 Artis Whitehead (Photo: Tennessee Innocence Project)
Arnold grabbed for the gun, and it went off. Arnold and the robber then went into the office. The robber demanded that he open the safe, but Arnold said he did not know the combination. The robber ripped out a telephone cord, ordered Arnold to the floor and tied him up.
Not long after, 26-year-old Lakina Pree, the club’s purchasing manager, came downstairs looking for Arnold. When she opened the office door, the robber stuck the gun in her face and demanded that she open the safe. When she said she couldn’t, he ordered to get on the floor, and kicked her in the back, breaking a vertebra in her spine. The robber then tied her hands and feet with phone cords.
James Johnson, who had delivered produce, went looking for Pree for payment and wound up in the office as well. As did Christy Miller, the club’s marketing and sales director, and Mark Hearn, a stock clerk, who had walked to the basement to use the bathroom.
The robber repeatedly ripped cords out of phones to tie them up. At one point, Arnold managed to free himself. When he tried to subdue the robber, Arnold was shot in the head. The bullet did not pierce his skull, but blood spattered everywhere. The robber re-tied Arnold.
The robber was angry that no one could open the safe. He took $500 from Arnold’s wallet. He took two rings, one worth $1,500 and the other $2,000, as well as a $2,500 wristwatch from Miller. He took a three-carat diamond ring worth $2,500 from Pree. The robber complained that he needed a car..
The employees told the robber that only Ray Spence, the club manager, had the combination. Finally, the robber grabbed a black bag which contained tickets for an upcoming B.B. King performance and left the office. Near the rear entrance to the club, the robber saw Spence, who was arriving for work.
“You must be Ray,” the robber said, and followed Spence to a coffee area just inside the back door. The robber put a hand on Spence’s shoulder, pointed the gun at him and told Spence to “do the right thing.”
The downstairs at the club was later described as a maze with various hallways and two separate access stairs to the basement from the first floor. As Spence walked toward the back stairs, he saw that the robber had gotten distracted. Spence ran through a door to the staircase and slammed the door behind him. The robber then left the club.
Meanwhile, the employees had managed to untie themselves. Arnold called 911. Hearn ran upstairs and reported that the club was being robbed. Police arrived at 9:15 a.m.
Police got descriptions from all of the victims as well as Spence and two other club employees who reported seeing the man with the Home Depot box in his hand prior to the robbery.
The descriptions were similar: Black male, 35 to 40 years old, 5 feet 4 inches to 5 feet 8 inches tall, 140 to 170 pounds, with a beard and a small mustache. He was wearing black or gray jeans, a black hat, and sunglasses with silver in the frames. All said the robber had a slim build. Hearn helped police create a composite sketch.
A half-dozen tips were called in to Crime Stoppers that month, including one that accused Hearn of being involved. On May 14, 2002, a local television station aired a segment that included a re-enactment of the robbery. Police said that because the robber had managed to maneuver through the maze-like layout of the basement, they believed that the robber was “definitely someone that had knowledge of what’s going on at that time of the morning.”
For several weeks after the crime, police scrutinized the homeless population near Beale Street. At one point, a man who was questioned and eliminated as a suspect said he had heard that “it was a bald-headed guy” who committed the crime. Police then focused on bald men as suspects.
Little was done on the case in the months after June 2002.
On November 14, 2002, police arrested 41-year-old Gregory Jones for armed robberies of two Burger King restaurants in Memphis. On October 25, 2002, a man with a revolver ordered the manager to open the safe in a Burger King, or he would kill her. The man escaped in a Cadillac with $1,500. On November 4, 2002, a gunman escaped with $5,000 after ordering an employee in a different Burger King to open the safe under threat of death. The robber’s car, a Cadillac, would not start, so the robber fled on foot. In the car, police found Jones’s wallet.
Police soon discovered that Jones was on federal parole for other robberies. The Burger King robberies were filed in federal court where Jones faced more than 500 years in prison if convicted.
Memphis Police Sgt. James Howell, a detective in the robbery section, would later testify that Jones began calling him as often as two or three times a week, saying that he had information that could be used to solve other crimes. Howell later said, “Mr. Jones would call me on the phone and ask if he could come up and sit. That sitting in jail was driving him crazy. And if I had time, I would bring him up and I would sit him in the interview room.” Jones was allowed to drink soda and hang out.
On January 24, 2003, at 3:04 p.m., Crime Stoppers received a telephone tip naming 38-year-old Artis Whitehead as the gunman in the robbery. Whitehead had a prior record—he had been convicted of a murder conspiracy in federal court in North Carolina. On January 25, 2003, Howell created a photographic lineup. William Arnold viewed it, but did not make an identification. On January 27, Christy Miller viewed the lineup and was unable to make an identification. She said Whitehead’s face was “too full.”
On January 28, 2003, Lakina Pree viewed the lineup and identified Whitehead as the robber. On January 31, 2003, police arrested Whitehead.
On February 1, 2003, Ray Spence viewed a different photographic lineup with Whitehead wearing different clothing. Spence identified him as the robber.
Whitehead retained attorney Howard Wagerman to represent him. At a preliminary hearing on March 17, 2003, Pree and Spence testified, and both identified Whitehead in the courtroom. They both acknowledged that Whitehead, who was 6 feet 1 inch tall and weighed more than 200 pounds, appeared to be bigger than the robber.
In November 2003, Whitehead went to trial in Shelby County Circuit Court. He was charged with five counts of especially aggravated kidnapping, two counts of aggravated assault, two counts of aggravated robbery, two counts of especially aggravated robbery, and one count of attempted aggravated robbery.
The prosecution introduced photographs of the club, the composite sketch, and the photo lineups. It also introduced items seized from the scene, including tickets, sunglasses and business cards, and medical records from Pree and Arnold, as well as boots, a shirt, two hats, and a head covering that had been taken from Whitehead’s house following a search. A grainy surveillance tape was presented, although the robber’s face was not visible.
A fingerprint analyst testified that fingerprints had been recovered at the scene, but Whitehead had been excluded as the source. The clothing from Whitehead’s house did not resemble the clothing descriptions provided by the victims.
None of the physical evidence linked Whitehead to the crime.
Pree and Spence both testified and identified Whitehead as the robber. They conceded that Whitehead looked different—he did not match the physical description of the gunman.
Pree admitted that when she was first confronted, the robber put the gun in her face. She said this was stressful and traumatic and lasted about 15 seconds. She said the robber grabbed her and kicked her to the floor. While on the floor she saw the side of his face. She said that at most she saw him for a total of about 60 seconds. She acknowledged that at the time of the crime, she said the robber was 5 feet 4 inches tall and weighed 135 pounds. She conceded that Whitehead was “a little more bulked up here” in court.
Spence testified that his viewing of the robber lasted even less time, perhaps as short as 30 seconds. Spence testified that he assumed the robber was in the photographic lineup. Asked whether he was influenced to pick someone from the lineup or if he knew that the robber was in the lineup, Spence testified, “No—you know, I feel like I’m an intelligent person, so I had to assume that after a few months of not doing [a photo lineup], there might be a reason to do one, so I was optimistic.”
At the preliminary hearing Spence had said Whitehead was “beefier” than the robber. He told the jury that Whitehead was bigger than the robber. He said the robber had curly hair just below the ear level and conceded that Whitehead was bald at the time he was arrested.
The other victims, all of whom were unable to identify Whitehead, testified that the robber was slimmer and shorter than Whitehead.
Miller said the robber had a “slim build” and was 5 feet 8 inches or 5 feet 9 inches. She agreed that Whitehead had a “stocky build” and was taller than the robber.
Hearn said the robber “wasn’t no [sic] big guy. He wasn’t big at all.” Asked if he could identify Whitehead, Hearn said. “I don’t know if that’s him,” adding that the robber wore sunglasses and a hat.
Arnold, the chef, described the robber as “average, average, average” with a “lean” or “wiry” body type. He described Whitehead as “bulked out, in shape, muscular.” Asked if he would describe Whitehead as “average, average, average,” Arnold replied, “Doesn’t seem to be an average guy. No.”
Johnson, the produce delivery man, said the robber was about 150 pounds. Johnson, who was 6 feet tall, said he was taller than the robber, but not by much. Shown his statement right after the crime in which Johnson said the robber was between 5 feet 6 inches and 5 feet 8 inches, Johnson agreed his memory would have been better back then.
About mid-way through the trial, one of the prosecutors, Amy Weirich, reported to the judge that Whitehead’s attorney, Wagerman, worked in the same office as Scott Hall, who was then representing Jones in federal court on the Burger King robbery charges.
Weirich said that Lorraine Craig, the federal prosecutor in the Burger King case, had formerly worked in the Shelby County District Attorney’s Office, and happened to come to the courthouse on an unrelated matter. Weirich reported that Craig “advised that this defendant [Whitehead] was developed as a suspect in this case by an individual by the name of Gregory Jones. When Gregory Jones was up in the robbery office on another unrelated matter, he saw a picture of the defendant and said, ‘I know that guy. And from that—that is a Crime Stopper’s tip that they got—they got a picture of the defendant from his federal parole officer and they put him in a photo spread, and that’s when the people began identifying him.”
Weirich continued that she was concerned that there was a conflict because Wagerman and Hall, who was Jones’s attorney, worked in the same office.
“Is he still in your office?” the judge asked.
“He is in my office, Judge,” Wagerman replied.
“In fact, he’s been in this courtroom,” the judge said.
“Watching this trial,” Wagerman said.
Wagerman said he did not know Jones, was unsure how Jones’s actions would affect Whitehead, and he confirmed that Hall did not work on Whitehead’s case.
Weirich then revealed that she had been informed that Jones’s federal charges were going to be resolved. She said, “[A]nd I’m never clear on how they actually dispose of cases and when that happens, but that his disposition there—some of that was based on his [Jones’s] assistance in this matter.”
Wagerman asserted that the lawyers in his office were independent contractors. “We have Chinese walls, and if there is a conflict—but I wouldn’t even know this could be a conflict, and it’s not….I mean, I’m not affected, in any way, about whoever Mr. Jones is and what his case is about or what he’s done.”
The trial then continued. Jones was not called as a witness. Wagerman did not investigate Jones’s role in the case.
The defense focused on showing that Whitehead did not fit the description of the robber. Randy Nance, a janitor at the club who testified that he and a co-worker walked past the robber as the robber was talking with Spence on the day of the crime, said the man was shorter than Nance, who was 5 feet 10 inches tall. Nance said the robber was about 5 feet 6 inches or 5 feet 7 inches tall and weighed about 140 pounds.
Whitehead’s mother, Juanita, as well as his fiancé, testified that Whitehead was 6 feet 1 inch tall, over 200 pounds, and bald at the time of the crime. His fiancé said he was a habitual weightlifter who worked out three to four times a week. “He’s always been big,” she said.
Although Wagerman had filed a notice of alibi prior to the trial, he had withdrawn it by the time the trial began.
On November 14, 2003, the jury convicted Whitehead of all the charges. Prior to sentencing, Wagerman withdrew, acknowledging the conflict of interest. In a letter to Whitehead, Wagerman said that he knew “at some point” during his representation of Whitehead that Hall had represented someone who had provided information in Whitehead’s case.
Ultimately, the judge imposed consecutive sentences on the charges which added up to 249 years in prison.
In May 2006, the Tennessee Court of Appeals upheld the conviction and sentence. The conflict of interest was not raised during the appeal.
Whitehead, acting as his own lawyer, filed a petition for post-conviction relief in 2008. The petition was dismissed as being filed too late. In 2013, the case was sent back to Shelby County Circuit Court. A petition for DNA testing was granted in 2020 as well as a petition for fingerprint examination in 2022. Neither provided any evidence of an alternate suspect. Neither provided any evidence linking Whitehead to the crime.
In June 2023, Jessica Van Dyke and Jason Gichner, attorneys with the Tennessee Innocence Project (TIP), filed an amended petition for post-conviction relief. The pleading, consisting of a 75-page petition and nearly 600 pages of exhibits, detailed how the prosecution had failed to disclose that Jones made the Crime Stoppers tip from the cell phone of Sgt. Howell in the robbery unit.
The prosecution also failed to disclose that Jones had a prior felony record, that he gave information implicating Whitehead as well as others in other crimes, including an attempted bank robbery during which a guard had been killed. Jones’s information in the bank robbery/murder had been false. No one had been charged.
In addition, the prosecution did not disclose that Jones sought a reduced sentence after pleading guilty to the Burger King robberies. That reduction request had been denied, and Jones was sentenced to more than 44 years in federal prison.
Moreover, the prosecution had not disclosed that Jones eventually had been paid $900 for the Crime Stoppers tip.
The petition also cited two experts on eyewitness identification—Dr. Jeffrey Neuschatz and Dr. Margaret Bull Kovera. Both said that numerous factors were present which caused the identifications of Whitehead to be unreliable. These included the presence of a weapon, the short duration of the time spent looking at the robber, and the stress of the situation.
Dr. Neuschatz noted, “Every single witness provided a description that did not match Mr. Whitehead.”
The petition also presented a report from Jack Ryan, a former captain in the Providence, Rhode Island police department and an expert on police procedures, who said that having Jones call Crime Stoppers and then asserting that the tip was from an anonymous informant was improper.
The petition said the police department’s attempt to hide the tip “was insidious. Had Gregory Jones and Artis Whitehead not been represented by attorneys in the same firm and had U.S. Attorney Lorraine Craig not alerted anyone to the conflict, the true identity of the anonymous ‘Crime Stopper’ would have never been discovered. In other words, hiding informants in a Crime Stoppers tip was an excellent way for law enforcement to shield a problematic informant and the informant’s motives for cooperating.”
The petition also said Whitehead’s trial attorney had provided an inadequate legal defense by failing to call alibi witnesses who could have said Whitehead was at work at the time of the crime, by failing to call expert witnesses on eyewitness identification, and by failing to investigate Jones once the existence of Jones became known.
The petition noted that Jones had admitted that he falsely implicated Whitehead in an attempt to get a reduced sentence in the federal robbery case. He knew Whitehead, he said, because they had dated sisters.
In addition, Lakina Pree, one of the two witnesses who identified Whitehead, said she was never sure. In 2017, Pree provided a statement saying, “[L]ooking back, I feel that emotions and being scared, looking at all the pictures blended in and I felt Mr. Whitehead was the person that was there. At the present time, I feel it could have been human error in making the judgment of picking Mr. Whitehead out of the lineup.”
The petition cited a report from two attorney conduct experts who concluded that Wagerman had a conflict of interest that Whitehead could not waive.
The petition noted that Whitehead’s conviction “condemns him to die in prison with no possibility of parole.”
Two days of hearings were held in September 2023. On December 15, 2023, Judge Jennifer Fitzgerald issued a 93-page ruling granting Whitehead a new trial. The judge ruled that the prosecution had failed to reveal that Jones was the source of the Crime Stoppers tip, that he had been paid $900 for it, that he had implicated Whitehead to try to get lenient treatment in his federal case, and that he was a convicted felon.
“[T]he court concludes that Gregory Jones lied when he told detectives that [Whitehead] participated in the B.B. King’s robbery,” Judge Fitzgerald ruled. “Mr. Jones had no information that [Whitehead] was connected to the crime.”
The judge noted that unlike the B.B. King’s robbery, the detectives investigated and vetted Jones’s information in the bank robbery/murder case. And after multiple interviews, the detectives concluded that Jones had given them false information.
The judge also ruled that Whitehead’s trial defense attorney had failed to present evidence supporting an alibi for Whitehead and failed to investigate Jones at the time of the trial. The judge said that Wagerman knew a conflict existed and did nothing about it.
“The Court has no confidence in the reliability or sufficiency of the evidence against [Whitehead],” Judge Fitzgerald ruled. “No physical evidence connected him to the crime. There was no proof presented that he had ever been to Beale Street or B.B. King’s or that he knew of the interior of the building or its basement.”
Hours after the judge issued her ruling, Whitehead was released on bond pending a possible retrial. He had spent nearly 21 years in prison since the date of his conviction.
On January 31, 2024, the prosecution dismissed the charges.
“Mr. Whitehead lost decades of his life after being wrongfully convicted of a crime he did not commit,” said Van Dyke, TIP executive director. “TIP has been working on this case for the last four years because we believe in Mr. Whitehead’s innocence. We are grateful that Mr. Whitehead trusted us to fight on his behalf.”
– Maurice Possley
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