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Down by Law

Facts aren’t always enough to prove a man’s innocence

By Margo Pierce · December 17th, 2008 · News

If you witness a killing when you’re a child, it’s bound to affect your reflexes. By age 27, if you hear a shooting and encounter a body lying facedown in front of an apartment building at midnight, you’re unlikely to stay and watch.

Maybe if Bryant Gaines had done just that, instead of running for his life, he might not be in prison right now. But he knew better than to stay out in the open after hearing gunshots.

“I witnessed my first murder at the age of 6, so it’s not new,” he says. “In the inner city it happens, so I’ve been exposed to it. Somebody said, ‘You don’t want to be the last person at a crime scene.’ That’s the honest-to-goodness truth.”

Truth, however, isn’t always admissible in court.

In Ohio, after a person is convicted of a crime, it’s almost impossible to get a new trial — even if a new witness comes forward and even if the prosecution’s star witness recants his testimony.

Gaines had never spent a day in prison before hearing those gunshots in 2003; his only conviction was a minor drug possession charge that earned him probation. But now he’s serving 15 years to life for a murder that multiple witnesses say he didn’t commit.

Instead of relying on his next parole hearing to try to gain his release — that’s scheduled for 2021 — he’s working with the Ohio Innocence Project in an attempt to get a new trial.

Gaines has always maintained his innocence, and two witnesses at his trial backed him up. But the Innocence Project has found:

• The only person who testified that he saw Gaines fire the gun now admits he wasn’t telling the truth.

• Coroner’s testimony at the murder trial proves Gaines didn’t shoot anyone.

• A new witness, afraid to come forward five years ago, now says he wants to tell what he saw the night of the killing — that Gaines didn’t do it.

• When prosecutors met the new witness, instead of listening to his story they tried to arrest him on an old traffic warrant.

Gaines’ best hope to prove his innocence comes Jan. 9 in a hearing before Hamilton County Common Pleas Judge William Mallory. Gaines, serving his sentence in the Warren County Correctional Institution, won’t be allowed to attend.

It began with a barbeque

During a prison interview with CityBeat, Gaines goes back to the night of the murder, Sept. 7, 2003.

It was a Sunday evening after a barbeque at a friend’s apartment building in Avondale. The balmy day was the perfect ending to the weekend, a good chance to hang out with a friend before he headed back to work the next day.

As the owner of his own business, Gaines was facing another week in the life of an entrepreneur in a neighborhood where many self-starters are drug dealers. His company, New Beginnings Investments, helped homeowners with bad credit who were facing foreclosure.

Just before midnight Gaines went to the apartment of Janara Tucker, the hostess of the barbeque, to find his friend, Buddy Ralls. Gaines stood in the doorway of Tucker’s apartment; she didn’t want to let him in. A fight had started at her party and continued throughout the day, so she was being cautious.

That’s when the gunfire started outside.

“I don’t know what’s gonna happen when I leave this building,” Gaines says. “I don’t know who’s out there, who’s shooting who, who’s doing what. I got to think about my safety. I’ve got to look out for my best interest. I’ve got to live. I’ve got two kids I got to take care of.”

Outside the building Eugene Bradshaw, Gaines’ cousin, was shot five times at close range. He died on the lawn in front of Tucker’s apartment.

What exactly happened, who was involved and how it all started is documented in Gaines’ murder trial and in the confession of Lonnell Dickey, who pleaded guilty to shooting Bradshaw and is serving a 25year sentence for manslaughter. Witnesses and forensic evidence agree that a second man also shot Bradshaw.

Dickey initially agreed to talk to CityBeat about the killing and was in the process of scheduling a meeting date when he abruptly changed his mind and refused to meet.

Gaines says he didn’t kill his cousin, but he was found guilty of being the second shooter. He then lost his appeal to that conviction.

Now he’s getting help from the Ohio Innocence Project, which operates within the College of Law at the University of Cincinnati and “seeks to identify and assist those prison inmates who claim to be actually innocent of the crimes for which they were convicted.” Since its inception in 2003, the organization has received more than 2,000 requests for help for inmates across the state but has only taken on about 30 cases (see “Trial and Error,” issue of Nov. 21, 2002).

Each of the 800 requests received annually is subject to an initial review by law students who serve as fellows for the nonprofit group. If that first investigation turns up evidence of innocence, the Innocence Project makes an agreement with the inmate: If any evidence of guilt is found, the cost-free services they offer end immediately.

A family member, friend or the inmate himself typically makes the request for assistance. In 2007 Judy Mincy, Gaines’ mother, asked the Innocence Project to look into her son’s conviction. She said the only eyewitness who identified Gaines as a shooter had recanted his testimony, and she found a new witness who says Gaines didn’t do it.

Knowing that a new witness is one of the few ways a motion for a new trial might be considered in the state of Ohio, the students started digging into the case.

Mincy initially agreed to participate in an interview with CityBeat but changed her mind.

The UC students interviewed the new witness, reviewed trial testimony and investigated the validity of an affidavit by the witness saying he lied on the stand.

“The more I looked into (Gaines’) case, the more absolutely obvious it became to me that he was innocent,” says Karla Hall, an attorney with the Innocence Project. “At this point all of the witnesses agree that Bryant Gaines had nothing to do with it. The man who admitted to the murder has said all along that Bryant Gaines had nothing to do with it.

“Even the person who testified against him at the criminal trial — the one witness who said that Bryant Gaines was one of the shooters — has now come to know, through experiences he’s had in prison, that Bryant not only was not one of the shooters but had nothing to do with the shooting from the beginning.”

A murder and a questionable conviction

The key witness is Brandon Mincy, younger brother of the murder victim, Eugene Bradshaw; he is also the nephew of Judy Mincy and cousin of Bryant Gaines.

Hall believes Brandon Mincy’s testimony was the only reason Gaines was convicted. There was no forensic evidence at the scene to tie him to the crime, nor did he have a motive, she says.

Brandon Mincy, 17 years old at the time of the murder, idolized his big brother, who provided financial support for the family and was a powerful presence in his life.

According to Brandon Mincy’s testimony at Gaines’ trial, he was talking with his brother at 11:50 p.m., about 10 minutes before Bradshaw was shot to death, and saw Gaines go into the apartment building next door. Bradshaw suddenly interrupted the conversation and told his younger brother to stay put.

Bradshaw walked across the lawn to the apartment building Gaines had entered.

Ignoring his brother’s instructions, Brandon started to move toward the building to get a better look.

He saw two men whom he didn’t know talking to his brother. One man was standing on the porch, the other man a few steps down from the porch. The man on the steps was Lonnell Dickey, and the man on the porch was his brother, Chucky Jackson.

Brandon testified that Dickey pulled out a gun, pointed it at Bradshaw’s torso and fired twice. Bradshaw raised his left arm to cover his wounds as turned away from the men, Brandon said, and then Gaines walked out of the apartment building, fired a third shot at Bradshaw and fled the scene.

Bradshaw stumbled backwards, turned and fell facedown on the lawn. Jackson and Dickey followed Bradshaw. Dickey fired two more shots into the back of his head. One of the bullets severed his spinal chord, the fatal shot.

“(Dickey) said something smart like, ‘I shot him in the head,’ just like he was bragging, like he didn’t even care,” Brandon testified. “Then they run off. But they wasn’t even running fast, they was just jogging.”

The shocked, terrified teen started screaming for help and then ran away, looking for cover in case the shooters came back.

‘I did not see Mr. Gaines shoot’

The Innocence Project identified several problems with this testimony that were never raised in Gaines’ trial.

The most glaring inconsistency is that the testimony of two other witnesses placed Gaines inside the apartment building during the shooting. But Brandon’s version of events was taken as fact, never challenged.

The first witness was Janara Tucker. During her barbeque, a fight had broken out between Dickey and another guest. Bradshaw was drawn into the dispute and continued to argue with Dickey throughout the day.

Tucker didn’t witness these angry exchanges, but she heard about the fighting, so she stayed in her locked apartment that night. When Gaines came to her door looking for his friend Ralls, she wouldn’t let him in.

Tucker, who was dating Ralls, testified that he was “half asleep” on her couch, so she had to wake him up.
When the shooting began outside, Tucker testified, Gaines “was in my doorway. … He was standing in my doorway, but he was not in my apartment.”

Ralls confirmed Tucker’s account.

“He was standing exactly inside the doorway, right in the doorway,” he testified.

In addition, the coroner’s testimony proved that Gaines didn’t participate in the shooting.

In their response to the state’s motion to dismiss the request for a new trial, Hall and her team explain how the state’s own witness proves that point: “According to Chief Deputy Coroner and Director of Forensic Pathology Robert Pfalzgraf … the two shots that were fired in quick succession that hit Bradshaw in the abdomen came from a .45 caliber firearm. … However, even according to Brandon Mincy’s trial testimony, the two quick shots that hit Bradshaw before he ‘folded up’ and ‘moved his left arm in front of his abdomen’ occurred before (Gaines) exited the building.

“All parties agree, and Lonnell Dickey admits, that Dickey used the .38 special that fired the fatal shot into Bradshaw’s head. At trial, (Gaines) was convicted of being the second shooter — the shooter who used the .45 caliber weapon. However, according to the state’s own witnesses, at least two shots came from the .45 caliber before (Gaines) exited the building. Therefore, according to the state’s own witnesses, (Gaines) could not have been holding the .45 caliber firearm.”

None of this matters five years after conviction and sentencing, according to Hall.

“In our criminal justice system, you get one good try at uncovering the truth, and that’s at trial,” she says. “If, for whatever reason, you’re not able to do that, whatever’s in that trial record is … deemed what happened. … That’s their one shot. Once that shot’s over, the system’s not set up to correct its own mistakes.”

Nor does it have a mechanism for recognizing the impact of a witness recanting his original testimony, another critical point in the Gaines case.

The trial transcripts show that there was no forensic evidence tying Gaines to the murder: no fingerprint on the gun, no bloody footprint. No motive was ever given. Witnesses placed Gaines in a different location at the time of the shooting.

So it seemed to the Innocence Project students that the conviction hinged on the testimony of a distraught teenager who has since said he lied on the stand.

“(Brandon Mincy) recanted prior to the Ohio Innocence Project’s involvement in the case, but he did a very brief affidavit for us,” Hall says.

That affidavit was included in the request for a new trial: “I am the individual who testified at the murder trial of Bryant Ricardo Gaines, case number B0308628. My testimony at that time was inaccurate and I did not see Mr. Gaines shoot Eugene Bradshaw. At the time of my testimony I was upset and angry at Mr. Gaines for not helping my brother Eugene Bradshaw, as opposed to running away.”

‘A very skeptical eye’

Hall says she visited Brandon in prison on several occasions, and he told her the whole story.

On unrelated charges, Brandon was sent to Lebanon Correctional Institution, the same penitentiary where Dickey is serving his sentence for manslaughter. They met first at the prison laundry and agreed to talk later. Hall recounts what Dickey told Brandon.

“Originally (Dickey) did try to apologize and say, ‘Sorry I shot your brother. I did it because I thought, if I didn’t shoot him, he was going to shoot me that day or some other time,’ ” Hall says. “They ended up getting into a fight and as the fight progressed it became, ‘I’m glad my brother and me killed your brother.’

“That made Brandon start to reevaluate in his mind: What did he see? What happened that night? The whole thing happened in less than a minute — he’s young, he’s traumatized, he’s trying to remember exactly what happened. He felt like he was pressured at the time of the investigation to say that Bryant Gaines did it. At the time he wasn’t sure if (Gaines) didn’t do it. It was easier to just go with, ‘Yeah, he did it.’ ”

With the recantation, there’s no proof that Gaines participated in the murder. But that doesn’t prove he’s innocent in the eyes of the criminal justice system.

“The problem with our system is that once you’ve had that trial, unless there’s some legal issue where the judge went wrong in the trial, you don’t get any other opportunity to offer testimony,” Hall says.

The only option left at that point is to make a motion for a new trial. Those are very rarely granted, she says.

“Lots of people in prison have time to try to make up stories and make up motions for a new trial, and the court gets used to looking at motions for a new trial with a very skeptical eye,” she says. “The likelihood of getting a motion for a new trial granted is very, very, very, very slim.”

The state of Ohio has a narrow definition of the circumstances under while a new trial will be granted. For Gaines, the only way a judge will consider such a motion is to hear new testimony that would likely have affected the outcome of the original trail, and that’s what the Innocence Project says they have.

Intimidating the witness

In 2003 Gregory Carter was living across the street from the Avondale apartment building in question with his wife and two young children. That September evening he was getting ready to go out and was walking from his house to his car when he saw Bradshaw heading across the lawn. He saw the men talking, the shooting and everything that happened afterward.

The police didn’t approach Carter that night to ask any questions, as they did with other people on the street. Fearing for the safety of his family, he didn’t volunteer any information.

He kept quiet. He went so far as to lie to his wife, saying he didn’t see anything.

But in 2007, while Carter was helping Buddy Ralls do some cleaning in the building where Ralls was opening a new restaurant, Judy Mincy came to find him. In his affidavit, Carter says he doesn’t know how Mincy found him or how she figured out he witnessed the shooting, but she asked him to come forward to help prove her son’s innocence.

Moved by her tearful plea, Carter agreed to tell the Innocence Project what he knew. He also agreed to talk to the prosecutors in the case. He participated in a polygraph test, which he passed.

In his affidavit, Carter says Gaines wasn’t present during the confrontation or the shooting. He says he saw Gaines leave the building with Ralls after the gunfire stopped, which is consistent with what Gaines and the other two witnesses said.

With a solid new eyewitness account combined with Brandon Mincy’s recantation, the Innocence Project was convinced of Gaines’ innocence, Hall says.

In June the Innocence Project put together everything it had and met with the Hamilton County Prosecutor’s office.

“We were hoping that we could bring our information to the prosecution and they could look at it with an objective eye,” Hall says. “We originally went to them and said, ‘Here’s the information we have.’ We even gave them a draft of the motion for a new trial that we were going to file, showing all of the information, and asked them to just look into it. We asked them to interview Mr. Carter. With his permission, we offered for him to take a polygraph that they administered with no involvement from us.

“They said they’d look into it, then it never happened. We called the prosecutor. They said they reviewed the transcript and they didn’t feel like any additional investigation was necessary. If we wanted to file our motion, we should file our motion.”

After the Innocence Project filed its motion for a retrial, prosecutors decided they wanted to interview Carter after all. Hall says the interview didn’t start out well.

“They had Mr. Carter come down to the station, and they immediately tried to arrest him on a three-year-old traffic citation,” she says. “He came away from that with a very unpleasant taste in his mouth, the police and the prosecutors saying, ‘No one in these neighborhoods comes forward, so we only have this information to work with that we can dig up.’ And when he shows up to answer any questions they want to ask him … they try to arrest him.

“Even after that … he stayed there. He spoke openly about everything he knew for a substantial period of time.”

‘Time gets distorted’

In a motion to dismiss the Innocence Project’s motion for a new trial, prosecutors try to discredit Carter, picking at his memory of the time between the shooting and seeing Gaines and Ralls leave the apartment building.

“Carter says, ‘Approximately 10 minutes later … I saw (Ralls) and (Gaines) exit from the apartment building,’ ” the prosecutors’ motion states. “By all accounts the shooting occurred after midnight. … The victim’s father stated that he heard the shots being fired at approximately 12:05 a.m. Janara Tucker testified that her sister used her cell phone to call 911 immediately afterward. A police incident report states that the shooting occurred from 12:03 to 12:04 a.m. and that it was reported at 12:05 a.m. Det. Landesberg testified that the police arrived within two minutes of the 911 call.

“If Mr. Carter’s time frame is examined, that would mean Bryant Gaines walked out of the apartment building while the police were securing the scene and the paramedics were attending to Gene Bradshaw.”

The state also dismisses the initial polygraph test, calling it “inadmissible” because it “was not stipulated to or adopted by the state in any fashion. The cursory ‘results’ cannot be considered by this court.”

Hall says all of the efforts to dismiss Carter’s testimony are spurious, but she focuses on the time discrepancy.

“The perception of time gets distorted during a traumatic event,” Hall says.

When CityBeat requested an interview, Carter declined.

The next time Carter will be formally asked about what he saw will be when he and his ex-wife are called to testify Jan. 9 at an evidentiary hearing before Judge Mallory.

In response to the request for a new trial, Mallory has agreed to review the trial transcript and hear from the Carters. The Innocence Project is pleased that the request wasn’t dismissed out of hand, but Hall was hoping for more.

“I would prefer it if he would let us call any witnesses we want,” she says. “I would feel much more optimistic if that were the case, because I think if he saw Brandon Mincy and talked to him face to face to ask his own questions … he would understand that Brandon made a mistake and he’s trying to get to the truth as well.

“If the judge would speak with Brandon Mincy face-to-face, he would understand that this is not a person who’s trying to help Bryant Gaines. This is a person who is still very angry about the murder of his brother and wants to see the guilty people charged with that murder.”

‘When I get out’

In the four-plus years Gaines has been in prison, he’s had to face the reality of being convicted of a crime he didn’t commit. He says he’s now hopeful for the first time.

“I have confidence in Ms. Hall, the work she’s doing,” Gaines says. “I would hope a judge wouldn’t be blind to the evidence. It’s like a breath of fresh air, for real. … She’s been coming to see me, giving me a number to call if I need to talk to her, sending me letters and information — that’s a blessing right there.”

Gaines says he regularly counts his blessings and has plans for what he’ll do when he gets out of prison.

“Real estate,” he says, grinning. “But not just real estate. Also when I get out I plan to help the less fortunate because … there a lot of people (in prison) who don’t have nobody to care for them. They don’t get visits, they don’t get money sent.

“When I left the streets I had time to sit in here and reflect on my life, everything that I was in on the streets. There’s a lot of people out there that need help. In the community there’s a lot of people on drugs, there’s a lot of people homeless — I’m talking young people, elderly people. I got help in here, so I’m sure going to make it a priority when I get out to help others. I got to do that. Teach my kids to help others — that’s another priority.”

For that to happen, Gaines is going to need a new trial. The next step is the hearing Jan. 9.



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