National Public Radio
National Public Radio
All Things Considered
December 15, 2004
Profile: Case of Walter Arvinger, who spent 36 years in prison for a
murder he did not commit
Edition: 8:00-9:00 PM
Estimated printed pages: 9
Article Text:
MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
Now a story about a mistake.
(Soundbite of various newscasts; music)
Mr. JEFF BARND: Hello, I'm Jeff Barnd.
Ms. JENNIFER GILBERT: And I'm Jennifer Gilbert.
A family in northwest Baltimore is gearing up for a special holiday
homecoming tonight.
Unidentified Woman #1: ...who's been in jail since 1968 for a murder
his friend committed.
Unidentified Man #1: Sentenced to life at age 19, Walter Arvinger is
now 55 and...
Unidentified Woman #2: Still, you know, 36 years ago, Walter Arvinger
hung out with a bad crowd, but that was about all he was guilty of.
Unidentified Man #2: ...and now Arvinger is home.
SIEGEL: When Walter Arvinger got out of prison, he made a lot more news
than he did when he went in. He was arrested back in ! 1968 for a crime
that drew very little attention. For most of life, Walter Arvinger was
the victim of errors, misguided assumptions and bad luck. His story is
instructive for all of us because it's about how wrong we can get
things, and it's especially instructive for the law students who worked
successfully for his freedom, which came just last month.
(Soundbite of dog barking)
Mr. WALTER ARVINGER: How are you? Come in.
SIEGEL: We are at Walter Arvinger's brother's house in Baltimore,
Maryland. It's a warm and welcoming home to five generations of Mr.
Arvinger's family, from his 105-year-old grandmother to his
four-year-old grandnephew. There's also a dog and plenty of tropical
fish in tanks that bubble loudly. Until Thanksgiving, Walter Arvinger
had served 36 years of a life sentence for a crime he didn't commit.
Mr. ARVINGER: And I never look back. I don't pay the past no mind; I'm
just looking at the future and the present. That's a! ll I do. You
know, so--that's just like you get a burn on your finger .. Eventually,
it's going to heal, you know.
SIEGEL: But it hurts.
Mr. ARVINGER: It hurts, but it's gonna heal, and that's what count. As
long as you know everything is going to heal, then there's no sense of
me even being worried about it. That's how I look at life. You know
what I mean?
SIEGEL: Call it a positive attitude, call it survival; by the time
Walter Arvinger's life sentence was commuted last month, he was 55.
When he went in, he was 19. He had aged out of high school in
Baltimore, unable to complete 11th-grade special ed courses. He had a
job; he had no prior trouble with the law; he had no diploma and no
plans.
Mr. ARVINGER: Well, then I wasn't looking at too much 'cause I was
young. I used to be out playing basketball, hanging out with my little
buddies on the baseball field, stuff like that. I hadn't really grown
then.
SIEGEL: On the night of October 6th, 1968, Walter Arvinger went to a
friend's house. There we! r! e five boys there including Walter. He
left the house to buy a slice of cake at a nearby convenience store.
Mr. ARVINGER: You know sometimes the company you keep, but you don't
know the company's that bad. You know what I mean? Because we all kids,
teen-agers, you know. You don't know until somethin' happen.
SIEGEL: And that night, something did happen. There was a conversation
about mugging someone. And while Walter Arvinger was out of the house,
one of the boys spotted a pedestrian outside, ran after him with three
others in tow and beat 52-year-old James Brown to death with a baseball
bat. Walter Arvinger walked back from the store in time to see the last
blow. He joined his friends. Two of the others went through the
victim's pockets, but not Arvinger, and then they all ran away and were
arrested two days later. Then a year later, in October 1969, Walter
Arvinger stood trial for murder.
Professor MICHAEL MILLEMANN (University of Maryland! ): The prosecutor
never suggested Mr. Arvinger wielded the bat or had any role to play in
hitting the victim.
SIEGEL: University of Maryland law Professor Michael Millemann.
Prof. MILLEMANN: The state's theory was that Mr. Arvinger had been
involved somehow in planning the robbery or, more specifically, the
judge's theory was that Mr. Arvinger had been a lookout or had stood
ready to help. And all the evidence in the record contradicted that.
There was no evidence he was a lookout. Indeed, all the evidence was to
the contrary.
SIEGEL: In December 2002, Michael Millemann, who teaches in the
clinical program at the Maryland Law School, received a handwritten
note from Arvinger.
Prof. MILLEMANN: It was a very simple letter. It was short. In it, he
claimed to be innocent and basically asked me to take a look at his
case. It was direct and it was not flowery.
SIEGEL: Professor Millemann was one of several people Arvinger wrote
to. Other lawyers replied to Arvinger with questionnaires for him to
complete.! Millemann just asked him to send a transcript of his trial.
Mr. ARVINGER: I felt like when I got the letter back from them telling
me to send my transcript, you know, that's when--the other lawyers you
would stop writing because they want to know this and want to know
that. `Did you do this? Did you do that?' instead of just, you know,
taking the transcript and looking it over and see what's goin' on--You
know what I mean?--instead of making me feel like I'm back in court.
Prof. MILLEMANN: And he sent me his transcript, and I read his
transcript and was instantly appalled at what I read, because what I
read was a case in which he never, ever should have been convicted of
homicide.
SIEGEL: After seeing the transcript, Millemann had his law students
take up Arvinger's case. The transcript runs just 90 pages, a
three-hour trial in a capital murder case. Millemann recognized the
name of the defense lawyer, the late Morris Lee Kaplan, a man Millemann
! says used to brag that he never went to trial with more paper than
cou ld fit in his pocket.
The state presented three witnesses, two of whom just established when
and where the crime took place; they didn't identify Arvinger. The
third witness was a 14-year-old member of the group who had already
testified in the trial of another of the boys, a trial that had ended
in an acquittal. In that trial, in which Arvinger testified for the
defense, the 14-year-old said plainly Walter Arvinger was not present
during the talk about a mugging. At Arvinger's trial, he said as much
again several times. `Was Walter there?' the prosecutor asked. `No,
sir. He had left out of the house' was the answer.
And then there was this somewhat more ambiguous exchange with the
prosecutor. `Did he leave before you started talking about it?' `No,
sir.' `When did he leave?' `We were talking about it and he left out of
the door.' `Was he there when you were talking about it, then?' `No,
sir' was the answer.
Prof. MILLEMANN: And that was the ! only evidence against Mr. Arvinger
at trial. That was it, either that Mr. Arvinger had left before they
started talking about robbing somebody, or that he left as they began
talking about it and he did not know what they were talking about. That
was the testimony, and that was 100 percent of the prosecution
testimony against Mr. Arvinger.
SIEGEL: So why then was he on trial for murder based on such flimsy
evidence? Well, the most Walter Arvinger can make of it is that he was
wrongly taken for a leader of the plot because of his age.
Mr. ARVINGER: To me, they just think that, `Yeah. Well, he's the oldest
one. He probably had something to do with it.' But it don't work like
that.
SIEGEL: You were the oldest of the five...
Mr. ARVINGER: Yeah.
SIEGEL: ...of the five teen-agers.
Mr. ARVINGER: That's what happened. Yeah, that's what happened.
SIEGEL: So you must have been--the reasoning was you must have been
responsible! in some way here.
Mr. ARVINGER: That's what they were saying to me, you know. That's the
way it seemed.
SIEGEL: But in this trial with no jury, how did the judge end up
finding him guilty of first-degree murder and sentencing him to life
with the possibility of parole when no one said he was present at the
time of the killing and the one witness who might have placed him in
the planning of the crime didn't do so? Michael Millemann sees three
reasons. First, a bad defense.
Prof. MILLEMANN: Mr. Arvinger had a private attorney who used to brag
about not being prepared. And, in fact, he was grossly unprepared in
this case. He didn't interview the witnesses; he didn't call any of the
witnesses, all of whom would have exculpated Mr. Arvinger.
Secondly, the trial judge simply got it wrong in a way that is hard to
describe, but basically it was gross error. The trial judge was a young
judge. He was on the bench only for a matter of months at this time.
And, third, the post-trial process failed miserably.
SI! EGEL: By post-trial process, Michael Millemann means, first,
Arvinger's appeal.
Prof. MILLEMANN: The same lawyer who malpracticed the trial represented
Mr. Arvinger on appeal, and wrote a brief that I would flunk a
first-year student for writing. And then thereafter, Mr. Arvinger never
got the effective assistance of a lawyer, or any lawyer, to try to call
to the attention of an appellate court what had gone wrong at trial.
SIEGEL: Then there was the question of parole. In prison, Walter
Arvinger got his GED and then training as a welder. And with a good
disciplinary record and a shot at parole, Arvinger was placed, in 1989,
in a prerelease program. He worked six days a week outside the prison
with monthly home visits. That went on for three and a half years.
Then in 1993, another lifer in the program briefly escaped. A second
ran away and committed a string of violent crimes. And then came Rodney
Stokes. As a Baltimore television station rep! orted at the time,
Rodney Stokes was living at the state's prerelease center. He was
convicted of murder in 1975 and sentenced to life. But in 1988...
(Soundbite of 1990s newscast)
Unidentified Man #3: But in 1988, he was put on work release. He showed
up for his job here at a city transportation yard this morning, but
told his supervisor he was sick. That's when he left and headed for the
state pen, where he posed as a guard, walked right in and started
shooting.
Unidentified Man #4: He has been a model prisoner. We have no
information that would have led us to believe that he was going to
commit this act this morning.
SIEGEL: After the Stokes case, Maryland inmates serving life were taken
out of work release. Walter Arvinger, for no misdeed of his own, went
back to a maximum-security prison.
He still had hopes of parole, though, at least until 1995. That year,
Maryland's new governor, Democrat Parris Glendening, got tough on
sentencing.
(Soundbite of 1995 broadcast)
Governor PARRIS G! LENDENING (Democrat, Maryland): Life in prison
doesn't mean eligible for parole 11 years, 15 years, 20 years or
anything of that type. Life in prison means life in prison, and I
believe that that message must be very, very clear.
SIEGEL: So in 1998, when the parole board recommended Arvinger's
release, the governor declined to approve it, not because of any
specifics of the case, but because of his policy, `Life means life.'
When Governor Glendening's successor, Republican Robert Ehrlich, took
office, the possibility of parole was restored.
By that time, everyone else who had been convicted in the case was long
free, even the one who had done the killing with the baseball bat. Only
after Michael Millemann's law students got on the case and made the
six-hour, round-trip drive to interview Arvinger in prison several
times, only in November 2004 did the governor commute Walter Arvinger's
sentence.
Prof. MILLEMANN: Walter, why don't you come up here and! say a few
words?
SIEGEL: At the law school in Baltimore, they celebrated.
(Soundbite of applause)
Mr. ARVINGER: First and foremost, I'd to thank all you people for
coming, showing up and being a part of my life, and especially my law
students. I'm overwhelmed with joy and I don't have too many words to
say right now, but in the future, you'll get to know me. You'll get to
know me.
(Soundbite of laughter)
Mr. ARVINGER: And I'm going to make that my business, you know. And I
have a little card here for my law students, as you can see, 'cause
you-all a part of my life now and I thank you.
SIEGEL: Walter Arvinger's defense lawyer died some years ago. The
state's attorney in the trial hasn't been a prosecutor for years. He
still practices law, and he insists he has no recollection whatever of
this case. The judge, Harry Cole, went on to become an illustrious
state appellate judge. He was the first African-American to sit on
Maryland's highest court. He died in 1999. Professor Michael Millemann!
was a pallbearer at his funeral. Had the Arvinger case been taken up on
appeal, Millemann says he was prepared to argue that the verdict of the
young trial Judge Harry Cole was one that the mature appeals Judge
Harry Cole would have recognized at once as a grave injustice.
Walter Arvinger still must serve the remainder of his sentence on
parole. Governor Ehrlich commuted the sentence; he did not say that
Arvinger is not guilty of the crime. So for Walter Arvinger--back at
home, but not exonerated--the next hurdle is to clear his name.
Mr. ARVINGER: It's real important. It's real important to me because I
know it's not right for what they done to me, you know, but eventually,
that'll give, too. It may not come like this came, but it's going to
come, you know. So I'll just hope and wait and pray.
SIEGEL: For the law students who worked on Walter Arvinger's case, it
was part of the University of Maryland's unusual commitment to clinical
studies work! ing on behalf of the indigent. It was also the way a
class in legal w riting was taught. Instead of writing practice motions
from textbook hypotheticals, they drafted real-life motions on behalf
of their real-life client. They all told us that the Arvinger case
reminded them of why they had chosen to study law in the first place.
Mr. BRENDAN HURSON (Law Student, University of Maryland): When you read
trial transcripts like this, you just say, `Please, I just want to be a
trial attorney so I won't make these mistakes,' and hope that in 36
years there isn't a group of law students sitting around saying, `Oh,
Brendan Hurson. Wow, he really made a big mistake here.' But you know...
SIEGEL: We'll meet four of those students and hear what they learned
when we continue with ALL THINGS CONSIDERED.
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Record Number: 200412152006