By David E. Frank
Massachusetts Lawyers Weekly
BOSTON — Ulysses Charles’ legs felt like jelly when he walked out of Judge Nancy Staffier Holtz’s courtroom four weeks ago.
The 59-year-old union welder’s steps were unsteady, his stomach queasy, his mouth incapable of forming any words.
At the end of a three-week trial and two days of deliberations, a Suffolk Superior Court jury on April 21 found him innocent under the state’s wrongful conviction compensation statute, Chapter 258D, enacted in 2004 in response to an increasing number of post-trial exonerations of convicted felons.
From the actual words on the verdict slip read out that day in Courtroom 1015, Charles heard the jury agree that he had “proved by clear and convincing evidence that he did not commit the crime or crimes for which he was convicted in 1984. “
After spending 18 years of an 80-year prison term in a place he described as “hell” and learning from behind bars about the suicide of his teenage daughter, a civil jury had finally exonerated Charles on charges he had violently raped three women in 1980 inside their Brighton apartment.
The verdict entitles Charles to as much as $500,000 in damages, the exact amount to be determined at a later hearing. The jury’s decision came eight years after Judge Barbara J. Rouse vacated his 1984 criminal conviction when DNA testing revealed that previously undisclosed semen found on a victim’s bed sheets and robe did not belong to him.
‘I got back my good name’
The fact that the case marked the first time a jury in Massachusetts had ever come back with a verdict under the 2004 statute meant nothing to Charles as he left the courtroom.
He needed to locate his 79-year-old mother, Ursula, who was sitting in the hallway, unable to bear the pressure of the verdict.
“She did this time with me, and I had to find her. I had to tell her,” he says. “This verdict was all or nothing for us, because if I prevailed I got back my good name as well as the potential to be compensated. And if the jury verdict had not been in my favor, I would be doomed forever. The cloud of suspicion would be forever. “
But when he tried to deliver the good news to his mother after spotting her outside the courtroom, Charles was unable to speak.
“I went to open my mouth, and I couldn’t say anything,” he recalls. “I became ill. I just had a breakdown, a physical breakdown. “
Charles, whose first 258D trial ended six months earlier with a hung jury, says he was later told by people at The Innocence Project that his reaction was a common one for those who finally receive word they have been exonerated. When he was able to speak, the words he uttered through his thick Caribbean accent were simple.
“I said to her: ‘Ma, the jury found me innocent,’” he says. “She didn’t say a word. She didn’t say a word because it was something we always knew. It wasn’t a surprise for us. It was only that finally we got to the public, to the community, to society. We got through. “
‘He carried the day’
From there, Charles turned to his Boston lawyer, Frank C. Corso, of Sarrouf Corso, who had inherited the case a few months earlier from WolfBlock after the mistrial.
“I told Mr. Corso: ‘Thanks for giving me back my good name. Thank you very much for that,’” he says through tears. “Mr. Corso is a real trial lawyer. How can I ever repay this man?”
A day later, Charles followed up that expression of appreciation by presenting Corso with a blown-up rendering of his mug shot, taken 21 years earlier, that contained a handwritten note with the same message.
“It was just a beautiful story,” says Corso in an interview with Charles at the lawyer’s waterfront office a few days after the trial. “It was a fight to dig himself out of a hole, and when he told his story to the jury, step by step, of what he did, when he did it and how he did it, it just rang and resonated with the truth. And I think he carried the day for himself by being able to explain his circumstances. “
While Corso will likely never receive a dime for his work on the case and is actually being sued by WolfBlock for recovery of fees it spent on expert witnesses during the first trial, the litigator says he has no regrets.
“I’ve had cases with eight-figure recoveries and for zero dollars. This was the most satisfying result that I’ve ever had for a client, and it was the most appreciated by a client,” he says. “You can go get an enormous verdict or a huge settlement, and it is in no way, shape or form as satisfying as it is to delivering the truth to someone. Being sued and having to report it to my malpractice insurer is not something I’m happy about, but I wouldn’t trade this case in for anything. “
While satisfied that the jury verdict vindicates him, Charles says he is still an angry man, particularly with Charles M. Campo Jr., the former Suffolk prosecutor who tried him in 1984. Although the two came face-to-face when Campo testified last month, Charles says they exchanged no words in the courthouse.
“I didn’t say anything to Campo. I knew he would burn in hell. I knew that his life is miserable,” he says. “He will self-destruct. I don’t have to do anything. “
Several calls to Campo, who is now a mediator in Wellesley, were not returned. In an e-mail to Lawyers Weekly, he stated: "[I]'m not going to engage in name-calling with him. There is no truth to his accusations against me. He has a long, verifiable history of making up false allegations against me in order to suit his purpose. I’ll leave it at that. “
Campo directed all other inquiries to Attorney General Martha Coakley’s office, which defended the case.
‘A reverse criminal case’
Getting to a point where Corso could put aside his client’s anger and convince a jury to deliver its verdict required him to prove his case under a difficult-to-define, untested standard. Unlike the preponderance-of-evidence threshold used in most civil cases, the law placed the burden on Charles to demonstrate his innocence with clear and convincing evidence.
“Clear and convincing evidence is a foreign concept that civil litigators don’t run across every day, and the Legislature has set the bar pretty high in these cases by doing that,” Corso says. “This was really a reverse criminal case because our mission was to undo something that had already been done. “
To prove his case, he argued that Campo and the police investigators assigned to the case had engaged in shoddy work that included serious failures to disclose exculpatory evidence. Corso says he showed the jury that DNA results from the crime scene, which were never disclosed to his client, would have exonerated Charles had they not been improperly identified as vaginal fluid during his criminal trial.
In addition, Corso presented evidence of statements made by one of the victims at the hospital that her attacker was circumcised; Charles is not. Although the statements were recorded in Campo’s notes, Corso says they were never turned over to Charles’ criminal lawyer, James W. Gilden of Sharon. (Gilden could not be reached for comment prior to deadline.)
While he never questioned whether the women were raped, Corso says he presented evidence to show that their descriptions of the alleged attacker were unduly suggestive. In their initial descriptions to police, the women described the assailant as a light-skinned black man with an American accent. The women, Corso says, made no mention of Charles’ dread-locks hair style or Caribbean dialect.
“My biggest concern heading into trial was deciding how to deal with the eyewitness identification that was going to be as strong today as it was in 1984,” he says. “My goal was not to make these victims re-live the crime. It was just to demonstrate how the description of the attacker changed from the time of the crime to the time that Mr. Charles was arrested. Once he was arrested and it became known that he was a dark-skinned West Indian with an accent, those characteristics morphed and started to be attributed to the rapist. “
By showing jurors how the eyewitnesses’ descriptions had changed to match Charles’ after his arrest, Corso says he was able to convey his message to the jury.
“My point in this case was that there were five victims. There were the three women who were raped,” he says. “Mr. Charles was a victim, and because this man went to prison for some crime he didn’t commit, society was a victim. “
‘The burden ... can be met’
Coakley said in a written statement that her office is still reviewing its options regarding an appeal.
“In this particular case, after a thorough evaluation of the presently available scientific evidence, it was the opinion of this office that such evidence did not prove the plaintiff’s innocence when weighed against the evidence which led to his original conviction,” the AG wrote. “Based upon the evaluation of the evidence, it was the opinion of this office that this case should not be settled and that the plaintiff should present his evidence in a court of law. “
In the meantime, Howard Friedman of Boston, who represented a man exonerated after receiving a 26- to 45-year rape sentence in 2000, says he and other plaintiffs’ lawyers closely monitored the results of the Charles case and that the verdict sends a strong message to potential litigants, their lawyers and the AG.
“This shows that the burden, which sounds legally like it could almost be insurmountable, can be met,” he says. “It’s a tough burden, especially in cases where there is no DNA, but what’s been shown here is that it’s not an impossible burden. “
When lawyers assess a 258D case, the verdict should help alleviate some of the concerns that usually arise, says Robert N. Feldman, a Boston lawyer who has had two clients recover under the statute.
“This is an uphill battle to begin with, just because of the age of the evidence, the problems with memories fading,” says the Birnbaum & Godkin attorney. “And hopefully for strong cases this verdict will give claimants and their lawyers some faith that, through their efforts, the fact-finder ultimately can sift through the age of the evidence and come out with a favorable verdict. "
Copyright 2009 Dolan Media Newswires