On July 28, 1992, a gunman robbed a convenience store in Milwaukee, Wisconsin. Armed with a chrome pistol, the robber took cash from the 56-year-old cashier, Ilene Retzlaff, and 31-year-old store manager Daniel Kollath. He then fled to a waiting getaway car driven by an accomplice.
Shortly after the robbery, the gunman and the driver were seen a few blocks away abandoning the car and getting into a white Pontiac driven by a third person. Later that day, police stopped a white Pontiac. Inside the Pontiac they found Mark Smith, Larry Ross, two handguns and $200. One of the guns was chrome and was discovered in Smith’s pocket.
During questioning, Milwaukee police said Smith, after providing several phony alibis, claimed he was a lookout during the robbery and Ross was an accomplice.
Kollath, the convenience store manager, viewed a lineup containing Smith and Ross and picked someone else, saying that “discounting the hair” he was positive that person—not Ross or Smith—was the gunman.
Three days after the robbery, Smith, the co-defendant who had already confessed to the robbery, was shown a photograph of 30-year-old Warren Goodman, who had a prior conviction for robbery in Milwaukee. Smith did not identify Goodman as a participant in the robbery.
Later, however, Smith met with a Milwaukee County prosecutor and reached an agreement to plead guilty to one felony and testify against his co-defendants, in exchange for a prison sentence that would run concurrent with a sentence he had received when his parole for a prior offense was revoked because of his participation in this robbery. In his dealings with the prosecutor, Smith implicated Goodman as the gunman.
Police then performed a second identification procedure with the convenience store manager, Kollath. The police showed him a photographic lineup and he identified Goodman. Kollath later also identified Goodman in a live lineup.
Retzlaff, the cashier, also viewed the live lineup, but she did not choose Goodman. Instead, she chose someone else who was not a suspect in the robbery.
Smith pled guilty as agreed, with the intention of testifying against Ross and Goodman. Ross then pled no contest to robbery and was sentenced to 17 years in prison.
In the meantime, the state moved to revoke Goodman’s probation, which he was serving for a 1983 robbery conviction. At the probation revocation hearing, in December 1992, Ross testified that Goodman was not with him on the day of the robbery and he had not seen Goodman since they were in prison together years earlier.
Goodman went on trial in Milwaukee County Circuit Court in January 1994. Smith and Kollath both identified Goodman as the gunman. Retzlaff testified that she never identified Goodman as the robber. She also testified that she told police immediately after the robbery that she had gotten a good look at the gunman.
Goodman testified in his own defense and denied participating in the crime.
On February 7, 1994, the jury was unable to reach a unanimous verdict in and a mistrial was declared.
Before Goodman was brought to trial again, Smith was sentenced—pursuant to his deal with the prosecution—to six years in prison.
When Ross learned of Smith’s deal, he contacted the prosecutor “asking for your help in considering me for a time cut, as in the same consideration you gave my co-defendant Mark Smith.” Ross reached an agreement to testify against Goodman in Goodman’s second trial in return for a sentence reduction. Ross also identified Percy Sallis as the driver of the first getaway car.
Sallis was arrested, pled guilty and agreed to testify against Goodman.
Goodman went on trial a second time in the fall of 1994. Smith, Ross, Sallis and Kollath all identified Goodman as the gunman, but there were inconsistencies in their testimony. For example, Ross claimed he met Sallis through Goodman, but Sallis said he had never before met Goodman until the robbery.
Goodman’s attorney failed to subpoena Retzlaff, the victim who never identified Goodman, prior to the trial. When the trial began, Goodman’s attorney discovered that she was out of town on vacation, so she did not testify. The trial judge refused to allow any evidence that she chose someone else instead of Goodman in the lineup.
Goodman’s attorney also failed to obtain a copy of Ross’s testimony at his parole revocation hearing in which he said that Goodman was not involved in the robbery.
The defense attorney also failed to object after the prosecution made misleading statements during the examination of Ross, indicating that the state had not provided any benefit for Ross’s testimony, when in fact, the prosecution had agreed to recommend a reduced prison term. Likewise, the defense attorney failed to object when the prosecutor falsely characterized the evidence during closing argument, saying that Sallis could not have been charged without his confession—even though Ross had named Sallis as an accomplice before Sallis confessed.
On October 21, 1994, a jury convicted Goodman of armed robbery and possession of a weapon by a felon. He was sentenced to 22 years in prison.
In January 1995, Sallis was sentenced to six months in a prison work release program and Ross’s 17-year sentence was reduced to 12 years.
Goodman filed a motion for a new trial in 1995, contending that his trial attorney had provided an inadequate legal defense by failing to call Retzlaff as a witness, failing to impeach Ross’s trial testimony with his prior testimony at Goodman’s parole revocation hearing, and failing to object to the prosecution’s false statements.
The motion was denied in December 1995 and the Wisconsin Court of Appeals upheld the denial in 1997.
In May 2000, Goodman filed a federal petition for a writ of habeas corpus, but the petition was dismissed in September 2004.
In October 2006, the Seventh Circuit U.S. Court of Appeals reversed the dismissal and ordered a new trial. The court vacated Goodman’s convictions, citing a “catalog of errors” by Goodman’s trial lawyer, including bungling the questioning of Goodman so badly that evidence of Goodman’s prior convictions for armed robbery more than a decade earlier were admitted in evidence, failing to cross-examine Ross about his denial of Goodman’s involvement, and failing to object to false statements by the prosecutor.
On February 7, 2007, Goodman was released from prison on bond. On February 21, 2007, the prosecution dismissed the charges.
– Maurice Possley