Debate Magazine

For David Black Freedom Isn’t Enough

Posted on the 13 September 2023 by Alanbean @FOJ_TX
For David Black Freedom Isn’t EnoughDavid Black, September 13, 2023

Back in the Free World

On August 3, 2023, David Black experienced his first taste of freedom in 26 years.  David was convicted in December of 1997 of accidently killing a 78-year-old Asian woman on K Street in Washington, DC.  According to the government, Black’s real target was his friend, James (“June Bug”) Smith.  If David committed such a heinous crime, twenty-six years in prison sounds about right.  Many would argue that such a criminally dangerous individual should never return to society.

David Black owes his freedom to the Second Look Amendment Act of 2019 (officially known as the Incarceration Reduction Amendment Act, or IRAA).  Criminal justice advocates have long argued that offenders who commit crimes in their teens and early twenties deserve a second look because it has been conclusively demonstrated that the male brain doesn’t mature until 24 or 25 years of age. 

It’s true.  Criminal activity rises sharply during from the mid-teens to the mid-twenties, then drops like a rock.  Most criminal careers end well before the age of thirty.  If incarceration is viewed as a form of rehabilitation, many young offenders who have spent two decades in prison no longer pose a serious threat to society.  If the draconian sentences they received back in the day are far from over, a reduced sentence is appropriate so long as candidates are carefully screened. 

If you see incarceration primarily as a form of punishment (which prosecutors tend to do) the case for early release is easily dismissed.  The fact that an inmate has a relatively clean disciplinary record, has taken advantage of educational opportunities, and is highly regarded by prison staff, matters little to do-the-crime-do-the-time conservatives.

Felony crimes committed in the nation’s capital are prosecuted in the federal system, and the Second Look program is limited to this single jurisdiction.  Like David Black, most of the offenders being considered for early release were convicted of horrendous crimes of violence.  Attorneys representing the government appear to resent the Second Look process.  If a jury believed a crime deserved forty-years-to-life, they reason, that verdict should stand.  Without exception, government attorneys oppose early release applications regardless of circumstance.

When Mr. Black got his day in court, attorneys representing the government argued he should spend another five years behind bars before being considered for parole.  David’s disciplinary record was exemplary, but he had been convicted of a terrible crime.  Moreover, he has proclaimed his innocence from the day he was arrested in March of 1997.  From a prosecutorial perspective, anyone who claims innocence after being arrested, indicted, tried, convicted, and sentenced is accusing the government of major malfeasance. They take it as an insult.

But the Second Look Act was framed by criminal justice reform advocates, people who believe the system can break down.  Men and women are wrongfully convicted every day.   And every wrongful conviction represents a perfect storm of incompetence and indifference.  There’s no polite way to put it.

When David called me up a few days ago, he wasn’t giddy with excitement.  He was having a hard time celebrating his freedom, he said, because, in the eyes of the world, he was still the guy who mowed down an elderly Asian community activist in broad daylight.  “I can’t breathe easy,” he told me, “until I clear my name.  You can’t imagine what it’s like sitting there in the courtroom hearing all these people lying about you.  And then you have to sit in a prison cell for twenty-six years knowing that you didn’t do the crime.  My goal has never been to get out of prison; I want to prove my innocence.  That’s what I’m thinking about when I go to bed, and that’s my first thought when I wake up in the morning.”

To date, I have published eight posts related to the wrongful conviction of David Black.  If you want to take a deep dive into the details, you can find it all here, here, here, here, here, here, here and here.  In this piece, I will just be hitting the high points.  In conclusion, I will address the elephant in the room: if David didn’t shoot Alice Chow, who did?

Building on a mistake

Our earliest account of what happened at approximately 2 pm on February 2, 1997 comes from the Washington Post.  Immediately after the sound of gunfire shattered a pleasant Sunday afternoon, eye witnesses saw a Black man chasing another Black man across K Street.  Having little else to work with, investigators took hold of this morsel of information and built a case around it.  There was a shooter and a runner; and the shooter must have been aiming at the runner.  All the police had to do to solve the crime was to identify the shooter and the runner.  Simple as that.

Moments after the shooting, and at trial, street witnesses told a simple story.  It was quickly determined that the runner was Darrell Haskell, a disabled military veteran, wearing his old military fatigues, who had been running errands for elderly residents.  The man chasing Haskell was Christopher Stargill, an assistant pastor with the Lilly Memorial Baptist Church.  The story never changed.  Haskell crossed K street and ran into the parking lot behind the Museum One Apartments, a high-rise complex dominating the corner of 4th and K Streets (you’ll see a diagram in a minute or two). 

When Reverend Stargill realized that police officers were on the scene, he abandoned his chase and told them everything he knew.  He had heard a shot, he saw a man fleeing the scene, he gave chase.  A few moments later, Darrell Haskell was apprehended in an apartment on the third floor of the Museum One apartment complex.  After several hours of interrogation at police headquarters, investigators concluded that Haskell had no connection to the shooting.  He was released.

Yet the shooter-runner story lived on.

A complete disconnect between theory and testimony

According to the theory of the crime advanced at trial, the incident began with David Black and James (“June Bug”) Smith shouting at each other on K Street.  They were standing on the driver’s side of a blue compact car that was parked immediately across the street from Lilly Memorial Baptist Church.  Jurors learned that when June Bug took off running, Black ran to the passenger’s door of the car, took a pistol from the glove compartment, and fired two shots in the general direction of a fleeing June Bug.  One of these shots struck Alice Chow as she crossed K street on her way home from church. 

Jurors also heard from three women who were standing on the sidewalk just across from where the raucous argument between Black and June Bug was supposedly taking place.  They didn’t see a blue car.  They didn’t see David Black.  They didn’t see June Bug running even though, if the government’s story had him passing within ten feet of them.  This diagram should give you a feel for the crime scene. The building that borders 4th and K Streets is the Museum One apartment complex.

For David Black Freedom Isn’t Enough

In this diagram, the blue circle represents the position of the blue car from where, the fatal shot was allegedly fired.  The large arrow illustrates the direction of June Bug’s flight.  The blue star marks the position of the three women who were standing outside the Baptist church.  The thin arrow at the crosswalk shows where Darrell Haskell crossed K Street (and where, according to the government’s theory of the crime, Alice Chow was located when the bullet struck her).  The blue X shows were street witnesses and police officer testimony placed Ms. Chow at the time of death.  Finally, the

David Black Freedom Isn’t Enough
 symbol (upper right) marks the position of apartment 305 where Darrell Haskell was eventually apprehended.  (Notice that the Museum One building borders both K and 4th Streets.)

At trial, the three women standing outside Lilly Memorial Church, and all the police officers who witnessed the crime scene, insisted that Ms. Chow fell approximately 30 feet from where the women were conversing, at least 200 feet from where the official account placed her.

The prosecutor told the jury that the victim was crossing at the crosswalk.  It was the only way to explain how a bullet fired from the victim’s right side could enter the left side of her chest.  When a prosecutor ignores the unanimous testimony of his own witnesses to make his theory of the crime work, we have a problem.  When Ms. Chow died, the worship service she attended that morning had been over for an hour and a half.  She wasn’t walking home from church; she was walking to the community center.  We know this because she went there every day.  This explains why the street witnesses all have her walking west toward 5th street. 

How David Black became a suspect

James “June Bug” Smith told a grand jury that he wasn’t at the scene of the crime on February 2nd.  Therefore, he couldn’t have been beefing with David Black.  At the moment he learned David Black had been arrested, June Bug told the prosecutor, he realized a terrible mistake had been made.  David Black and June Bug both lived in Sursum Corda, a low-income, high-crime neighborhood located a couple of blocks east of the crime scene.  Early in the investigation, police had asked June Bug if he knew anyone who drove a blue compact car.  He mentioned a guy who went by the nickname “Black”.  That was his nickname, not his surname.  June Bug explained to the prosecutor that he definitely wasn’t referring to David Black.

When investigators searched their database for a guy living in Sursum Corda named “Black”, David’s name popped up.  Most of the young men from that neighborhood passed through a phase when they were either using crack cocaine, selling it, or both.  David was a seller; June Bug was a user.  This helps explain why investigators weren’t bending over backwards to protect David’s civil rights.  It also explains why they didn’t apologize when, in a failed attempt to arrest David, they broke down the door of the wrong home.  A woman who was terrorized by the incident sued the police department, but the case was dismissed.  Apparently, no one who lived in Sursum Corda deserved an apology.

The prosecutor ignored June Bug’s clarification.  Everyone knew that residents of Sursum Corda couldn’t be trusted.  Which is why neither the prosecutor nor the jury believed David’s family members when they testified that David had been at a birthday party when the shooting happened. 

Once the police had identified both the runner and the shooter, they just needed to find eye witnesses, and that’s where the investigation really went off the rails.

A police-generated crime theory

Eventually, the lead investigator in the case found two witnesses who were willing to identify James “June Bug” Smith as the runner and David Black as the shooter.  Larry Johnson and Barbara Marshall both testified at trial that they had seen Rob (David’s nickname) and June Bug beefing across the street from Lilly Memorial Baptist Church.  Both witnesses saw June Bug take off running, and watched as Rob fetched a pistol from the blue car and fired it in June Bug’s direction.  Five minutes later, Black got into the blue car and drove away.

Neither Larry Johnson nor Barbara Marshall volunteered this information to the police.  Instead, the police described the scene for their witnesses and simply asked Larry and Barbara to corroborate their theory.

Both witnesses had lived in and around Sursum Corda for several years.  Court documents make clear that Larry and Barbara were both crack users.  Larry’s erratic behavior got him banned from the Museum One Apartments several days before the incident.  This meant he was in the building illegally.  In addition, Larry was facing a laundry list of criminal charges and had missed a series of court dates.  Records indicate that Larry Johnson approached the police in the immediate wake of the crime.  His motivation is obvious.  He was hoping to swap information for lenient treatment. 

Unfortunately, Larry had nothing of substance to offer the police.  Realizing that the police had already bought into the runner-shooter theory, Larry identified June Bug as the runner. On the day of the crime, he fingered Darrell Haskell (the man in military fatigues who was running errands) as the shooter.  But when the police decided Haskell wasn’t their man, Larry Johnson placed the gun in the hands of several other Sursum Corda residents.  Police weren’t having it.

Although their sole witness was a wanted criminal who couldn’t open his mouth without telling another lie, the chief investigator in the case kept him out of jail.  Instead, Larry was placed in a halfway house designed for inmates serving the final months of their sentences.   Larry spent every evening in the halfway house, but was free to wander during the day. In theory, this was so Larry could spend his days digging up useful information.

Just as the chief investigator was about to cut Larry loose, June Bug told the police about a guy named “Black” who drove a blue car.  When David Black was arrested in March, the investigator placed his picture into a photo array and asked Larry Johnson to identify the shooter. David Black was the only resident of Sursum Corda in the array; the other faces were complete strangers.  Larry didn’t know David by name, but he had seen him around the neighborhood.  So Larry pointed to David’s picture. 

When two police officers showed up at Barbara Marshall’s Museum One apartment, she said she hadn’t seen anything.  Larry Johnson had spent the night with her and, when she saw all the police officers swarming the property, she panicked.  She knew Larry had been banned from the building.  She knew he was facing felony charges.  So she escorted him to the elevator.  

The day after Larry identified David Black as the shooter, Barbara Marshall was escorted to police headquarters.  During an interrogation that stretched from morning to evening, Marshall stuck to her original story.  Finally, the lead investigator showed her a picture of David Black and a picture of June Bug and asked her if she had seen person A shoot at person B.  Realizing she wouldn’t be going home until she corroborated the official story, Barbara eventually explained, she caved to pressure. 

Witnesses that define “unreliable”

On the first day of David’s trial, Barbara Marshall told an investigator working for the defense that she had lied to the police.  About everything.  She knew David from Sursum Corda, but hadn’t seen him the day of the crime.  She had escorted Larry to the elevator and retreated to her apartment, remaining there until the police arrived.  After signing a statement to this effect, Barbara left the courthouse.  She had to be located, arrested, and hauled to the courthouse to testify.

Larry Johnson’s behavior was equally bizarre.  In April of 1997, on the verge of his scheduled grand jury testimony, he went AWOL from the halfway house.  Upon arrest, Larry was escorted to the courthouse to testify before the grand jury.  Returned to the halfway house to await trial, Larry escaped custody a second time.  Only then was he taken to a proper jail. 

When David’s trial began in December of 1997, Larry struggled to keep his story straight.  He couldn’t remember David’s name.  He testified that he was inside apartment 305 when the shots were fired and didn’t see who fired the gun.  Threatened with perjury charges, he tried to return to the official story, but couldn’t remember what it was until reminded by the prosecutor.

Barbara’s testimony followed a similar pattern.  When the defense attorney asked if she had recanted her testimony, she admitted that she had.  But she recanted her recantation when the prosecutor threatened to charge her with perjury.

James “June Bug” Smith had been subpoenaed to testify for the defense, but was never called.  It is likely that the defense attorney doubted anyone would believe a confessed drug addict from Sursum Corda. 

A stake through the heart of the government’s case

When I started my research, I assumed that apartment 305 (from which Larry claims to have seen David and June Bug fighting) and apartment 611 (where Barbara lived) were both located on the K Street side of the Museum One building. 

For David Black Freedom Isn’t Enough

The Museum One apartment complex is composed of two wings, one parallel to 4th Street NW, and the other parallel to K Street NW.  Barbara Marshall claimed to have heard a commotion as she stood in the hall outside of apartment 611 (represented by the pointed cross).  Larry Johnson testified that he saw David and June Bug beefing on the street when he looked out the window of apartment 305 (marked by the crossed circle).  I had always assumed that apartments 305 and 611 were located on the K Street side of the complex. 

But when I Googled both addresses, the cursor was on the 4th Street side of the building.  Sure that Google Maps had hit a glitch, I called up the operator and asked if 305 and 611 were located on the K Street side or the 4th Street side.  “They’re both on the 4th Street side,” she answered without hesitation.  When I asked if that would have been true back in 1997, the operator assured me that the apartment numbering hadn’t changed since the building was first constructed.

If this is true, residents of the 4th Street side of the building couldn’t have heard or seen anything happening on the 4th Street side of the building.  If the witnesses had wandered to the west end of the K Street side, they may have been able to see two men fighting.  Even then, however, the distance would have rendered facial recognition impossible.  But residents on the 4th Street side of the building would not have been alerted to an altercation unfolding on the K Street side.

This new piece of information invalidates the testimony of Larry Johnson and Barbara Marshall.  It gets worse. Court documents reveal that police officers visited Ms. Marshall at her apartment on more than one occasion.  This means they realized that apartments 305 and 611 were on the 4th Street side of the Museum One complex.  When Barbara told them she had seen and heard nothing, she had to be telling the truth. The official story is a physical impossibility.

Ineffective Assistance of Counsel

Everything I have told you about the case can be discerned from official documents that were available to defense counsel prior to trial.  But it took me over two hundred hours of careful investigation to dissect this legal trainwreck.  If David’s defense attorney had invested that kind of time in this case, the government’s case would have been reduced to a smoking ruin.  But he didn’t.

The transcript of a pre-trial hearing held days before trial, shows David’s attorney leafing through discovery materials he was seeing for the first time.  The documents had likely been in his possession for weeks, but he had been too busy to give them any attention.  Defense attorneys survive by taking as many cases as possible and negotiating plea bargains as quickly as possible.  In the unusual event that a case goes to trial, there is no time left over for a proper investigation. 

That said, it’s difficult to understand why James “June Bug” Smith wasn’t called to the witness stand.  Sure, the prosecutor would have asked all the embarrassing questions about June Bug’s drug use and criminal history, but at least the jury would have heard someone take issue with the heart of the government’s theory of the crime.  June Bug had no reason to lie on the defendant’s behalf?  If someone tried to murder me, I want to see them behind bars for as long as possible.  If the government’s theory was legitimate, June Bug would have been the prosecutor’s star witness.

Unable to attain a unanimous verdict, David’s jury informed the judge that they were hopelessly deadlocked.  Told to keep deliberating, they eventually voted to convict.  Would June Bug’s testimony have tilted the jury in the opposite direction?  I suspect so, but we will never know.

If David Black didn’t pull the trigger, who did?

A few days after Alice Chow died, a young Asian woman was beaten and robbed just around the corner from where Ms. Chow fell.   Brad “Dirty Reds” Cummings was arrested for the crime.  While in custody, Cummings was also indicted for the murder of Chow Yung Ng. A couple of months before the Chow murder, Cummings entered a Chinese restaurant and asked for a glass of water.  Mr. Ng graciously escorted his customer to a table whereupon Cummings pulled out a knife and stabbed Ng to death. 

Does this prove that Cummings was the gunman?  Not at all.  But he had committed two violent crimes in Chinatown, both against persons of Asian descent, before and after the killing of Alice Chow.  Unlike David Black, Brad “Dirty Reds” Cummings was capable of senseless and wanton violence.

This theory of the crime is strengthened by the fact that there was a vacant lot just to the left of where Alice Chow was walking.  When we remember that the bullet entered her left armpit as she approached the church, it is virtually certain that a hidden assailant fired two shots from this vacant lot, then calmly sauntered away. 

Was Cummings ever considered in connection with the murder of Alice Chow?  There is no evidence that he was.  The chief investigator was too busy looking for a runner and a shooter to consider other possibilities.

A quest for justice continues

David Black survived over a quarter-century of prison life.  He grew up by growing up and lived smart.  In time, he became a wise soul; the kind of man that can talk sense to young offenders looking for trouble.  David’s primary goal has never been to get out of prison; he wants the government of these United States to own up to the cynical indifference that robbed him of his liberty.

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