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All Things Considered

December 15, 2004

Profile: Case of Walter Arvinger, who spent 36 years in prison for a murder he did not commit


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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