A long path to justice: After a lengthy legal battle, one man regains his freedom
December 20, 2015 12:00 AM
Jim Fogle, the Indiana County man who was exonerated after spending 34 years in prison for murder, takes a call on his cell phone in his one-room apartment in Indiana, Pa.
Karen Thompson, the staff attorney for The Innocence Project in New York who helped to exonerate Jim Fogle.
Dara Gell is a former intern for The Innocence Project in New York City who tracked down crucial missing evidence that led to the exoneration of Jim Fogle.
Karen Thompson, left, the staff attorney for The Innocence Project in New York City who helped to exonerate Jim Fogle, and David Loftis, managing attorney for the Innocence Project, call Fogle from their Soho office.
Indiana County District Attorney Patrick Dougherty talks about dismissing an indictment against Lewis "Jim" Fogle outside the Indiana County Courthouse on Monday, Sept. 14, 2015.
Jim Fogle holds his granddaughter Olivia, nearly 2, outside the Indiana County Courthouse during a press conference in September after District Attorney Patrick Dougherty announced he would not retry him on a charge of second-degree murder.
Jim Fogle, the Indiana County man who was exonerated after spending 34 years in prison, gets nostalgic while looking at a painting he began before going to prison.
By Michael A. Fuoco / Pittsburgh Post-Gazette
Second in an occasional series.
NEW YORK — Inside a Pennsylvania maximum security prison, convicted murderer Lewis Jim Fogle happened upon a newspaper article in 2002 that ultimately ended his life sentence — and restarted his life.
The story told of a longtime inmate in Philadelphia being freed after attorneys for the Innocence Project proved through DNA testing that he had been wrongfully convicted.
The Innocence Project
Attorneys from The Innocence Project talk about the struggle to free Jim Fogle, who spent 34 years in prison after being falsly convicted for the murder of Deann Katherine Long, from their office in New York City.
The Long Murder
More than 30 years ago, the now exonerated Jim Fogle began his life setence in prison for the murder of Deann Katherine Long. Fogle, his attorneys from The Innocence Project, and Indiana County's Distrct Attorney discuss the case.
“Wrongfully convicted? So am I!” thought Jim, who goes by his middle name. “The Innocence Project? Whoever they are, maybe they can they do that for me. I’m innocent, too!”
Since his arrest in 1981, he had been unable to get anyone to believe he didn’t rape and kill 15-year-old Deann “Kathy” Long in Indiana County in July 1976.
An adept jailhouse lawyer, he compiled a 20-page legal brief setting out his case’s facts, discrepancies and contradictions, supplementing it with 80 pages of exhibits.
Jim mailed it with sufficient postage but diminishing hope. The Innocence Project received it at its Manhattan offices on April 18, 2002.
Jim, now 64, couldn’t have known it at the time but he had set in motion a series of actions that would provide the key to his freedom in August after 34 years of imprisonment.
It would take another 13 years and four months for that to occur — and only because of a fortuitous confluence of hard work, luck, surprises, science and a commitment to justice by a lawyer, a law student and a district attorney.
Karen Thompson was 10 when Jim went to jail in 1981. Thirty-one years later, in 2012, they became inexorably linked in a mission to free him.
She was settling in as a new member of six staff attorneys at the Innocence Project in lower Manhattan, perusing the 28 cases she had inherited from her predecessor, Craig Cooley, a Plum native. When she came across Jim’s thick case file, she was fascinated. And hooked.
It had taken seven years for Jim’s case to be accepted for representation, as the project had a backlog of 10,000 inmate requests.
What struck her were the strange circumstances of his case: a five-year lapse between the murder and arrest, no eyewitnesses, no forensic evidence, no connection between Kathy and Jim.
She read of the three jailhouse informants — always a red flag — who testified that Jim confessed to them that he and his brother, Dennis, raped Kathy and he shot her in the head as others stood by. In all, four men were arrested but Jim was the only one to go to trial.
And what’s this? The murder weapon, a rifle, was owned by the victim’s father and found in his home where it always was kept. What?
And, most bizarre of all to her was the reliance of state police investigators on a man who a judge ruled was so unreliable he could not testify. The man, once a suspect himself, gave five different statements about the case over five years. The last one, the first to implicate Jim, was given after he admitted himself to a psychiatric hospital and was hypnotized by an amateur hypnotist.
Nothing here makes sense, she thought.
Mr. Cooley had succeeded in 2010 in having tested all of the evidence that could be found — vaginal, anal and oral slides collected during Kathy’s autopsy — but the results were inconclusive.
Maybe there was more evidence to test, Ms. Thompson thought. How about the clothing Kathy was wearing when her body was found the day after she went missing in July 1976?
In May 2013, she assigned the case to an intern from Yeshiva University’s Benjamin N. Cardozo School of Law: “Look, this guy has been in jail since 1981. I know there is more evidence if we can just find it,” Ms. Thompson said.
She warned that resistance was not uncommon because she would be asking for help from the very agencies they were seeking to show made a mistake.
They called Jim in prison to tell him they were restarting a “deep dive” for evidence. Ms. Thompson thought Jim sounded frail, old and lacking hope. She feared building him up only to have his hopes dashed again.
“I know you’ve been waiting,” she told Jim. “I just want to try to see if we can find other stuff. I can’t guarantee it. All I can guarantee is we’re not ready to let this go until we’re sure there’s nothing left.”
But it wasn’t fine. No one said evidence could be found -- that is, if anyone returned calls at all.
The summer internship drew to a close and, so it seemed, did any hopes of finding evidence for DNA testing. She asked the intern to write a memo about everything that had been done.
Ms. Thompson thought of Jim, the weakness of the case against him, all he had been through. She found him to be an intelligent, scrappy fighter with a dreamer’s heart. She recalled their many telephone conversations about their mutual love of nature, camping and snickerdoodle cookies.
She was adamant: “There’s no way I can close this case.”
The law student
Jim was arrested 10 years before Dara Gell was born but she will forever remember working his case.
Ms. Gell, now 24 and in her final year of law school at Cardozo, interned in 2014 at the Innocence Project and was assigned Jim’s case as one last-ditch effort.
After reading every report of Jim’s case stuffed into six red legal folders, she agreed with Ms. Thompson’s assessment: Something had gone terribly wrong. But how do they prove it?
She regularly spoke on the phone with Jim in allotted 15-minute calls, usually three times a week. They discussed his case and he asked about her school work. He sent her packets of paperwork that he stitched together with thread because he was not permitted staples in prison. As with Ms. Thompson, they bonded.
Still, she wasn’t getting anywhere — nobody had anything.
But one day, while reorganizing the box that contained the thousands of papers of Jim’s case, she came upon reports recently received from a former attorney for Jim who had been contacted by the 2013 intern.
In his file was a document she had never seen before — an inventory sheet for 12 items of evidence including Kathy’s clothing, fingernail scrapings and pubic hair combings. Most important, most unbelievably, the sheet contained the state police evidence inventory number. She immediately called the Indiana barracks.
A corporal checked a computer. “Yeah, we have it.”
Just like that. No hesitation. Ms. Gell was floored. Her heart racing, she feared she had misheard him.
“You said you have it? Can you tell me what evidence you’re seeing?” she asked, holding her breath.
“I see 12 items of evidence.”
“Can you do a physical search and tell me you physically have this evidence?” The corporal agreed and said he would email her.
Numb, Ms. Gell wanted to scream but restrained herself.
Ms. Thompson had told everyone she was working on a brief and shouldn’t be disturbed. Ms. Gell sent her an email anyway: “Hey, Karen, I know you’re on lockdown but I might just have found evidence in [Jim’s] case, so that’s good. That’s kind of cool.”
“Get in here,” Ms. Thompson wrote back, “so we can scream and jump up and down and you can tell me everything!”
They did celebrate. But the Innocence Project lawyer cautioned that until it was real, it wasn’t real. And then it became real— the next day the corporal emailed Ms. Gell that he found the evidence.
She couldn’t wait to tell Jim. He usually called at 3 p.m. The phone rang on time.
“I have some good news,” she told him. “We found the evidence.”
“No kidding, Wow!”
She initially could hear excitement in his voice — a rarity. But then he pulled back. He had been down this road before.
Ms. Thompson called Indiana County District Attorney Patrick Dougherty, who hadn’t been involved in the case previously. She asked if he would agree to amend the court order in 2010 permitting DNA testing that his predecessor had agreed to. He said he would.
The new order was obtained on Aug. 18, 2014, and the additional evidence was sent to Cellmark Laboratories in Dallas.
Nearly eight months passed. On April 9, a forensic DNA analyst emailed Ms. Thompson to report a partial profile had been obtained from a sperm head found in pubic hair combings.
This was incredible, potentially exculpatory news. If DNA could exclude Jim from that sperm head, it would mean he had been wrongfully convicted.
It was time to have what Ms. Thompson calls her “Come to Jesus” talk with Jim before a swab was taken from him and compared to the sperm head DNA.
“If they find your DNA, it’s going to be you,” she told him in a phone call. “There’s no getting around it. This is no joke now. It’s here. I’m your lawyer. Tell me what you need to tell me.”
“I didn’t do it,” Jim said flatly. “Do the testing.”
Four days after a swab was taken, she received an email from the Cellmark analyst on April 27.
“I have preliminary Y-STR comparison results: Lewis Fogle is excluded from the pubic hair combings.”
Ms. Thompson was off work, sick at home, when she opened the email. She read it over and over and over again. She wept.
Ms. Gell learned later about the results from Ms. Thompson’s paralegal.
Jim called as scheduled at 3 p.m. Breathless, Dara told him “You didn’t match!”
“I know” was Jim’s calm response. Ms. Gell was stunned.
“This is it! This is the moment! We’ve done it!”
“Yeah, I’ve been saying for 34 years I didn’t do this. Now maybe we can get me the hell out of here.”
Despite his verbal restraint, Jim was physically shaking. He walked back to his cell and told his “celly” Sam the good news. The men embraced. “You’re going home!” Sam said.
The district attorney
Patrick Dougherty was 8 years old when Jim was arrested, so he wasn’t aware of the case while growing up in Indiana. But he came to know it intimately this year when he had to make one of the biggest decisions of his first term as Indiana County district attorney.
When Ms. Thompson called to report that DNA had excluded Jim, Mr. Dougherty understood what was at stake. He asked for time to perform his due diligence to see if there remained any viable evidence implicating Jim. He and two county detectives pulled the entire case file and plowed through thousands of pages of trial and hearing transcripts, criminal complaints, statements, reports, petitions, motions.
He became engrossed by the case — the twists and turns, the changing statements, jailhouse snitches, a hypnotized psychiatric patient. It reads like a riveting mystery that you can’t put down, he thought, but if this were a book, no one would believe it.
The most compelling document he read was a statement Jim’s brother Dennis gave state police after his arrest that implicated him and Jim. Dennis later recanted, saying the confession had been coerced under duress, and a judge ruled the statement inadmissible.
Mr. Dougherty saw that Jim had been convicted primarily on the testimony of the jailhouse snitches, who said the Fogle brothers had raped Kathy. But the DNA findings excluded both Jim and, by extension, Dennis. He knew Jim’s conviction couldn’t stand without proving he raped her. Was there other evidence ? Or should he join in the Innocence Project’s motion to vacate the conviction?
He consulted with other district attorneys. He spoke several times with retired Indiana County Judge Gregory Olsen, who had prosecuted Jim in 1982.
He had sleepless nights. In the end, he listened to his wife’s common-sense advice: “Go with your gut.” And what his gut told him was “this man is in jail and he shouldn’t be.”
He joined in the motion to vacate the conviction and after a brief hearing on Aug. 13, an obviously stunned Jim was freed from prison. At a hearing a month later, Mr. Dougherty told a judge the case against Jim was without “prosecutorial merit” and should be dismissed. The judge exonerated Jim.
And with that, justice had been served — a lawyer, a law student and a district attorney agreed.
Two Indiana County detectives are actively working on the now-open murder case of Kathy Long. Patrick Dougherty, who was elected to another term as district attorney in November, said recent publicity about the case has spurred tips that are being investigated weekly.
Next in the Series:
Why Jim Fogle received no compensation for his wrongful conviction.
Michael A. Fuoco: email@example.com or 412-263-1968.
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