The following story was reported by the New England Center for Investigative Reporting and WBUR, and published here in collaboration with The Huffington Post. The original story corresponds with a five-part radio series on WBUR, listen here.
Darrell “Diamond” Jones has been in a Massachusetts prison for 30 years for a murder he says he didn’t commit. Now the 48-year-old convict, his hair turned salt-and-pepper over the decades, is hoping that a snippet of grainy video from an old TV sitcom will help set him free.
In a new court filing, Jones says that police tampered with a videotaped interview of a key witness shown at his 1986 trial to remove evidence that could prove his innocence. As the video played in the courtroom, a brief segment of the “The Phil Silvers Show,” a 1950s send-up of Army life, suddenly appeared in the middle of the interview.
Police attributed the bizarre non sequitur to an honest pre-trial mistake handling the tape. But forensic specialists and lawyers working for Jones say technology not available at the time of the trial shows that explanation can’t be correct and as much as 136 seconds was cut out, suggesting a deliberate “crash edit” that removed witness statements favorable to the defense.
“Why would you need to cut the tape up? If you were an honest cop, why are you taking a tape, and chopping up the parts you want?” Jones asked in a recent interview. “The police set me up.”
The videotape allegations are part of a motion filed in October to re-open the case in Plymouth County Superior Court, where Jones was found guilty of the 1985 murder of alleged Cuban cocaine dealer Guillermo Rodriguez in Brockton, about 25 miles south of Boston. Jones, then 19 years old, was sentenced to life without parole.
Prosecutors provided no motive and offered no physical evidence linking him to the crime. None of the eyewitnesses testified in court that they were sure Jones was the shooter, although one said he looked similar to the killer and at least three had picked him out earlier in photo line-ups. An all-white jury convicted the young black father after three days of deliberations.
Interviews, newly surfaced records and forensic analysis portray a case tinted by a key witness’s statement favoring the defense that didn’t make it to trial, alleged racist comments by jurors, and police who ignored other suspects and coaxed witnesses to pick Jones in photo lineups. His court-appointed attorney presented only a brief defense, and admitted later that he wasn’t sure he “was functioning with any sense at all” during the time of the trial, the New England Center for Investigative Reporting and WBUR found. The defense attorney, Kenneth Elias, died in 2013.
More than 300 exonerations based on genetic evidence since 1989 have shed new light on how often the criminal justice system sends innocent people to jail in the U.S. In many of these cases, the unique traits of convicts’ DNA failed to match the forensic evidence — often blood or hair from a crime scene — that originally linked them to homicides.
The Jones case is part of a growing effort to prove innocence based on non-DNA evidence, using technology unavailable at the time of conviction or new evidence casting doubt on eyewitness accounts. One-hundred-and-19 people were exonerated without DNA evidence in 2015, more than double the level of 2011, according to the latest data from a registry kept by the University of Michigan Law School. Misconduct by police or prosecutors and inadequate legal defense contributed to about half of all exonerations in the registry since 1989.
In Massachusetts last year, the state Supreme Judicial Court created a 12-member commission to minimize risks that faulty eyewitness testimony — caused by problematic memory or suggestive, leading-the-witness-type police work — will send innocent people to jail. Faulty eyewitness testimony helped convict 72 percent of those proven innocent with the help of DNA since 1989, according to the New York-based Innocence Project.
Richard Sproules, then a Brockton police captain who supervised detectives working the Jones case, said he questions whether justice was served after hearing about the tape and reviewing the case with a member of the convict’s legal team.
Sproules pleaded guilty in 1990 to stealing drugs seized as evidence by the department, following several investigations into drug-related corruption in the Brockton police force. Sproules said in a recent interview that he was an “addict and alcoholic in full tilt,” during the five years before he was caught in 1989, which included the period when police investigated and testified against Jones.
Sproules, who served 28 months in state prison, said he is speaking out because he knows first hand what it is like to be incarcerated. He said he is surprised that the District Attorney’s Office decided to prosecute in light of what he now sees as a weak case.
“What evidence is there that he did it?” asked Sproules, 71. The court should “take a hard look at allowing him a hearing” to reopen the case, he says.
Persuading the court to take another look will be an “uphill battle,” according to Lisa Kavanaugh, who represents Jones and is director of the Innocence Program, part of the Massachusetts public defenders’ office. Of more than 600 inmates who have applied for help since her program began in 2010, Kavanaugh and other attorneys have filed new-trial motions in 21 cases — and only seven of them have been granted.
Kavanaugh said that the new evidence in the Jones case will help. The videotape shows a witness, Terie Lynn Starks, being interviewed by police prior to the trial and identifying Jones as the shooter — which she didn’t do while on the witness stand in court.
The videotape “was of critical importance to the jury at trial,” said Kavanaugh. “Now that we’ve shown that the police tampered with that evidence, it changes everything.”
Starks — under arrest at the time on prostitution-related charges — picked a picture of Jones out of a photo line-up while in custody. The police told her before she looked at the photos that she “could spend a long time in prison,” but that “things would go better for her if she cooperated,” according to a sworn affidavit from a lawyer who interviewed her on behalf of Jones.
The Brockton Police department declined to comment for this story.
The Jones conviction “has repeatedly been affirmed on appeal,” said Beth Stone, a spokeswoman for the Plymouth County District Attorney’s office, which prosecuted the case. She said the prosecutors will respond to the new motion, which follows an unsuccessful appeal and the denial of two other moves to re-open the case in 1992 and 2000.
The right person was convicted, according to one of the police investigators in the case, now retired. “There is no doubt in my mind,” that Jones is guilty, said Fotis Colocousis, taking a break from mowing his lawn to answer questions. He said he and his colleagues used straightforward police work, following leads that took them to Jones.
Sitting on a flimsy chair in the visitor’s room at a maximum-security prison about an hour from Boston, Jones urged people to read trial transcripts and police records, many of which his legal moves have helped bring to light. He says he doesn’t expect anyone to believe he’s innocent without considering all the evidence.
After one of his sons was murdered, he was barred from attending the 2008 funeral. While in prison, he launched a program to help troubled youths and married and separated from an activist who helped him with that campaign and with his legal efforts.
“I just want the truth out,” he said. “I’ve already lost so much.”
The shooting
Rodriguez was fatally shot in the parking lot of a now-shuttered D’Angelo’s sandwich shop across the street from Pete & Mary’s bar, known by Brockton police and former patrons as a seedy hangout popular with cocaine dealers and their customers. Rodriguez — six-feet-one, 210 pounds — lay on the ground pleading for help before the ambulance whisked him away. His wallet and a gold chain were later found at the scene, suggesting robbery wasn’t the motive.
Prosecutor Kevan Cunningham told the court that Jones left Pete & Mary’s to buy a steak-and-cheese sub at D’Angelo’s with a woman named Brigite Strothers. He walked back into the bar and minutes later, came out onto the street pushing Rodriguez ahead of him and then shot him dead, Cunningham said.
According to the state’s case, Jones took off on foot, followed by two eyewitnesses who had been eating sandwiches in their car when they saw the attack. Prosecutors said he lost them a few blocks away after he jumped a fence, and discarded a .32 caliber automatic in a nearby bar, before returning to Pete & Mary’s. Police later were able to link the gun to the bullet that killed Rodriguez.
But there were no fingerprints on the gun. Prosecutors produced no evidence that it belonged to Jones.
Strothers — who still lives only blocks from the crime scene — told NECIR that police pressed her to say Jones was the killer, which she refused to do. She says she thinks he was set up, although she doesn’t know why.
The police “threatened me,” Strothers said. “They kept coming to my house. They kept telling me I remembered something I didn’t remember. The streets talk in those days. I never heard people say he [Jones] did it.” At the trial, Strothers testified she drove away from the bar and the murder scene before the shooting happened.
Jones agrees he bought a sub and went back to the bar to eat it. He says he was sitting with friends when police arrived at the bar and told them about the shooting. The defense presented three witnesses who testified Jones was in the bar eating a sandwich when Rodriguez was shot.
One of them, Evelyn Anderson, then a 37-year-old Boston Public School reading specialist, said she is still horrified that nobody believed her. “How can you lock this boy up when he was in the bar with us?” said Anderson. “I think that boy has spent a lot of years in jail for something he didn’t do.”
Not everything Anderson said at trial helped the defendant. While Jones says that to this day he doesn’t know what Rodriguez looked like, Anderson testified that she saw the two of them talking in the bar earlier that night.
Jones and the victim
Jones has never claimed to be a saint. He racked up four juvenile arrests for breaking and entering, stealing and assault during an 18-month period before his 18th birthday. After he shoved a school security guard, he was kicked out of Boston’s English High School in the 10th grade, Jones said.
As an adult, he also had a misdemeanor conviction for stealing a wallet in Brockton several weeks before Rodriguez was shot, for which he received a $50 fine.
On the night Rodriguez died, he says he stepped out on his pregnant girlfriend and their 15-month-old son at home in Boston and hopped a bus to meet other girls in Brockton, where he had a group of friends and bartenders didn’t ask his age. He says his nickname, “Diamond,” came from his ability to attract girls.
Despite his wandering, Jones said he had been trying to do right by his young family. He had earned his high school equivalency diploma and was working part time as a security guard.
Cheryl Frederick, his Boston girlfriend, told NECIR that she knew Jones was cheating on her but put up with it because he helped out with their son and was “really in love” with her. She said her life fell apart after he was arrested and she never believed Jones was guilty. “It took my breath away,” said Frederick, now 49. “It seems like I still can’t get my breath back.”
Rodriguez, a Cuban national with Miami ties, was 43 years old, married with an infant daughter. Described as a laborer on his death certificate, he was killed while facing charges of possessing and distributing cocaine.
Rodriguez’s widow Claridad is 61 and now lives in Miami. Reached by phone, she said in Spanish that she believed Jones was the killer before a family member hung up the phone. Her daughter Julia, who was 11 months old when her father was killed, said talking about his case was too painful. “That story has been closed for 30 years,” she said.
Tunnel vision?
Police records show Jones was quickly flagged as the main suspect.
On the night of the murder, Colocousis writes that he showed up at D’Angelo’s responding to a reported stabbing. Instead, he found Rodriguez on a stretcher with a bullet wound. An officer handed him a slug that fell out when Rodriguez was rolled over.
Police quickly zeroed in on Jones. At 4:30 p.m. the following day, Colocousis wrote in a police report, he visited an informant named Robert Allen who told him the shooter was someone known as Diamond. The detective’s report described Jones as a tall 18-year-old who “carries a .38” gun and was “supposedly wanted” under outstanding arrest warrants in Boston.
Colocousis wrote that another officer heard from an unnamed source that Diamond was Darrell Jones — described as “dangerous and very clever,” supplying a group called the “Commandos” with weapons.
Jones said in interviews that he’s amazed by what he’s read in these police reports, which he first saw a few years ago. He says that he was not a gun supplier, had no outstanding arrest warrants and wouldn’t have needed to lift a wallet or ride buses if he were a sophisticated criminal. Jones said he never heard of the Commandos, which may have been a small local gang. His criminal record — available in the prosecutorial file — shows no history of weapons possession or outstanding criminal warrants at the time of the killing.
The Innocence Program says Allen has told its legal team that he only shared rumors he’d heard on the street and that the only thing accurate about the report was that he told police they should be looking for “a guy named ‘Diamond.’”
The informant interviews apparently helped turn the spotlight on Jones. On the same day police spoke to Allen, a memo from Detective Donald LaGarde described Jones as the “prime suspect” and LaGarde, now deceased, showed a witness who had been near the crime scene a photo line-up including Jones.
Other leads appear to have been ignored. Detective Joe Smith, who was assigned to the homicide investigation three days after the shooting, wrote in a police report that a Brockton bus driver named Steven Betts “has been mentioned several times as possibly being the one that did the shooting.” He interviewed a former girlfriend of Betts, who said he “might have been involved in the shooting,” records show.
Betts — who had many run-ins with the law — died in 2003 of liver failure and alcohol abuse, according to his death certificate and criminal history report. Available police records don’t show that anyone interviewed Betts about the Rodriguez killing.
His brother Keith Betts, found in October at his Brockton home with a tidy lawn covered with Halloween decorations, said he had never heard before that his brother was a suspect or was questioned about the shooting. “I would have known,” he said.
James Trainum, a former Washington, DC-based homicide investigator, says the Jones case shows signs of “tunnel vision,” in which police decide a person is guilty and then filter out inputs that don’t support their conclusion.
“The odds are… they honestly believed at one point he was the right suspect,” said Trainum, who now specializes in reviewing alleged wrongful convictions. “It was just sloppy investigation.”
Former detective Smith, reached by phone, declined to discuss the case. “What’s on paper is what happened,” he said.
Six days after the shooting, Jones said he heard that police were asking about him, so he called them and told them he was coming in to talk. Police records don’t show any calls from him that night. He said he stopped for a meeting with his father at Pete & Mary’s, where police picked him up.
Jones said he still wasn’t too worried and believed he would soon be let go. “I thought it was humorous,” he said. “I was just looking at it like a joke.”
But things turned serious quickly. Weeks later, Jones was charged with murder and said he was unable to pay bail, initially set at $49,000, and spent ten months in jail waiting to face a jury.
Problematic defense
On the first day of trial, defense attorney Kenneth Elias — a tall man with a booming voice and unkempt hair — told the jury not to draw any conclusions from the unconventional seating he’d arranged for Jones. Instead of sitting next to Elias, as is customary, the defendant had a chair in the prisoner’s dock behind him — about 10 feet behind, according to Jones.
“I like to be alone. I don’t want to be distracted,” Elias told the court. “A defendant sometimes gets excited by what’s going on by testimony.”
Separation prevents a defendant from instructing his attorney immediately as evidence is presented and could prejudice the jury against him by setting him apart, according to legal experts interviewed for this story.
“Any rational person practicing law today would recognize that that is problematic,” said William Fitzpatrick, president of the Virginia-based National District Attorneys Association. “A lawyer has to be able to communicate with his or her client.”
Jones was surprised two days into the trial, when Elias notified him that he had represented three police officers testifying for the prosecution — including Colocousis, Smith and LaGarde. The judge asked Jones whether he wanted another attorney, and he declined. Today he says he regrets that decision, didn’t understand his rights and was worried a new lawyer would have been costly to his family.
The ties between Elias and the police could have inhibited the defense, according to Kevin Reddington, an attorney who represented a Brockton officer during one of the investigations into missing cocaine. “The problem is, even if it is a past client, you still know potential secrets. You might know things about them,” Reddington said. “Instead of having undivided loyalty you have a conflict of interest.”
Before his 2013 death, Elias said that his legal practice was in disarray while he defended Jones because he had too many clients. While he represented Jones, he was also facing allegations before the state bar association that he had moved a client’s money into his own account, which ultimately led to a seven-year suspension from practicing law.
His work diary showed that most days he had as many as three court appearances and six or seven meetings. “I had no idea what was going on,” he admitted in 1993 to the Board of Bar Overseers. In most cases, he told the board he “was just showing up” for court appearances. “I couldn’t do a very good job of it, and I didn’t.”
Elias billed 14 hours of investigative work in the Jones case. Six trial witnesses — including Anderson, who testified for the defense — told NECIR or the Innocence Program that Elias didn’t interview them before the trial. Jones said Elias met with him for two-and-a-half hours in the ten months he was in jail awaiting trial.
Spending so little time investigating and failing to preview witnesses represent major weaknesses, according to Mike Hussey, president of the Massachusetts Association of Criminal Defense Lawyers.
“Any time you have that kind of situation, one has to seriously consider whether a tragic miscarriage of justice has occurred,” he said.
Elias appears to have missed another opportunity presented by the case records — the inconsistencies between eyewitness testimony and the size of the man they convicted. At least four witnesses, either in depositions, court or grand jury testimony, described a shooter who was noticeably shorter — as much as a foot shorter — than Rodriguez. Jones, at six feet, is only an inch shorter than the height listed for the victim in his autopsy.
“He should have told me to stand up,” says Jones.
Elias “was completely and utterly out to lunch during this case,” Kavanaugh says.
Doctored tape?
Terie Lynn Starks was sitting in a Cadillac Eldorado outside D’Angelo’s with a group of friends on the night of the shooting.
Brockton police arrested her about two weeks later on outstanding warrants and quickly expressed interest in what she had seen in the parking lot.
In a videotaped police interview shown at the trial, Starks sat between officers Smith and LaGarde. She told police she was in the passenger seat after drinking a couple of rum and cokes. The music was on and the windows were rolled up when she saw a “smaller guy” pushing a “taller guy” across the street, she said. “When they got to the sidewalk, I saw a gun.”
The interview was interrupted when the color video suddenly cut to a black-and-white scene of a singing soldier from an episode of the old Silvers TV show and then returned to Starks and the police. At the trial, Smith testified that the cut-away happened when he accidentally hit “record” instead of “play” on the VCR while running the tape for Elias before the trial.
Elias objected to the introduction of the tape for reasons other than the interruption — and was overruled. He didn’t attach much significance to the break. “You mean you recorded something else over that tape while I was there?” he asked Smith in the courtroom before moving on. “It’s probably immaterial; I don’t even remember it.”
Jones and his attorneys say new, digital analysis of the tape by experts they hired points to the conclusion that the tape was altered on purpose to remove statements by Starks favorable to the defense. The new evidence “strongly suggests that the police deliberately performed a crash edit” of the interview by recording from the master tape to a copy tape while removing content, according to the motion to reopen the case.
Smith’s explanation for the interruption is “not possible” because police must have re-recorded the interview onto a tape that already had the TV show on it, according to an affidavit supporting Jones’ motion from Jeff Spivack, owner of a Florida multimedia firm that specializes in examining recordings.
The videotape shown in court wasn’t even the first copy, but at least “third generation” – or a copy of a copy, Spivack said. The missing testimony could have been as brief as the 20 or so seconds that police estimated, but it also could have been as much as two minutes and 16 seconds, according to the second recording expert. Jones’ motion argues, “the forensic analysis is consistent with a scenario in which someone erased a segment of the tape and then tried to conceal or minimize his conduct.”
Jones believes what was carved out of the tape at the very least conflicts with the prosecutor’s account of events. According to a memo from LaGarde released by Brockton police in 2011, Starks told police during the videotaped interview that the shooter and the victim had not approached the scene of the murder from the front door of Pete & Mary’s — as described by Cunningham, the trial prosecutor.
The memo says she saw them approaching the parking lot from another street about a block away. No account of a statement like that appears on the videotape. According to Jones’ plea, seeing the complete video could have changed the jury’s mind about the prosecutor’s efforts to identify Jones, which relied heavily on his movements that night.
In the video, Starks picks a picture out of a photo array, and Detective Smith then says she has selected Jones. In court, Starks said she couldn’t “be positive” that he was the one who killed Rodriguez.
Other testimony also cast doubt on Jones’ guilt.
Paul Jones, who is no relation to Darrell, told police that he was with his girlfriend Denise Perkins at D’Angelo’s the night of the shooting. He said he was buying sandwiches when two African Americans — a young man and woman — arrived to buy food. The man, he said, returned to Pete & Mary’s, and four or five minutes later came back out pushing a taller Cuban man, and shot him in the parking lot.
Jones, now 54 and living in nearby Avon, says he is still confident that the man who purchased the sandwich killed Rodriguez, in a shooting that still unnerves him. At trial, Paul Jones told the jury that he wasn’t certain that the man he saw in the courtroom — Darrell Jones — was the shooter.
“I did not point him out because I wasn’t 100 percent sure it was him,” Jones told NECIR during a recent walkthrough of the crime scene.
On the witness stand, Perkins also said she wasn’t sure, but pointed to Jones when she was asked if anyone in the courtroom was “of a similar description” to the shooter.
Perkins later said that police prodded her to identify Jones in photo line-ups. The Massachusetts Supreme Judicial Court’s commission examining police-identification practices, has recommended that police who show photos to witnesses should not know who is the suspect is, and should not confirm a witness’s choice – which could lead to them being more confident about identifications in court.
“When I narrowed it down to four the police told me that I was doing well because the guy was in that group of photographs,” Perkins said in a 2014 affidavit. “It seemed like the police already knew who did it and they were just asking me to confirm what they already knew.”
Lisa Pina, another eyewitness, who was in the same car as Starks, testified in court that she couldn’t identify Jones as the shooter.
“I did not see much that night, but I felt like the police had their own idea of what happened and they wanted me to come to the same conclusion that they did,” Pina said in a 2014 affidavit filed with the motion for retrial.
Jones said he had planned to testify in his defense but didn’t after Elias advised him not to — since he had failed a lie detector test in a pre-trial interview in which he said “no” when asked if he shot Rodriguez.
If Jones had taken the stand, the test results could have been used against him in court to cast doubt on his denial. Several years later, in 1989, the state Supreme Judicial Court banned such use of the tests in criminal trials, saying the accuracy rates for innocent subjects was only “slightly better” than “flipping a coin.”
On the first day of its deliberations, the jury asked the judge for a definition of “beyond a reasonable doubt.” The next day, it said it couldn’t reach a unanimous verdict, as required by law. After the judge told them to keep trying, they returned a guilty verdict on the third day.
The jurors
Eleanor Urbati said she was the last juror holding out for not guilty. Initially unconvinced by the evidence, the retired telephone operator said in a recent interview that the judge’s instructions when things were deadlocked — to find a way to agree — persuaded her to give in.
“It just seemed like everybody was against this kid for whatever reason,” said Urbati, who is 79. “All I had to do was say ‘no’…I’ve been regretting it my whole life.”
Another thing that troubles Urbati: two jurors’ comments that she deemed “racist.” On the first day of deliberations, she said both of them believed Jones was guilty.
“Because he’s black?” she asked.
“And they said, ‘yes.’ They said ‘yes,’ the two men. How do you like that?”
Urbati said she couldn’t remember the two jurors’ names.
Anthony Padula, another juror in the case, said he had no memory of anyone saying they believed Jones to be the killer because he is black.
“The evidence as far as I am concerned is that 30 years ago he was guilty as sin,” said Padula, who now lives in Maine. He said that he was convinced partly because eyewitnesses identified Jones as the shooter and picked him in line-ups.
Charles Costas, the jury’s foreman, said he didn’t remember jurors saying “anything like” the racially biased words Urbati recalled. “I’m done with it,” Costas said, declining further comment. “I can’t help you.”
For Jones, it’s not done. His new motion to reopen the case could take months to decide. He says he’s still waiting for the government to produce evidence showing he was the killer.
“My story’s the same story every day,” he says. “I’m still in jail.”
This story was written by Jenifer McKim and reported by McKim, WBUR reporter Bruce Gellerman, researcher Leonard Singer, NECIR interns Evelyn Martinez and Bianca Padro, and students from a NECIR investigative class held at Boston University. McKim can be reached at jmckim@bu.edu. Follow her on Twitter at @jbmckim.