                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                               )
JOSEPH WAYNE EASTRIDGE, et al.                 )
                                               )
               Petitioners,                    )
                                               )
       v.                                      )       Civil Action No. 00-3045 (RMC)
                                               )
UNITED STATES OF AMERICA                       )
                                               )
               Respondent.                     )
                                               )


                                   MEMORANDUM OPINION

               After serving decades in prison for a murder they did not commit, Petitioners Joseph

Wayne Eastridge, Joseph N. Sousa, and the Estate of Salvatore Infantolino, a.k.a. Michael A.

Damien, now petition for a Certificate of Innocence so that they can proceed with wrongful

conviction claims before the United States Court of Federal Claims pursuant to 28 U.S.C. § § 1495,

2513. In its habeas opinion, this Court found “that this is the rare case in which Petitioners can

prove their ‘actual innocence’ of the crime charged as well as violations of their constitutional rights

at trial.” Eastridge v. United States, 372 F. Supp. 2d 26, 29 (D.D.C. 2005). The United States

opposes the petition, asserting that Petitioners are ineligible because they brought about their own

prosecution by engaging in misconduct. The United States also argues that Mr. Damien’s petition

should be denied because he did not, and could not, receive habeas relief from the Court inasmuch

as he had died in 2002, before the Court’s decision. The Court agrees that it did not formally

adjudicate Mr. Damien’s innocence and it cannot, therefore, issue a Certificate of Innocence to his

Estate. The Court will otherwise grant the petitions of Messrs. Eastridge and Sousa.
                                              I. FACTS

                Johnnie Battle, a Black man, was horribly stabbed to death by a group of White men

in 1976 because of racial animus and alcohol. The crime occurred near Wisconsin Avenue and

Ellicott Streets, N.W., Washington, D.C. Its racial overtones immediately captured the intense

attention of the entire city.

                Decedent Michael A. Damien, Joseph W. Eastridge, Stephen C. Jones, and Joseph

N. Sousa were convicted in the Superior Court of the District of Columbia of first degree murder,

while armed. Mr. Jones did not appeal his conviction. Messrs. Damien, Eastridge, and Sousa

pursued – individually and collectively – numerous appeals for the entire time they were

incarcerated. Mr. Damien died on December 10, 2002, while incarcerated at the Atlanta Federal

Penitentiary. Mr. Sousa served twenty years in jail before being released on parole. Mr. Eastridge

served twenty-nine years (including time for a prison assault on a guard) before being released on

parole. For reasons fully explained in its earlier opinion, this Court granted the writ of habeas corpus

to Messrs. Eastridge and Sousa under 28 U.S.C. § 2241. See Eastridge, 372 F. Supp. 2d at 29. The

Court found them innocent of murder as principals and innocent of aiding and abetting. It also

determined that the rule imposed by the trial judge regarding cross-examination and introduction of

evidence violated their constitutional rights. Finally, it found that the prosecution had failed to

release Grand Jury transcripts that contained exculpatory testimony, in violation of Brady v.

Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 813 S. Ct. 1194 (1963). The Court then set aside their

convictions. In its decision, the Court commented that “Mr. Damien, a co-petitioner at the time

initial briefing was completed, passed away on December 9, 2002. As a result, the habeas record

and briefs do not focus on him. Presumably, the same analysis would apply.” See Eastridge, 372


                                                  -2-
F. Supp. 2d at 29 n. 3. The Government filed a notice of appeal of the grant of habeas relief but then

withdrew it. See Gov. Notice of Interlocutory Appeal [Dkt. #67] and Dismissal Order [Dkt. #68].

                On April 17, 2008, Petitioners filed their Motion for Certificate of Innocence

pursuant to 28 U.S.C. § 2513, the Unjust Conviction Act. In order to receive compensation based

on an unjust conviction, a petitioner must prove:

           (1) His conviction has been reversed or set aside on the ground that he is not
           guilty of the offense of which he was convicted, or on new trial or rehearing
           he was found not guilty of such offense, as appears from the record or
           certificate of the court setting aside or reversing such conviction . . . and

           (2) He did not commit any of the acts charged or his acts, deeds, or
           omissions in connection with such charge constituted no offense against the
           United States, or any State, Territory or the District of Columbia, and he did
           not by misconduct or neglect cause or bring about his own prosecution.

28 U.S.C. § 2513(a)(1)&(2). “A petitioner has the burden of proof showing an entitlement to the

certificate,” while “a district court judge has broad discretion in deciding whether or not to issue such

a certificate.” Humphrey v. United States, 52 Fed. Cl. 593, 597 (Fed. Cl. 2002), aff’d, 60 Fed. Appx.

292 (Fed. Cir. 2003) (citations omitted).

           Ideal justice would seem to require that in the rare and unusual instances in
           which a person has served the whole or part of a term or imprisonment, is
           later found to be entirely innocent of the crime of which he was convicted,
           should receive some redress. On the other hand, reversals in criminal cases
           are more frequently had on the ground of insufficiency of proof or on the
           question as to whether the facts charged and proven constituted an offense
           under some statute. Consequently, it would be necessary to separate from
           the group of persons whose convictions have been reversed, those few who
           are in fact innocent of any offense whatever.

Burgess v. United States, 20 Cl. Ct. 701, 704 (Cl. Ct. 1990)

                                            II. ANALYSIS

                The United States does not dispute that Petitioners fulfill the requirements of 28


                                                  -3-
U.S.C. § 2513(a)(1): their convictions were reversed on the ground that they were not guilty of the

offense of which they were convicted. It also does not dispute that they “did not commit any of the

acts charged,” as required by 28 U.S.C. § 2513(a)(2). It concentrates its argument on the last

provision of § 2513(a)(2) and argues that both Petitioners, in varying ways, engaged in misconduct

that caused or brought about their own prosecution.            Petitioners dispute the government’s

interpretation of the statute and its analysis of the facts.

                A. Statutory Interpretation

                The Government argues that Section 2513(a)(2) is not satisfied because Petitioners’

“actions and/or failure to act contributed to their prosecution and made it easy for the jury to convict

them.” Gov. Opp’n [Dkt # 72] at 20. Petitioners respond that there are only two elements to the

legal standard and that they meet both: (1) the Court set aside their convictions based upon their

actual innocence and (2) they did not commit the acts charged. Pet’rs Reply [Dkt # 75] at 4.

According to Petitioners, the statute should be read:

           (2) He did not commit any of the acts charged or [a] his acts, deeds, or
           omissions in connection with such charged constituted no offense against
           the United States, or any State, Territory or the District of Columbia, and
           [b] he did not by misconduct or neglect cause or bring about his own
           prosecution.

28 U.S.C. § 2513 (1948) (emphasis and insertion added). Only if a petitioner cannot prove that he

did not commit any of the acts charged might he, as an alternative, prove what follows the “or,” i.e.,

none of his acts, deeds, or omissions in connection with the criminal charges constituted an offense

against the United States or any State and he did not by misconduct or neglect cause or bring about

his own prosecution. In other words, according to Petitioners, if they can prove that they did not

commit any of the charged acts (already determined by the Court), they do not need to prove that


                                                   -4-
they did not in any way cause or bring about their own prosecution. Petitioners’ reading of the

statute may be reasonable, but in the Court’s view, it is incorrect.

                A brief exposition of the relevant case law sheds light on the dispute. In Burgess v.

United States, the Claims Court described a prior case, Hadley v. United States, 106 Ct. Cl. 819 (Ct

Cl. 1946), as holding that “construction of § 2513(a)(2) requires that the certificate of the court

establishing [petitioner’s] innocence must specifically recite (1) that [petitioner] did not commit any

of the acts with which he was charged, and (2) that his conduct did not constitute a crime against the

United States or against the sovereignty within which the acts were committed.” 20 Cl. Ct. at 704

n.4 (emphasis in original). However, the Claims Court then continued: “In contrast, the Fifth Circuit

has construed these necessary recitations as disjunctive. See Osborn v. United States, 322 F.2d 835

(5th Cir. 1963). The court need not reach the issue of whether these requirements should be

interpreted as being disjunctive or conjunctive” since it would not affect Mr. Burgess’s case. Id.

                In contrast, the Fifth Circuit in Osborn clearly held that the “alternative conditions

of § 2513(a)(2) require that the claimant show either that he did not commit any of the acts or that

his acts constituted no offense against the United States or a State.” Osborn v. United States, 322

F.2d at 841. The Fifth Circuit explained:

           We accept appellant’s argument that the “or” in the statute means that he
           may prove either; he does not have to prove both. Logically, it would not
           be justifiable to require a claimant to prove both. If he did not commit the
           act charged it would be immaterial whether the act was unlawful, and
           conversely, if the act was not criminal it should make no difference whether
           he had done it.

Id. (citations omitted). Clearly, these rulings focus on a particular either / or question: if a petitioner

can prove that “[h]e did not commit any of the acts charged,” 28 U.S.C. § 2513(a)(2), then he does



                                                   -5-
not further have to prove that his acts “in connection with such charge” constituted no offense.

                The question here is separate and distinct: whether, in addition to proving that he did

not commit any of the acts charged or that his acts constituted no offense, a petitioner must also

prove that his own misconduct or neglect did not cause or bring about his own prosecution. The

Court finds that a petitioner must indeed do so.

                As a matter of statutory text, the “and” preceding the language on misconduct strongly

suggests that a petitioner must also prove that he did not cause or bring about his own prosecution.

Moreover, even in cases cited by Petitioner, courts have separately analyzed the petitioner’s own

misconduct or neglect in bringing about his prosecution. In Osborn for example, after finding that

the petitioner failed to satisfy either alternative prerequisite to recovery (i.e., that he did not commit

the acts charged or that the acts in connection with the charge constituted no offense), Judge

Wisdom also noted that the petitioner must show that his own misconduct or neglect did not bring

about his prosecution as “this, however, is just what the statute requires.” 322 F.2d at 843; see also

Betts v. United States, 10 F.3d 1278, 1284 (7th Cir. 1993) (even though “factually innocent,”

petitioner must still show he did not bring about his prosecution through his own misconduct or

neglect). The Court agrees that Petitioners must make an additional showing regarding their own

misconduct or neglect in order to receive a Certificate of Innocence.

                B. Analysis of the Facts

                The Government contends that Petitioners engaged in “misconduct” that precludes

the granting of a certificate of innocence because their “‘acts before, during and after the murder .

. . contributed to bring about their arrest or conviction.’” Gov. Opp’n at 21-22 (citing Keegan, 71 F.

Supp. at 628). The Government cites the following instances of misconduct: Petitioners attempted


                                                   -6-
to help Mr. Jones1 to escape; Mr. Jones adhered to the “Pagan Code” and refused to give information

about other members of the Pagans and these Petitioners were complicit in his silence; Petitioners’

conduct was tantamount to misprision of a felony, under D.C. Code § 5-121.05, because their silence

assisted other Pagans to “escape full judicial examination by the withholding of any information

about a felony,” see Butler v. United States, 481 A.2d 431, 444-445 (D.C. 1984), cert. denied, 470

U.S. 552, 557-558 (1980); Petitioners’ conduct constituted the offense of accessory after the fact

because Mr. Sousa stopped the car and picked up Mr. Jones as he was running away; Mr. Sousa

admitted to driving after consuming a large quantity of alcohol; Petitioners did not call the police

to report a shooting or remain in the area; each Petitioner concealed a knife; and Mr. Eastridge was

drunk in public in violation of D.C. Code § 25-1001(a). See Gov. Opp’n at 22-36. These arguments

are totally unpersuasive.

               “The statutory phrase ‘in connection with such charge’ was meant to preclude the

proof of some contemporaneous, but unrelated crime to bar recovery.” See Osborn, 322 F.2d at 842

(citing Keegan, 71 F. Supp. at 638). Much of the alleged “misconduct” on which the Government

relies was, even if accurate, unrelated to the actual crime charged – first degree murder. Their

drinking, Mr. Sousa’s driving, their concealment of unused knives, their reliance on their Fifth

Amendment rights to silence – none of these actions or omissions was related to the charged crime.

The only issue at which one might pause2 is whether Mr. Sousa’s act of picking up Mr. Jones as he

and Mr. Eastridge were driving around the blocks near Wisconsin Avenue (when neither Mr. Sousa


       1
          At the evidentiary hearing held in this matter, Mr. Jones testified under oath that he had
participated personally in the murder of Johnnie Battle.
       2
          The Court’s habeas opinion noted that Mr. Sousa’s act of picking up Mr. Jones “might
constitute the distinct and separate crime of accessory after the fact.” 372 F. Supp. 2d at 56.

                                                -7-
nor Mr. Eastridge had seen, participated in, or had knowledge of Mr. Battle’s murder) could be

sufficiently criminal and sufficiently related to the charge of first degree murder as to bar recovery.

               The Court concludes that the Government over-reads the statutory requirement that

a petitioner show that “he did not by misconduct or neglect cause or bring about his own

prosecution,” 28 U.S.C. § 2513(a)(2), under which the Government argues that Messrs. Sousa and

Eastridge were accessories.3 The Fifth Circuit, speaking through Judge Wisdom, again provides a

more sensible and balanced interpretation of the statute than does the Government here: “Congress

excluded from the operation of the remedial provisions of the statute those who, though innocent,

had negligently or willfully failed to take the necessary measures to avoid conviction.” Osborn, 322

F.2d at 843; see also Betts, 10 F.3d at 1285 (“The statute expressly requires a causal connection

between the petitioner’s conduct and his prosecution; it does not preclude relief simply because the

petitioner engaged in misconduct or neglect, period.”).

               At this point, it is useful to recount the reasons the Court granted habeas relief to

Messrs. Sousa and Eastridge. The Government’s theory at trial was that, as Mr. Battle fled on foot,

these Petitioners (together with Messrs. Jones and Damien) “gave chase, with their knives drawn,

chasing . . . Mr. Battle up to Wisconsin Avenue, across Wisconsin Avenue, where Mr. Battle is seen

tripping on a curb, falling backwards, with his arms up, and being stabbed repeatedly by these four

defendants.” Eastridge, 372 F. Supp. 2d at 28; see id. at 31 (“In less time than it takes to tell, Mr.

Battle suffered seventeen knife wounds and was dead”). It is now clear, and the Government

concedes, that Messrs. Eastridge, Sousa and Damien played no role in the murder. See id. at 32.


       3
           The Court rejects the Government’s argument that Mr. Eastridge was an accessory after
the fact to murder because, in the car, he handed Mr. Jones a newspaper with which to wipe the
blood off his hands. See Gov. Opp’n at 28.

                                                 -8-
“The shortcomings in the case against Petitioners were evident even to the prosecution at trial.

Confronted with unanswered questions and evidentiary inconsistencies, the prosecution pressed an

alternative aiding-and-abetting theory at the eleventh hour.” Id. at 54; see id. (“the Government did

not articulate an aiding-and-abetting theory until its closing argument”). Convicted of first degree

murder nonetheless,

           Petitioners were sentenced to twenty years to life. Mr. Sousa served
           nineteen years in jail before being released on parole; Mr. Eastridge served
           twenty-nine years before being released on parole. The terms of their
           paroles include significant restrictions. They served this time as convicted
           murderers for a crime which it is more likely than not that no reasonable
           juror, based on the full evidentiary record, would find them guilty beyond
           a reasonable doubt.

Id. at 33. On appeal, unlike at trial, the Government acknowledged the existence of persons other

than these Petitioners at the site of Johnnie Battle’s murder but argued that a third group had

followed in a car. Id. at 54. Thus,“[t]he role that the convicted persons played, Petitioners here, had

become more hypothetical and the proof of their guilt more attenuated.” Id. The Court found the

Government’s aiding and abetting theory “purely speculative.” Id. at 56. Contrary to law, the

Government was “seeking to sustain [Petitioners’] convictions of first-degree murder, a specific

intent crime, on an aiding-and-abetting theory.” Id. For these reasons, the Court concluded that no

reasonable juror could find the Petitioners guilty of murdering Johnnie Battle. Id.

                In addition to ruling that Petitioners proved their “actual innocence,” the Court further

found that an evidentiary ruling imposed by the trial judge interfered with their constitutional rights.

Id. at 57-58. For reasons not clear from the record, the trial judge ordered that “‘no lawyer [is] to

ask any questions that would inculpate or exculpate any other defendant unless he cleared it with the

defense attorney.’” Id. This Rule violated Petitioners’ Fifth and Sixth Amendment rights because


                                                  -9-
it “prevented effective and necessary cross-examination of key Government witnesses.” Id.4

Constrained by this Rule at trial, the Government’s argument that Petitioners brought about their


       4

           As the 2004 Hearing made clear, Ms. Heim was a witness who had
           observed the shooting of Bruce Hunter and the beginnings of the
           subsequent chase of Johnnie Battle. Ms. Heim testified before the Grand
           Jury that Mr. Jones was one of the Pagans who chased Mr. Battle after
           the shooting. At trial, however, she testified on direct examination that
           she did not see the chase, and Mr. Sousa’s attorney was barred from
           cross-examining her to establish that she did not name Mr. Sousa as one
           of the chasers before the Grand Jury but that she had named Mr. Jones.
           See Trial Tr. At 1757-58, 1810 (Grand Jury testimony read to court
           outside the presence of the jury). The trial judge refused to allow this
           cross-examination of Ms. Heim, which was clearly exculpatory evidence
           for the defendants other than Mr. Jones. Id. at 1807, 1811. At sidebar,
           the trial court also specifically denied a request by Mr. Sousa’s lawyer to
           have Ms. Heim enumerate and identify the individuals she saw giving
           chase. Id. at 1807-08. Counsel identified at least seventeen different
           issues on which he wished to question Ms. Heim but was rebuffed by the
           court in each instance. Among other things, counsel wanted to question
           Ms. Heim about the statements made by Messrs. Barber and Jennings,
           who had reached the Richter house on foot. The court refused to allow
           this avenue of inquiry because it involved references to co-defendant
           Richter. After a bench conference covering twenty-four pages of trial
           testimony, Pamela Heim was dismissed without one single word of
           cross-examination directed to her.

           Likewise, the effective cross-examination of Ms. Willetts was precluded
           when Petitioners’ attorneys were denied the right even to mention names
           of co-defendants to challenge her testimony. Id. at 1684-92. When Mr.
           Sousa’s lawyer tried to cross-examine Ms. Willets about specific
           conversations as they related to both Messrs. Sousa and Eastridge, he
           was prohibited from doing so solely because this line of questioning
           would involve references to Mr. Eastridge. As noted by the trial judge
           later, “the Rule proved so restrictive to Sousa’s attorney that he did not
           even attempt any cross-examination of a witness whose sworn testimony
           was very damaging to his client.” United States v. Eastridge, 110 Wash.
           L. Rep. 1181, 1187 (1982). Yet Ms. Willets was the only person whose
           testimony directly implicated Mr. Sousa and Mr. Eastridge. Id.

Eastridge, 372 F. Supp. 2d at 58-59.

                                                -10-
own prosecution by not doing more to exculpate themselves from the charge of first degree murder

is completely without merit.

               These Petitioners sat in prison for decades after a prosecution with shifting theories

and an unconstitutional vise that severely restricted their trial defense. The Government clearly

thought it had identified the men who killed Johnnie Battle. However, with the exception of Mr.

Jones, it was wrong and these Petitioners paid dearly for that error. “Ideal justice would seem to

require that in the rare and unusual instances in which a person who has served the whole or part of

a term of imprisonment, is later found to be entirely innocent of the crime of which he was

convicted, should receive some redress.” Burgess, 20 Cl. Ct. at 704 . This is “the rare case.” It

would make a mockery of the Unjust Conviction Act if these Petitioners were denied a remedy for

the unrelated misconduct upon which the Government rests its argument.

                                      III. CONCLUSION

               The Court grants the petition for a Certificate of Innocence as to Messrs. Eastridge

and Sousa. Mr. Eastridge and Mr. Sousa have demonstrated that they were actually innocent of the

crimes for which they were convicted. Neither Mr. Eastridge nor Mr. Sousa committed any of the

acts with which they were charged. Neither Mr. Eastridge nor Mr. Sousa, by misconduct or neglect,

caused or brought about his own prosecution.           A memorializing order accompanies this

memorandum opinion.


                                              ____________/s/___________________________
                                              ROSEMARY M. COLLYER
                                              United States District Judge

DATE: March 12, 2009



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