Israel. He met the general description of the gunman and, at the time of his arrest, possessed a revolver of the same caliber as the weapon that killed Father Dahme. The case against him was made stronger when seven eyewitnesses identified him as the gunman. Confronted with this evidence, the weak-minded Israel confessed to the crime. He later recanted his confession and maintained his innocence.

Faced with this mountain of evidence, most defense lawyers would have advised Israel to plead guilty in the hopes of avoiding the death penalty. Most juries do not believe evidence that calls into question the truthfulness of a confession and conclude, “he would not have confessed if he didn’t do it.” Most prosecutors agree that false confessions do occur, but argue that they are the exception rather than the rule and usually do not take such claims seriously. Homer Cummings was different. Despite this overwhelming body of evidence – evidence that most prosecutors would accept at face value – Cummings conducted an independent investigation and concluded that Israel was innocent of the crime. In a decision that surprised and angered the local police, Cummings refused to prosecute the case claiming that Israel’s confession was coerced from an exhausted and overwhelmed person of diminished capacity. In a 90-minute presentation to the court he discredited the all of the evidence that the police has amassed against Israel. At the time, Cummings was criticized for his action; today, he serves a role model for prosecutors as a reminder that their duty is ensure that impartial justice is meted out to the guilty as well as the innocent.15TOAu.AuSt.6.jpeg

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