Michael Lang was walking home from a late-night pickup basketball game when he heard a loud bang.
The sound came from a car wash a few blocks from his Warr Acres apartment. The 17-year-old ran toward the noise and discovered a man bleeding and lying face down next to a Ford Explorer. Lang sprinted to the nearest payphone and dialed 911.
Police arrived a minute later. They identified the gunshot victim as 26-year-old Christopher David Terry, a teacher and coach at Grace Christian Academy in Oklahoma City. Paramedics rushed Terry to a nearby hospital where he was pronounced dead.
Evidence at the crime scene, which police described as a carjacking gone wrong, was scarce. The killer didn’t leave behind a murder weapon. The car wash didn’t have video surveillance. Eyewitnesses were scarce on the cold Wednesday night in January 1999.
Investigators began building their case using Lang’s testimony. At first, Lang said he was on the opposite side of the street and couldn’t provide an accurate description of the killer. After failing a polygraph test, he changed his story and told police he saw a man wearing a blue top and jeans fleeing the scene. That assailant, Lang told police, was his neighbor’s younger brother Antonio Garcia Ellis, a 17-year-old junior at Putnam City High School.
Two and half years later in June 2001, a jury found Ellis guilty of first-degree murder and recommended a life prison sentence. Oklahoma County District Judge Virgil Black honored the jury’s recommendation a month later.
After sentencing, Black acknowledged that the prosecution’s case was “not very strong” but that he believed Lang and trusted the jury’s decision. Two decades later, newly discovered evidence suggests Lang’s testimony may not have been reliable after all.
In September 2019 Lang contacted the Innocence Project to redact his trial testimony, claiming that police coerced him into identifying Ellis as the killer and that both men, then teenagers, were victims.
In places like North Carolina or Dallas County, the newly discovered evidence in Ellis’ case could be reviewed by an independent conviction integrity unit equipped with the resources to investigate and remedy wrongful convictions.
No such body exists in Oklahoma, where state prisoners must seek relief through the Court of Criminal Appeals.
The likelihood that an appellate judge overturns a conviction on an innocence claim is slim. Appellate courts are better equipped to review legal and procedural errors, attorneys and legal experts say, not reassess guilt or innocence. They’re also bound by strict procedural rules that make it difficult for prisoners and their legal counsel to raise certain arguments.
With the assistance of Andrea Miller, legal director for the Oklahoma Innocence Project, Ellis opted to file an application for post-conviction relief in late 2019. That application progressed to an evidentiary hearing in February.
In a March ruling, Oklahoma County Judge Susan Stallings agreed that Lang’s testimony was undeniably new evidence eligible for post-conviction review. However, the passage of time, Lang’s prior criminal history and his 2015 schizophrenia diagnosis cast doubt on the recantation, she said. Ellis’ application for post-conviction relief was denied.
The Oklahoma Innocence Project is appealing the ruling, the latest development in a legal battle with no immediate end in sight.
“Most people think we have these endless appeals and you get to raise all sorts of stuff back to the court all the time,” Miller said. “The reality of it is, it’s actually very difficult, if not impossible, to get a lot of issues heard by the court.”
The Oklahoma Innocence Project has a backlog of 800 requests seeking legal help in fighting a wrongful conviction, according to Miller. The nationwide Innocence Project estimates that about 1% percent of imprisoned people are factually innocent.
In Oklahoma, that would equate to 200 state prisoners.
‘It Doesn’t Make Any Sense’
Antonio Ellis spent summers working on his grandfather’s farm and falls playing fullback for the Putnam City Pirates. He breezed through high school courses and was on track to attend college, his father Timothy Brown said.
“If you put him to a test, he was one of the kids who didn’t have to study and he would ace it,” Brown said. “It just came easy to him.”
Brown said he was in disbelief after hearing the verdict. Antonio had a clean criminal record and rarely got into trouble at school. Three weeks prior to the arrest, Brown said he had bought him a car so he could more easily visit his mother in Wichita.
“Why would he want to carjack somebody,” Brown said. “It’s not like he was out looking for cars and looking for money. It doesn’t make any sense. He’s just a kid who got tied up into something that he knows nothing about.”
According to Brown, Ellis was talking on the phone with his girlfriend at the time of the shooting. The girlfriend’s mother corroborated that story, but neither party could present evidence of the call taking place at the time of the crime.
In his first direct appeal, Ellis argued that his attorney did a poor job utilizing available evidence and failed to object to the prosecution’s alibi rebuttal witnesses. An appellate judge rejected those claims in a 2003 ruling.
The first direct appeal can make or break a prisoner’s chances of getting a new trial or being released. But there’s not much time to gather evidence and present an argument.
From the moment a judge hands down a prison sentence, the court reporter has 90 days to finalize trial transcripts and compile relevant documents, including motions, notices and subpoenas. The defendant and their legal counsel are then given a maximum of 120 days to file a motion for direct appeal.
All known legal issues must be raised on the direct appeal. For example, if the defendant claims they had an alibi that their attorney refused to investigate, that argument must be introduced. A post-conviction judge will likely consider such evidence waived, meaning it could have been raised earlier and was not.
These stricter deadlines were implemented in the 1990s when the federal government and states moved to expedite death penalty proceedings and keep prisoners from filing frivolous appeals years after their conviction. The federal law, the Antiterrorism and Effective Death Penalty Act of 1996, was enacted months after the Oklahoma City bombing. Critics argue the act has taken away rights from prisoners and increased the likelihood that an innocent person remains imprisoned or is executed.
Miller said the four-month turnaround period for direct appeals is a heavy lift for attorneys who must go through several hundred pages of documents and build complex legal arguments. In many instances, key evidence is not even available at the direct appeal deadline.
“Whether it’s an agency handling the appeal or private practitioners, they don’t have the time to conduct that kind of investigation that quickly,” Miller said. “Not to mention the fact that sometimes, if you’re talking about issues like an informant was given a deal that was undisclosed by the prosecution, a lot of times those people aren’t talking for years.”
Legal options dwindle after the first direct appeal. Oklahoma does not provide legal counsel to those seeking post-conviction relief until a judge agrees to hear their case, meaning prisoners must petition the court themselves or seek help from a group like the Oklahoma Innocence Project. State prisoners can’t petition a federal judge until all state appellate options are exhausted, which can take several years.
Oklahoma’s post-conviction statute allows for prisoners to appeal their sentence based on constitutional concerns or if new material facts of evidence not previously presented or heard have emerged. New evidence can include a witness recantation, like in Ellis’ case, or DNA analysis that proves someone was not involved with a crime.
Uncovering such evidence is extremely rare. In the minority of cases where new evidence is found and the post-conviction appeal moves forward, appellate courts may be reluctant to overturn a trial court’s decision per the legal doctrine res judicata, which states that a competent court has already ruled on the matter. They may also reject the evidence under the Doctrine of Laches, which asserts the court can reject a legal claim if a petitioner waits too long to seek relief.
“On its face, our post-conviction statute isn’t bad,” Miller said. “It gives adequate grounds to be able to argue constitutional violations and miscarriage of justice, which is basically innocence. The problem is how the courts have implemented rules to really limit what you can do, when you can do it and how it has to be done.”
States, DAs Investigate Wrongful Convictions
From Seattle to Birmingham, district attorneys across the U.S. are establishing conviction integrity units in an attempt to prevent wrongful convictions.
The review boards typically have the power to review factual innocence claims and recommend that a prisoner’s conviction be overturned. They also aren’t bound by the same procedural bars as appellate courts. None of Oklahoma’s 27 district attorneys have established a conviction integrity unit, but they’re becoming common in larger counties in Texas and North Carolina.
Preliminary data shows the review boards are helping to expedite the release of innocent prisoners. Though the review boards exist in less than 3% of counties nationwide, they accounted for 47.2% of exonerations in 2020, according to the National Registry of Exonerations.
Conviction integrity units typically have their own investigators who can review new evidence and evaluate previous prosecutorial mistakes. Appeals courts are more likely to consider evidence that the prosecution and defense have already presented, said Don Knight, a Colorado-based attorney who represents Oklahoma death-row prisoner Richard Glossip.
If the prisoner’s legal counsel did a poor job introducing evidence at trial or during previous appeals, that could hurt their chances of finding post-conviction relief in the appellate courts, Knight said.
“To think that the Court of Criminal Appeals can do what a conviction integrity unit does is sort of comparing apples to oranges,” he said. “The Court of Appeals in Richard’s case, and the federal courts above when they went through habeas, ruled on what’s in front of them. But what’s in front of them is only as good as the work that was done to put it together.”
Most legal experts agree that conviction integrity units are a positive, but not flawless, development in the sphere of criminal justice.
District attorneys offices in metropolitan areas are more likely to have the financial means to establish and maintain an effective review board. Prosecutors may find it difficult to remain impartial when reviewing convictions obtained by their colleagues.
“What can impact a conviction integrity unit is those political swings,” said Beth Tanner, associate director of the North Carolina Innocence Inquiry Commission, the nation’s only independent statewide agency dedicated to investigating factual innocence claims. “You can end up with somebody who’s never going to look at any kind of innocence case or accept that there were ever problems with a case. Or you can have somebody who thinks everything is worth being reviewed.”
North Carolina’s legislature voted to create the Innocence Inquiry Commission in 2006 following several high-profile exonerations. The commission, lawmakers determined, would lessen the burden on a court system not equipped to handle factual innocence claims. It would also have the resources necessary to uncover new evidence and do its own investigations.
Unlike independent innocence projects, the state agency has the authority to subpoena witnesses and compel evidence from government entities. Any prisoner convicted in a North Carolina court can appeal to the innocence commission, but in doing so waive several rights, including self-incrimination and attorney-client privilege.
Similar to Oklahoma, North Carolina prisoners must present a factual innocence claim. But their fate is decided by an impartial eight-member committee and three judges rather than an appellate court.
“The commission model works because of the hallmarks: We are neutral, we have been given all the legal powers necessary and our cases are confidential except in certain circumstances,” Tanner said. “I think that’s important because it allows us to protect when victims are talking to us, and nothing is public except in a commission hearing.”
If commission investigators uncover evidence that supports a factual innocence claim, the case moves forward to a formal hearing. At the hearing, a group of eight judges, attorneys and victims advocates votes on whether to advance the case to a three-judge panel. Those judges then decide whether the prisoner should be exonerated.
Just 1% of all applications advance to a commission hearing, according to Tanner. The agency has recommended 15 exonerations in its 15-year history, all of them approved by the three-judge panel.
Tanner said the agency has fielded inquiries from other states interested in setting up their own innocence inquiry commission, but so far no one has. The cost associated with starting a new state agency can be a barrier, as well as public perception.
“You have a challenge from folks who worry we are giving convicted people this ability to come back over and over and over, and there’s never any finality to it,” Tanner said. “That’s not really the commission’s role. In fact, the way we work prevents that from happening, because we’re not going to take a case up or revictimize or retraumatize a victim until there’s something there.”
States also have the option to establish an innocence review board under an existing agency. For example, this year Minnesota and Virginia launched conviction integrity units under the attorney general’s office.
Oklahoma’s legislature has not considered a bill that would create a statewide innocence review board. However, a growing, bipartisan group of lawmakers are raising concerns about how the state reviews death penalty cases where new evidence has emerged. In June, 28 Republicans and six Democrats asked the state Pardon and Parole Board to launch an independent investigation into Glossip’s case.
Among Glossip’s most vocal advocates is State Rep. Kevin McDugle, R-Broken Arrow. This past session McDugle introduced legislation that would have created a Death Penalty Conviction Integrity Unit under the state Pardon and Parole Board. The bill passed 4-0 through the House Criminal Justice and Corrections Committee but never received a full House or Senate vote.
“I think the only way to handle a case like his [Richard Glossip], especially, is to have a third-party look at both the prosecution and defense, all new evidence and anything they can present and literally take their time going through it,” McDugle said in an interview. “Then they can present their findings to the governor.”
McDugle said he intends to tweak the Death Penalty Conviction Integrity Unit bill and reintroduce it next session. Concerned about the potential cost of creating a new agency, he said he would likely be opposed to establishing an innocence commission but could see some of his colleagues being supportive.
Now 40 years old, Ellis is incarcerated at the maximum-security Lawton Correctional Facility. He’s eligible for parole but doesn’t plan on applying anytime soon; doing so would require an apology and admission of guilt.
Deidra Ellis, Antonio’s mother, said she’s proud of the perseverance her son has shown despite recent legal setbacks. Meanwhile, her patience is starting to wear thin.
“You just sit and you’re like, I need something done and I need it now,” she said. “Who’s to say how long he has to live and what God’s plan is.”
Two decades after Ellis’ conviction, technological advancements are changing how police conduct criminal investigations. Cell phone data can often pinpoint where a suspect was and who they were communicating with at the time of a crime. Scientists can identify DNA using much smaller samples, such as a drop of blood rather than a pint.
Though technology has improved, the potential still exists for wrongful convictions, Miller said. False confessions obtained using controversial interrogation methods like the Reid Technique, where interrogators create a high-pressure environment designed to elicit a confession, remain one of the leading causes of wrongful convictions. Mistaken witness identification contributed to 69% of exonerations analyzed by The Innocence Project.
“Before you can get better, you have to admit there’s a problem,” Miller said. “The state of Oklahoma has not done a very good job of recognizing that we have had a problem with wrongful convictions for a long time. At some point, there has to be an avenue for remedy.”
Keaton Ross is a Report for America corps member who covers prison conditions and criminal justice issues for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss