SEARCHING FOR JUSTICE

New evidence may end mom's 22-year fight for son's retrial

BY LYNN WALTZ
STAFF WRITER

Catherine Joe has been on a 22-year mission to free her son from prison for a murder she says he did not commit.

She has fasted and prayed.  She has hired private investigators and attorneys, and has rallied friends, churches and the NAACP to her cause. She started a defense fund, and when that money was gone, she and her husband exhausted their savings from their years of working, he at the Naval Shipyard, she at a Suffolk basket factory.

Then she began borrowing money — all to persuade appeals courts to give her son a new trial.

Now, at 76, Catherine Joe believes she has new evidence that will finally convince a judge to grant the retrial. On Friday, Joe's attorneys filed the motions in Southampton County Circuit Court.

Vernon Joe was 19 when he was convicted in 1976 of helping two other men murder a prison guard during an attempted escape from the Southampton Correctional Center in Capron. Joe was sentenced to death, but the sentence was later commuted to life in prison.

Now, two witnesses against him at the trial — an inmate and a prison guard — have signed sworn statements saying Vernon Joe had nothing to do with the murder. Previously, his two co-defendants, also convicted of the murder, signed sworn statements saying Joe was innocent.

"I became more and more convinced that this young man was simply at the wrong place at the wrong time and that his conviction never should have taken place said Dick Brydges, Vernon Joe's attorney.

If the motions are denied this time, Catherine Joe said, it's the end of the road. This will be the
fourth time lawyers have asked the courts to grant a new trial. If she does not win this time, she said, she will give up the battle and leave it all in God's hands.

Catherine Joe's son is 40. The public fund-raisers ended long ago.  Her husband died during the crusade to clear the name of their only child. All but her closest friends have deserted the cause.

"If this doesn't work, there's nothing left, nothing else I can do," she said. "If there were anything else I could do, I would. But I don't know of anything else."  It is nearly impossible in Virginia
to get a new trial based on newly discovered evidence. And, once issues are raised based on new evidence and a new trial is denied, those issues can't be raised again.

"I doubt there's anything else new we don't know about," said attorney Stephen Frucci, who is
working with Brydges on the case.  "And, you have to show you couldn't have gotten the evidence before. That would be hard.  They've scoured the ends of the earth"

The prosecutor during Joe's trial, Southampton County's Commonwealth's Attorney Richard C. Grizzard, was skeptical of the new affidavits, he said Friday.

The key recantation is from a prison guard. The guard testified at trial that he was placed in a cell
with an inmate but didn't know who it was.  Now, he says the inmate was Vernon Joe. He says Joe was with him and couldn't have been involved in the murder.

'"I just don't know how (the guard) can be so clear now," Grizzard said, "This happened in 1975.
We went to trial and he had every opportunity in the world to say, "Wait a minute, it couldn't have
been Joe involved because he was in the cell with me the whole time."  Now 22 years later, how can his memory suddenly be so clear?"

This part of what happened that night at the prison is undisputed:

Between 9:30 and 10 p.m. on March 23, 1975, two Inmates, Michael Cross and Tony Lewis, overpowered two guards during a planned prison break.

"I landed on (Officer Barnes') shoulders, knocking him head first into the steel gate. This knocked
him out," Cross recalled in a sworn statement in 1994 in which he exonerated Joe. "I then dragged Barnes down the corridor. . . . Barnes was coming to and said, 'Don't hit me, don't hit me.' I pushed him back down."

Meanwhile, the other inmate, Tony Lewis, overpowered guard Alfred Lynch. He dragged Lynch to cell 130, which was normally empty. Inside was Vernon Joe, in his pajamas, asleep.

What happened next has been disputed for more than 20 years.

Prosecutors contended at the trial that Joe helped the men restrain Lynch and rob him of his wallet
and money. Then, they said, Joe came out of the cell and began beating Barnes, delivering the final, fatal blows to the head.

But Joe says he was terrified and stayed in the cell with guard Lynch until Lewis and Cross brought Barnes into the cell. Then, Joe says, he ran out of the cell.

Lynch testified for the prosecution at the trial that someone was in the cell with him at all times, one hand resting on the hack of his neck. When Barnes was brought in, the man left, and the cell door was locked. But, Lynch testified, he didn't know who was holding him.

But on Oct. 13, 1994, Lynch signed a sworn statement, which he re-affirmed verbally to attorneys
Brydges and Frucci last summer.  Though he said some memories were vague, he said his statement was true and that Joe was innocent.

"Joe did empty my pockets and then laid his hand on my back," Lynch said in his statement, "Joe
was never out in the hallway taking part in any of the attacks on me or Barnes. . . . If anyone said they . . . seen Joe outside and involved in the attack, it would have to be untrue."

Lynch's new version matches the recollections of Joe and the other two inmates convicted of killing Barnes.

In an Oct. 12, 1994 sworn statement, Joe gave the following account:

"I was told to keep the guard in my cell and keep him laying down on the bed," Joe said. "I did this and then only held my hand on the guard's back so that he knew that I was there."

Cross came to the cell, dragging Barnes, and told Joe to get out, Joe recalled. Then Cross shut the door and locked both guards in the cell.

Every inmate and guard on the cellblock was interviewed within 24 hours after the murder, Grizzard said. Grizaard considers their immediate recollections far more reliable than 22-year-old memories.

One of the key witnesses, inmate Marion Thomas, can't be re-interviewed. He died on Aug. 8, 1983.

"Joe came running down the hall," Thomas testified. "And he took a flying leap from a running
start and hit Mr. Barnes in the chest with his feet, and he started kicking him and beating him."

Another inmate, Robert D. Saunders Jr., testified at trial that he saw Joe kick the prison guard in
the head and hit him with a chrome object.

But in a sworn statement on Jan. 29, 1996, Saunders recanted that testimony. He said he did not "at any time see Vernon Joe kick or hit Barnes. . . . This injustice has been on my mind for years. . . . The bottom line is that Vernon Joe should not be in prison today as he had nothing to do with the death of Barnes."

Saunders and co-defendant Cross both say they came forward on behalf of Joe because of guilt. Cross said he wanted to testify for Joe at his trial but was advised by his attorney not to.

The cell Lynch was put in was an isolation cell being used to punish Joe for bad behavior. Joe bad violated jail rules and fought with other inmates. He was serving 10 years for breaking into the home of a 26-year-old Suffolk woman and raping her. Joe was 16 when he was tried as an adult and convicted on April 4,1974.

Catherine and her son do not deny that he committed the rape, a crime for which he could have been paroled in 1976. But they have steadfastly denied that he took part in the murder.

Catherine Joe said her son's parole has been denied every time he has become eligible and that he
might have a better chance for parole if he took responsibility for the murder and expressed remorse.

But, as a devout Christian, Catherine Joe said she cannot ask her son to lie just to get paroled, no
matter how badly she wants him freed.

"I wanted him to have parole too," she said. "But I still didn't want him to say he killed somebody
when he didn't.

Catherine Joe also knows the state rarely considers new evidence in such a case. She knows if her son gets a new trial it will be a miracle.  But a miracle is what she has been praying for all these years.

"I believe this time he'll get out,"  she said. "I believe it"

The journey, she said, has been long and hard.

"At times I would hurt," she said.  "But then I'd gain strength.

"As long as you do what's right, the Lord will be with you. . . . I didn't want to to against God, because he's all I have to call on. I don't got no son to call on. I don't got no husband to call on, only Jesus. And he hasn't failed me yet."

INFORMATION

Key recantations In the case of Vernon Joe, who was convicted in 1976 of helping two other men
murder a prison guard during an escape attempt:

Inmate Robert D. Saunders Jr. June 1976: At trial, Saunders testified that he saw Vernon Joe kick
a prison guard in the head and hit him with a chrome object.  Jan. 29, 1996: In a sworn affidavit,
Saunders said he "did not at any time see Vernon Joe kick or hit (the guard), as he was in his cell until both guards had been locked up in his cell."

Alfred L Lynch, correctional officer at Southhampton Correctional Center.

June 1976: At trial Lynch testified that he did not know whether Vernon Joe was in the cell with him the entire time.

Oct. 13, 1994: In a sworn affidavit, Lynch said, "Joe was never out in the hallway taking part in any of the attacks on me or Barnes. . . If anyone said they . . seen Joe outside and involved in the attack, it would have to be untrue."