 Jerry Davis with Innocence Project New Orleans (IPNO) Legal Director Richard Davis (left) and IPNO investigator Alexandria Cahill (Photo: IPNO)
Davis had been granted a new trial on July 26, 2023, based on evidence he and his legal team from Innocence Project New Orleans had uncovered showing that the prosecution had failed to disclose nearly three dozen pieces of evidence that either pointed to Davis’s innocence or impeached the witnesses who had testified against him.
On August 10, 2023, Davis had been released on bond. He had spent 39 years, six months and 11 days in prison since a jury convicted him on January 31, 1984.
Davis was granted a new trial after a judge ruled that the lead prosecutor in his case, James “Jim” Williams, had failed to disclose evidence pointing to the two main witnesses against Davis–Allen Johnson and Phillip Ware–as the true perpetrators.
This was not the first case in which Williams was found to have done so. He withheld exculpatory evidence in three other wrongful convictions that ended in exoneration: Raymond Flanks, who was exonerated in 2022; John Thompson, who was exonerated in 2003; and Curtis Kyles, who was exonerated in 1998.
Williams was known for keeping a working model of an electric chair on his desk and putting photographs of the faces of the people he prosecuted in the chair. He had sought and obtained death sentences against Thompson and Kyles. He also sought death for Flanks and Davis, but juries had imposed life without parole instead.
The crime that sent Davis to the Louisiana State Penitentiary, known as Angola for the slave plantation upon which it was built and one of America’s most notorious prisons, occurred on May 6, 1983. That evening, Orleans police were called to a trailer park on Chef Menteur Highway after a report of a shooting. They found 58-year-old John Broussard, a veterinarian from Oceanside, Mississippi, with a gunshot wound. He was being tended to by his wife, Bette, a nurse.
The couple had come to New Orleans, Louisiana, to celebrate their 37th wedding anniversary by attending the city’s annual jazz festival and were spending a night in their RV in the trailer park.
Bette told police that John was outside hooking the vehicle up to utilities when she heard him tell someone not to go inside the vehicle. Her first account said she heard a gunshot and then a man came inside, pushed her back, grabbed her purse, and left.
Two witnesses told police that after they heard the shots, they saw two men of about the same height run away from the trailer park.
Despite the efforts of his wife, Broussard died at the hospital. Before he died, he said that the man who shot him then went into the RV.
On June 21, 1983, Allen Johnson, who was awaiting sentencing for a burglary conviction, told police that Phillip Ware was involved in the shooting. The following day, police interviewed Ware and he implicated himself and 24-year-old Jerry Davis. According to Ware, Davis was the gunman. Ware said that he went inside the RV, grabbed Bette Broussard’s purse and fled, but that he did not touch her.
A day earlier, Davis had been arrested on a marijuana possession charge and was still in jail. When police went back to speak to Johnson again, this time, he gave a different account. He said that Davis had admitted to him to being involved in the crime.
On July 7, 1983, Ware and Davis were indicted by an Orleans Parish grand jury on charges of capital murder. Ultimately, Ware agreed to plead guilty to manslaughter in return for testifying against Davis.
Davis went to trial in Orleans Parish District Court on January 30, 1984. The entire testimonial part of the transcript took up just 62 pages.
Unlike her initial statement to police, Bette Broussard testified that Ware came into the RV and took her purse without touching her. After he left, she said, she heard the gunshot. The initial statement had not been disclosed to the defense.
Johnson testified that “some weeks” after the murder, he gave Davis a ride and mentioned Ware. Johnson testified that Davis said that he and Ware “had pulled a robbery in a trailer park.” According to Johnson, Davis said that he told Broussard not to move while Ware went inside to search the trailer. Johnson testified that Davis told him that ”the man must’ve reached for him, and he shot him and they took off.” Johnson testified that Davis talked like “what he did was like a joke.”
Johnson also said that he waited for about two weeks because he “had to think about” it and then contacted the police. He admitted that he had one prior conviction for burglary from 1977. He also admitted that, after he had already implicated Davis, he was arrested for obscenity, but that this charge was to be dismissed in return for his testimony. He denied having other convictions, and he denied ever having “gone to the police with information before” or being known as a “snitch.”
Johnson had told police in his statement that the murder weapon had been taken out of a woman’s purse, which was in a pickup truck while she was getting gas at the Amoco station at Chef Menteur Highway and Dale Street.
Police had determined that a Beretta .25-caliber pistol, with a serial number matching the gun later identified as the murder weapon, was reported stolen from a woman’s makeup bag from inside a purse that the woman had left in her truck as she went to buy gas at the station on Chef Menteur Highway between Reynes Street and Dale Street two weeks before Broussard was murdered. Two weeks after Johnson told police exactly how the murder weapon had been obtained prior to the murder, police recovered the murder weapon from 16-year-old Herman Bernard.
Detective Melvin Winins, the lead investigator, testified that the pistol was retrieved from Bernard. Williams asked, “Do you know how it is [that] Herman Bernard came into possession of this gun?”
Detective Winins replied, “Yes, he got it from Jerry Davis.”
The defense objected to this testimony as impermissible hearsay and moved for a mistrial. The objection was overruled.
Ware testified that he had been charged with first-degree murder, but had pleaded guilty to manslaughter. When asked about his arrest, he testified that Detective Winins “came and he told me that he knew that I had participated in this crime, but he knew that Jerry was the gunman, that Jerry did the shooting. He asked me: What did I have to say? So, I told him that I'd give my statement.”
Ware testified that, on the night of the crime, he was walking with Davis and they went into the campground. He testified that they approached the man he later learned was Broussard and Davis told him: “You look around in the trailer–you go and look around the trailer, and I'll occupy Mr. Broussard.” Ware denied knowing that Davis had a gun. He admitted seeing Bette Broussard in the trailer, but said he “didn’t strike her, or nothing.” He said that he picked up her purse, then heard a shot as he exited the trailer and saw Davis running away.
Ware testified that no one else was there, that he did not shoot Broussard, and that Davis was the gunman. He testified that, when he asked Davis about it later, “[h]e just smiled, and shook his head. Ware testified that he and Davis emptied the pocketbook at McDonough Forty school and split $60.
Ware also testified that he did not have any other convictions.
A firearms examiner testified that the Beretta .25-caliber semiautomatic pistol recovered by police was the murder weapon based on a comparison of the bullet removed from Broussard’s body.
The defense presented no evidence.
In closing argument, Holly Taylor, who prosecuted the case with Williams, told the jury it was “very important” that Johnson did not “have interest” when he came forward. She added, “He has no interest at all. He has no open charges at this point.”
Williams, in his closing argument, told the jury that Johnson “had enough gumption, enough fortitude to come forward, and to try to right a wrong.” Williams added that there was no “reason put forward, or brought out by the defense why he would come here, or why he would go to the police earlier, and lie about what happened.” Williams also said that at the time Johnson gave his first statement to Detective Winins, Johnson “was in no trouble. . . . he had not gotten into the trouble for which we are going to spring him for his testimony.”
Williams told the jury that the purse had never been recovered. He also doubled down on the hearsay and told the jury: “Detective Winins told you where he got that gun from. And, I’m going to trust you to your memories to recall that. He told you exactly where that gun came from.” The defense again moved unsuccessfully for a mistrial.
Williams argued that the accounts from Bette Broussard, Johnson, and Ware were each corroborated by the other. Williams argued that one way that the accounts corroborated each other was that Johnson “gave both of those names [Davis and Ware] prior to the arrest of either one of those people.” Williams also pointed out Bette Broussard’s testimony that Ware “didn’t touch her” as part of the justification for reducing Ware’s charge.
On January 31, 1984, the jury convicted Davis of capital murder. However, the jury declined to impose the death penalty. Davis was sentenced to life in prison without parole. Ware was later sentenced to five years in prison.
Davis’s conviction was upheld on appeal.
In 1994, Davis, through a public records request, was able to obtain the prosecution file. It contained numerous documents that had not been disclosed to the defense prior to the trial. These documents included the report of Bette Broussard that her husband was shot before the man came into the RV. This contradicted Ware’s testimony and suggested that in fact Ware was the gunman. There was an FBI rap sheet for Ware, which suggested he had lied about having no prior convictions. There was a police report of a dying declaration from Broussard that he was shot by the man who entered the RV–indicating that the gunman was Ware.
Davis sought to vacate his conviction based on the evidence that had been withheld, but he was rejected. The trial judge ruled the evidence would not have changed the verdict.
Not long after Innocence Project New Orleans (IPNO) was founded in 2000, Davis sought their help. In 2021, IPNO began investigating the case. It filed more than 100 record requests and interviewed numerous witnesses.
In March 2023, IPNO attorney Richard Davis filed an application for post-conviction relief, citing nearly three dozen records that were never disclosed to the defense prior to Davis’s trial. Some of the documents indicated that Johnson and Ware were the true perpetrators. Documents also showed that Johnson and Ware had lied in their testimony, most specifically by denying that they had other prior convictions. Some of the documents showed that Williams allowed Johnson and Ware to lie without correcting their testimony.
“Mr. Davis’s trial was riddled with false evidence, including evidence that the trial prosecutors knew was false,” the motion said.
“Williams presented Allen Johnson as a witness with one prior burglary conviction from 1977 and no incentives to assist police when he came forward,” the motion said. “In fact, Mr. Johnson had four prior convictions, was awaiting sentencing in a 1983 burglary case, and sought and received sentencing benefits for coming forward. Mr. Williams knew Mr. Johnson’s testimony was false. Within a week before trial, he drafted and circulated a memo that stated that Mr. Johnson had ‘two burglary convictions’ and ‘a long criminal record,’ so he was clearly familiar with Mr. Johnson’s history.”
The motion noted that Williams had presented Ware as a witness with no criminal history. “In fact, Mr. Ware had two prior convictions,” the motion said. “Mr. Williams was aware of at least one of these convictions, as his file contains an FBI rap sheet with a handwritten notation… commonly used by prosecutors to refer to a guilty plea.”
The motion said that Williams had “downplayed” Ware’s culpability by presenting testimony from Ware and Bette Broussard that Ware did not strike her in “any way” while robbing her and never said anything to threaten her, even though Bette Broussard’s first statement to police, as documented in the incident report, said that the perpetrator “demand[ed] her money and purse” and her signed statement said that the perpetrator “pushed her back.”
The incident report and signed statement were both in Williams’s file.
IPNO’s investigation had discovered that at the time of the crime, Johnson had been diagnosed as a violent schizophrenic. The prosecution did not disclose that Johnson had been convicted of burglary in March of 1983 and was awaiting sentencing when he volunteered information to the police on the Broussard homicide. The prosecution did not disclose that Johnson ultimately received no prison time for this case, his second burglary conviction, explicitly in exchange for his cooperation in the case against Davis and Ware.
The prosecution also did not disclose that the two witnesses who heard the gunshots and saw two men flee had described the fleeing men as about an inch apart in height. Johnson was 6 feet tall and Ware was 6 feet 1 inch tall. This evidence was relevant to the defense because Davis was 5 feet 6 inches tall.
The motion said that IPNO had interviewed Bernard, who said that the statement attributed to him was not signed by him. He also said he had stolen the gun from a man named Leroy Jackson to settle a debt, that Jackson knew that Bernard had the gun, and that Jackson told him “the police were looking for it and were going to throw him in jail for murder.”
Bernard also told IPNO that he saw Jackson buy the gun from a man called Allen who was close friends with Ware. “The gun was a 25 and Leroy paid $25 for it,” Bernard told IPNO.
“This means that Mr. Johnson knew exactly where and how the murder weapon was stolen before it was used to kill Mr. Broussard, [that he] sold it shortly before it was recovered by police two months after the crime, and likely told police that Mr. Jackson had the gun,” the motion said.
The motion also noted that the IPNO had discovered that contrary to what Williams told the jury, Bette Broussard’s purse had been recovered. It never, apparently, had been tested for fingerprints.
The Orleans Parish District Attorney’s Office conceded that the evidence had not been disclosed to the defense prior to Davis’s trial. However, the prosecution contended that the undisclosed evidence as well as the failure to correct false testimony by Ware and Johnson had no adverse impact on the case–Davis would have been convicted anyway.
Following a hearing, on July 26, 2023, Orleans Parish Criminal District Court Judge Tracey Flemings-Davillier rejected the prosecution claims. She vacated Davis’s first-degree murder conviction based on the failure by the prosecutors, Williams and Taylor, to disclose evidence favorable to Davis and their knowing use of false testimony.
IPNO attorney Davis said, “Once we strip away the legalese, the bottom line is that the trial prosecutors lied to the jury in order to try and have Jerry Davis killed and, although they failed in that, they still took away forty years of his life. Prosecutors should not have the unchecked power to take or ruin lives like this.”
– Maurice Possley
|