Reaching Through the Cracks in the System
Leon Benson’s Struggle for Freedom
"..Learn to grasp the things within reach and eventually you will burn the palms on the sun at the height of your success.." Lee Bentley 448
My name is Leon Benson. Originally I’m from Flint, Michigan. I came to Indianapolis, Indiana in 1995 while assisting my Uncle Joe in moving from Flint and by chance I lucked up on a painting and home renovations job with Deckers Printing Company. This caused me to remain in Indy with another Uncle, Clevlandy to work the job.
While in Indy, I made friends and met a woman whom birthed me two beautiful children. As life would have it, by the end of 1996 I was laid off from work. At this point, I resorted to what I knew best at the time to make a living – street hustling. Indeed, I subjected myself to unforeseen perils.
Now I find myself within an Indiana prison for a murder I did not commit. Although I’ve been falsely imprisoned the past few years (since 1998), I’ve been reaching through the cracks of the system by the day.
Facts of the Crime: On August 8th 1998, a white class male, Kasey Schoen was shot and as he sat in his truck in the noon downtown area of Indianapolis. Although I was a block away in an apartment building with several people present, I was arrested and charged with the homicide on August 14th 1998. What prompted my arrest was the suggestion of a 50ish black male drug user and parolee, Donald Brooks. Brooks speculated my involvement to an off duty police officer (later at two separate trials, Brooks claimed memory loss when questioned if he had in fact seen me on the scene).
Then, while at the police station an eyewitness to the shooting, Christy Schmitt, a white female newspaper carrier, mysteriously picked me from a photo line-up. My physical appearance of 5’10” and light complexion greatly contradicted what Schmitt stated to the police on the crime scene on August 8th 1998 as follows ‘while loading an outside newspaper vending box’ Schmitt stated she observed the shooter from 50 yards away at night while her van headlights illuminated the scene somewhat. She described the shooter as a dark complexioned black male, early/mid 20’s, 5’8”, skinny built, possible no facial hair, wearing an all black t-shirt, dark shoes and dark jogging pants with three stripes down each pant leg. Why did police perform a photo line-up instead of a live line-up, when I was already in custody? This question remains unanswered.
Exonerating evidence emerged early in the police investigation.
Firstly on August 12th 1998 another eye witness, a black male, Dakarai Fulton gave police a statement and positively identified another suspect from a photo line-up as committing the homicide. He described the suspect wearing the exact clothing that Schmitt described him wearing during the crime. However, Fulton stated he also saw the same suspect 2-3 hours before the shooting wearing the same clothing and waving a 380. automatic hand gun (the same gun model used to kill Kasey. Police recovered four 380. bullet shells and one 9mm bullet shell on the scene and a ballistic expert concluded that they were all fired from the same gun).
Secondly, on August 25th 1998 according to Indiana Crime Stoppers records, an anonymous callers stated he personally knew the suspect of the shooting and that he used his girlfriend’s gun in the crime, which she reported stolen days before. (Actual police records confirm a report of a stole 380. auto-handgun was made by the woman alleged to be the shooter’s girlfriend).
Thirdly on September 9th 1998, a black male, Kenneth Brookings, gave police a statement that his girlfriend help lure Kasey into the neighborhood and told him who actually committed the crime. (Fulton, Crime Stopper reports and Brooking’s ex-girlfriend identified the same suspect committing the crime, not me!).
With mounting pressure from being charged and incarcerated in Marion County Jail for a crime I did not commit, in late September 1998, I hired Timothy J. Miller, an Indianapolis lawyer to head my case. He promised me that he could get the charge dismissed. However, that did not happen and 8 months later I was sitting in a court room being tried for Kasey Schoen’s murder.
The Trials: The first trial occurred on May 24th 1999 and it ended in a hung jury verdict: 6 not guilty, 5 guilty and 1 undecided. The deadlock occurred with my lawyer presenting exculpatory eyewitness Fulton. Brookings, Gaskin and Smith. I believe the alibi testimony of Timothy Gaithen stated that we were in the apartment building during the gun shot sounds really helped to put reasonable doubt of my guilt in jurors’ minds. Moreover, Brooks spontaneous memory loss of telling police I was on the scene and Schmitt’s contradictory identification testimony of admitting before the court that I was a very light complexioned black male, unlike her initial description of the shooter being a dark complexioned black male, all contributed to showing reasonable doubt of my guilt to jurors too. After the first trial I saw many contradictions that prevented my outright acquittal, which were the lack of key witnesses being present to testify on my behalf. I figured my lawyer’s private investigator was unsuccessful in locating witnesses because he was a white male and possible scared witnesses away who lived in urban ghetto areas. Then I heard about a black private investigator named James Hendrix and decided to hire him to locate key witnesses. It seemed I made a right move. Hendrix located Gaskin in a few days on the job. Plus he conducted on scene experiments to test Schmitt’s view point during the crime and concluded that it was impossible that she could have positively identified anyone (in day light, let alone at night) from 50 yards away. Despite all his efforts, Hendrix was unable to locate Fulton.
On July 7th-8th 1999, the second trial began, but ended in me being found guilty. This verdict was despite the testimony of Shirley Gaskin who testified to seeing me, Gaithen and other in the apartment building during the night of the shots; Cheryl King testifying that Schmitt told her she could identify the shooter while on the crime scene waiting on police; and Carol Knight testifying she seen me the night of the crime wearing blue jeans and a blue t-shirt with an emblem on it. Brook’s and Schmitt’s testimonies were still contradictory as in the first trial. What drastically changed in this trial from the first, was my lawyer’s performance.
Trial lawyer Miller allowed the prosecutor to engage in misconduct throughout the trial alleging all the defense witnesses were given drugs to come to court to lie on my behalf without presenting my proof. But Miller didn't object to the false accusations and the introduction of Brooks unsworn, out of court statement. In addition, Miller didn't call Gaither to testify in the second trial without my knowledge until the middle of the proceeding.
Another surprise, it was revealed by the prosecution that Hendrix was once convicted of murder and served time in Indiana Prison. The court treated him like an ex-felon when it threw out all his testimony that challenged the State’s identification evidence. All of this was devastating to me. All I could say to the guilty verdict was ‘Jesus’, repeatedly. And when I was met with the roars of cheers to the guilty verdict from the court room full of white onlookers, my soul was vicariously choked by a judicial noose. I was a victim of a legal lynching. Later on August 19th 1999 I was sentenced to 60 years in prison.
What is troubling, in 2007 it was discovered that eyewitness Dakarai Fulton was in the custody of the State through both trials. Therefore my lawyer and the private investigator didn't do a good search for this witness, or they were complicit with the State and covering Fulton’s whereabouts.
Appeals: After the sentence hearing I immediately hired another lawyer and appealed the false conviction. On May 17th 2000 I filed a Direct Appeal. But on February 2002 the Appeal was denied by the Indiana Supreme Court, largely due to my Appellant Lawyer not raising ineffective assistance of trial counsel for his failed objects and locating exculpatory eyewitnesses for trial.
From that point on, I no longer had the financial means to hire a private lawyer. I was forced to file my second Appeal (Post Conviction Relief) with the Indiana Public Defenders Office on January 24th 2003. But my case was back-logged.
By 2007 I got the Public Defenders off my case due to their apathy to my issues. But what should I have expected from the Public Defenders when in 2005, the American Bar Association released a study that concluded that Indiana ranked fourth amongst the fifty states in providing the worst legal representation to poor prisoners. Therefore, it was logical that I continue my appeals (pro se) as my own lawyer, while looking for aid and assistance from the public. Now I am reaching through the cracks in the system by the hour!
Freedom Campaign: Even before my First Appeal was denied, I started a personal letter writing campaign. I continue these efforts – even to this day. I posted my first on-line case article in 2002 and I have received many responses from good people the world over. No one could help my case completely, but all the small efforts combined has kept me in the game (so to speak).
To date I have contacted all the US Innocence Projects, ACLU, NAACP, ABA, law schools, pro-bono firms, newspaper editors, TV news stations, talk shows, churches and the general public seeking assistance. Only to be turned down, or offered little help. Ironically, I’ve been turned down help from all Innocence Projects due to my case not involving any DNA or physical evidence. Instead, I suffer from cross-racial misidentification, the number one documentated cause of all false convictions, particularly those of black males when identified by white witnesses. Experts have found that a white witness when identifying a black suspect has a 65% chance of being erroneous. Why aren't Innocence Projects dedicated to more misidentify cases then? You can sign Leon’s Petition demanding Innocence Projects to back his case. You will find the link on top part of this page.
This “no DNA evidence – no help – defacto – social policy” has trickled down into the perception of common people. Which has left me with nowhere to turn for assistance within a genuine misidentification case. However, there exists a program in North Carolina called The Innocence Inquiry Commissions. Approved in 2006 by then Governor Mike Easley, the program considers mis-identity cases and where new evidence beyond DNA testing that was not considered previously in court. Unfortunately the IIC does not consider any cases from out of other states. No other state has such a practical program.
Notwithstanding the obstacles, in 2004 a scientific breakthrough emerged (although I found out about it in 2008) in Dr Geoffrey R Loftus and Erin M Harley’s ‘Why is it Easier to Recognize Someone Closer Than Far Away? (2004). They found that after 25ft, face perception diminishes. At approximately 150ft accurate face identification for people with normal or 50/20 vision in daylight drops to zero. And at night or under less than good lighting conditions, it increases information loss of the witness by an approximate factor of 3 for example, when Schmitt viewed the suspect from 50 yards away under poor lighting conditions, it is the same as seeing a suspect in daylight from a distance of 150yards.
With support from a friend and family members, I was able to connect with Dr Loftus. We hired him to perform his vision distance scientific analysis on my case. In June 2009 Loftus submitted an Affidavit on behalf of my PCR Petition. He concluded that the State’s eyewitness Schmitt, could not have identified anyone, especially when her vision was less than normal, from a distance of 147 feet under less than perfect lighting conditions.
Another scientific breakthrough emerged in 2008, when English Physicist John Bond discovered a new finger printing technique. In his study, Visualization of Latent Fingerprint Corrosion of Metallic Surfaces (2008), Dr Bond explained that his visualization fingerprinting technique could lift prints off any metal surface, even if it had been washed prior or wiped clean. And this technique could be performed on bullet shells as well, specifically the five bullet shells found on the crime scene in my case. With the help of the same friend, on December 10th 2008, Mr Bond was contacted. Surprisingly he offered to test the bullet shells in my case with his technique, free of charge. After reviewing ballistic reports of my case, on May 9th 2009, Dr Bond submitted an Affidavit on behalf of my PCR Petition. He stated that if there were any prints to be found on the bullet shells that conventional printing could not recover, his visualization technique would recover them.
While handling my case pro se, I included both Dr Bond’s and Dr Loftus’ Affidavits in my PCR Petition, as newly discovered evidence along with eight other powerful legal issues. My confidence was high in challenging my false conviction in the courts alone. However on August 19th 2009, when I attended a Discovery Hearing, regarding my request for the bullet shells to be tested with visualization and for the State to turn over Schmitt’s complete and verbatim statement given 30 minutes after the crime occurred – my confidence was shook by the nasty attitude of the Judge toward my case. Thereafter I sought legal representation from an attorney I had a six month investigating courtship with in accordance to the lowly financial resource I had to deal.
In September 2009, I sent this attorney $5000 in accordance to this proposed fee agreement contract, but with a stipulation that ‘he not take action on my case’ until we are finished contract negotiations’. However this attorney wrote a letter saying his services were unavailable. When I responded back requesting my funds back, he gave me no answer until October 2009. At that point, he made an appearance on my case without my permission and when I demanded him off my case, he stole $1,000 from me of unearned fees out of the $5000 retainer.
Because of this attorney’s treachery, together with the PCR court arbitrary rules of denying the bullet shells to be tested for visualization prints and the appearance of exculpatory eyewitnesses (ie. Timothy Gaither and Dakarai Fulton who submitted an Affidavit on behalf of my innocence on October 27th 2009) at the then December 16th 2009 PCR Hearing. I had to ‘withdraw my PCR without prejudice’ on November 17th 2009. If I wanted to preserve justice and my best chances for exoneration, I had to retreat until I could regroup and re-file my PCR Petition. Now I’m reaching through the cracks in the system by the minute!
My Reach for Freedom: Late US Civil Rights Leader Benjamin E. Mays once observed ‘...it must be borne in the mind that the tragedy of life does not lie in not reaching your goals, the tragedy lies in not having any goals to reach. It is not a calamity to die with dreams unfulfilled, but it is a calamity not to dream. It is not a disaster to be unable to capture your ideals, but it is a disaster to have no ideals to capture. It is not a disgrace not to reach the stars, but it is a disgrace not to have no starts to reach..’
Today, I want the public to know the world over that I have not given up on myself or my case. That I have legitimate freedom and justice to reach for. And more importantly that in my reach for freedom and justice, I struggle in a dignified way despite my circumstances. Some one once told me ‘LB, I’m troubled by the tragedy of your struggles as an innocent man in prison’. And I replied ‘No need to be troubled by my struggles, because what would truly be a tragedy is that if I were actually guilty of the crime, or even worse than that I had given up on my struggle despite being innocent. So rejoice in my innocence and help me reach my stars, ideals, dreams and goals of freedom and justice’.
And what better man to reach out to, than those who have already reached out to you? I am one of those particular men reaching out to you despite over 9 years in solitary confinement and lack of material resources. Prison officials have deemed me a threat due to my ‘interface’ that compels me to reach new heights of truth about self, the world and advancement in my freedom campaign. Frederick Douglas once wrote ‘..a man without force, is without the essential dignity of humanity. Human nature is so constituted that it cannot honor a helpless man, although it can pity him, and even this it cannot do long, if the power do not arise..’ I am seeking not pity here, but I am trying to appeal to your ‘inter force’ that make you never wanna stop fighting, that makes you never accept ‘no’ for an answer; that makes you take a deep breath before taking on the world, if need be. In the sincerest hopes that you aid and assist a righteous brother of the struggle.
Presently I need to gather the proper financial resources to hire good legal representation and a support team to publicize my case, to subdue the arbitrary – politic of a court room I’ve face as a pro se prisoner. We have the facts of my innocence already. Now is all needed is a support base focused and dedicated enough to see justice through.
Thank you for your time. I humbly await your genuine embrace. Until then, I am reaching through the cracks in the justice system by the second!
Truth Never Dies – Leon Benson
Wednesday, 23 March 2011