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The Man in the Red Bandana: The Case of Eugene Gilyard

By Charlotte Whitmore and Shaina A. Tyler – April 28, 2014


Pennsylvania courts are notoriously hostile to actual-innocence claims. The state’s habeas proceedings, under the Post-Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541–46; 234 Pa. R. Crim. P. 902, allow for only one post-conviction hearing, which must be done within a year of the conviction becoming final, that is, a year after a direct appeal was filed and denied. Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000). If a defendant misses that deadline, the court has no jurisdiction, with three exceptions: (1) discovery of new facts that were unknown and could not have been discovered earlier with the exercise of due diligence; (2) government interference with the defendant’s ability to raise the claims earlier; or (3) a change in state or federal constitutional law that has been applied retroactively. 42 Pa. Cons. Stat. Ann. § 9545(b); Commonwealth v. Fahy, 737 A.3d 214 (Pa. 1999). There is no equitable-tolling provision; the time limits are jurisdictional. Moreover, the petition must be filed within 60 days of the time the claim “could have been presented.” Miss by even a day and the court will not entertain the claims, no matter how convincing the evidence that the petitioner did not commit the crime.


Even assuming a defendant passes this jurisdictional time-bar, he or she still must plead a cognizable claim. First, the defendant must show that his or her conviction resulted in a “manifest injustice.” Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988). Only if the defendant shows that may he or she attempt to have the conviction overturned, by showing, among other factors, that exculpatory evidence, unavailable at the time of trial, would have changed the outcome had it been introduced. 42 Pa. Cons. Stat. Ann. § 9543(a)(2). The linchpin in any facially untimely PCRA petition is a showing that the petitioner acted with “due diligence.” For example, under Pennsylvania law, if information is available anywhere in the public arena, the petitioner will be held to when it became available, not when he or she first learned of it. Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006) (defendant should have known of trial counsel’s arrest for DUI because it was of public record); Commonwealth v. Taylor, 933 A.2d 1035 (Pa. Super. Ct. 2007) (arrest warrant matter of public record). Similarly, even where a petitioner has been incarcerated without access to counsel, an investigator, or funds, he or she must “explain” why he or she could not obtain the information sooner. Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. Ct. 2011) (“A defendant who fails to question or investigate an obvious, available source of information, cannot later claim evidence from that source constitutes newly discovered evidence.”). To say that the road is difficult is the utmost understatement.


Soon after the Pennsylvania Innocence Project opened its doors in April 2009, it received a letter from Eugene Gilyard, incarcerated for 13 years for a murder he said he did not commit and, moreover, with which he was not involved. Gilyard was known as “the man in the red bandana” because at his trial, the sole eyewitness who identified him testified that he had worn a red bandana on the night of the murder. That witness was the victim’s daughter, and her testimony was the sole evidence against him. Just over three years after he wrote to the project, he became known as its first exonerated client.


The Crime and Trial
Gilyard was only 16 in August 1995 when Thomas Keal, a local bar and seafood-store owner, was shot and killed at 2:30 a.m. near Keal’s home in Philadelphia. Keal’s daughter, Tonya Keal, witnessed the murder from her second-story bedroom window across the street. She saw the shooting for 5–10 seconds through a window fan, which was turned off. She gave the police generic descriptions of two perpetrators, stating that one of them wore a red bandana over the lower half of his face. She was shown photo arrays but could not identify either perpetrator.


Over two years later, Philadelphia detectives reopened the investigation of Keal’s homicide. They again showed Ms. Keal photo arrays; this time she identified Gilyard, saying, “Yes. This one here. He’s the one that I saw walking back and forth in front of my father’s house. He was pulling a red bandana up over his face.” At a later lineup, she said that she believed Gilyard was one of the perpetrators but was “not sure.” However, when she testified at Gilyard’s trial in December 1998, three and a half years after the crime, she was “absolutely sure” that Gilyard was the man, wearing the red bandana, who shot her father.


Ms. Keal’s eyewitness testimony was the sole evidence against Gilyard. After the jury twice told the trial judge that they could not reach a decision, Gilyard was convicted of murder and sentenced to life imprisonment without the possibility of parole. He was 19.


The Project’s Investigation
After over a year of reviewing documents, including transcripts, briefs, opinions, and some discovery materials, Gilyard’s case was presented to a review committee, composed of a panel of four attorneys. In the spring of 2011, after the committee accepted Gilyard’s case, the project began actively investigating. Project staff first went to the State Correctional Institution at Frackville to interview a man named Ricky “Rolex” Welborn, because Gilyard had heard from other inmates that Welborn might have relevant information. Welborn was serving a life sentence for murder, and Gilyard believed not only that Welborn murdered Thomas Keal but was willing to confess to it.


As Gilyard had believed, Welborn confessed to killing Keal. He was forthcoming and provided multiple details about the murder. He said that, on the night of the murder, he and a friend went to North Philadelphia to meet with Rob Felder, Gilyard’s codefendant Lance Felder’s older brother. Welborn planned to rob someone that night, and Rob suggested Keal, who was known to keep a large sum of cash in his house. When Keal closed and left his bar, Welborn and his friend approached and demanded money. Keal refused; Welborn shot him in the knee with a sawed-off shotgun. Welborn’s friend then shot Keal in the head. Welborn “pried” a .357 Smith and Wesson chrome revolver with a black pistol grip out of Keal’s hand; this was the same type of gun Tonya Keal, in 1995, told police that her father owned.


Welborn provided additional information that the project corroborated. In particular, he said that he used the same shotgun in a robbery in South Philadelphia a few months after he shot Keal; court records confirmed this robbery, Welborn’s arrest for it, and his use in it of a sawed-off shotgun. Most notably, Welborn also said he shot another man, Anthony Stokes, with this same shotgun just a few hours before Keal’s murder. The project located Stokes, who confirmed that Welborn had shot him with a sawed-off shotgun the day before Keal was killed, and that he, Stokes, was hospitalized for 13 days afterward. Stokes’s medical records confirmed that he had been shot hours before Keal’s death.


Through following up on leads and actually knocking on doors, the project spoke with a number of other eyewitnesses, who stated that Welborn and his friend, known as “Tizz,” had killed Keal. Most of them had been afraid to come forward at the time of the crime, for fear of retribution. However, one of them, Donita Mickeals, was in the area at the time of the murder and told police that Welborn and Tizz, two men she knew by name, were the killers. The police never followed up on that lead. In 2011, Mickeals reaffirmed what she had said 16 years earlier.


The PCRA Litigation
The project filed a PCRA petition on Gilyard’s behalf on August 17, 2011. Each time new evidence of his innocence was discovered, it filed an amended petition within 60 days of uncovering that evidence, as the PCRA requires. Because of this time constraint, the project filed a total of three amended petitions.


On August 19, 2011, the project wrote a lengthy letter to the district attorney’s office, detailing everything it knew about the case and requesting re-investigation. Tonya Keal, the victim’s daughter, whose identification of Gilyard was the sole trial evidence against him, joined this request. The project assumed that, after learning of the new evidence, particularly Welborn’s confession, corroborated by Stokes, the prosecution would want to uncover the truth regarding Keal’s murder as much as the project—and Tonya Keal—did. However, the letter went unanswered for over a year.


In April 2013, almost two years after the initial PCRA petition, the district attorney moved to dismiss it, on the ground that Gilyard had not been “diligent” in getting Welborn to confess. The prosecution argued that what Gilyard had filed on his own had not preserved his right to have the court consider Welborn’s confession, because once counsel entered an appearance, pro se filings “cannot be considered” and so the entire claim was untimely. It also argued that Welborn’s full confession, and Stokes’s statements, did not offer “sufficient evidence to show that his newly-discovered evidence meets an exception to the time bar.” Relying on such cases as Commonwealth v. Abu Jamal, 941 A.2d 1263 (Pa. 2008), and Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001), the prosecution sought to have Gilyard’s petition dismissed without a hearing because he had not sufficiently shown when he first could have learned of the information (although he clearly had).


The dismissal motion was silent as to Gilyard’s innocence claim—it did not even mention it. In other words, regardless of whether Welborn was telling the truth when he said he murdered Keal, Gilyard’s claims should be denied because Gilyard should have secured this confession earlier.


Fortunately, Judge Rose Marie DeFino-Nastasi, of the Philadelphia County Court of Common Pleas, decided that Gilyard’s claims deserved to be heard, and scheduled an evidentiary hearing for July 2013 for both Gilyard and his codefendant, Lance Felder. The hearing occurred over several days, spread over many weeks.


At the hearing, the court heard testimony from Kenyatta Felder, Lance’s younger brother. Kenyatta tearfully testified that he had lived for 15 years with the knowledge that his older brother, Lance, was innocent, and that his eldest brother, Rob, had been involved with Welborn and Tizz in Keal’s robbery and murder. In fear of Rob, and believing he would eventually “do the right thing,” Kenyatta had kept silent even while his other brother languished in prison for a crime he did not commit.


Welborn, on the advice of appointed counsel, asserted his Fifth Amendment privilege against self-incrimination and did not testify at the hearing. Because he had provided a classic statement against penal interest, admitting to criminal behavior he had never been charged with, the project sought to admit his written confessions into evidence through the testimony of project investigator Shaina Tyler. The prosecution vigorously objected, arguing that the statements were inadmissible hearsay because they had not been given to a member of law enforcement. The court disagreed and allowed Tyler to testify and read into the record all of Welborn’s incredibly detailed written and signed confessions, finding them “classic” statements against penal interest.


The court also heard from Anthony Stokes. He described how Welborn shot him the same day Welborn shot and killed Keal. Other witnesses, including Gilyard, Mickeals, Lance Felder, a friend of theirs named Michael Griddle, testified as to what happened the night Welborn and Tizz shot Keal. All of them were in the area when Keal was killed, and they corroborated Welborn’s confession and Felder’s testimony.


After days of testimony and multiple continuances, the prosecution intercepted three letters, dated August 2013, that Welborn had written from his jail cell to unknown addressees. The letters claimed that Gilyard and Lance Felder had agreed to pay Welborn $10,000 to confess. However, the prosecution also procured hundreds of hours of taped phone calls Welborn made from prison to family and friends. In many of these, Welborn explained that Gilyard and Felder were innocent and had nothing to do with Keal’s murder. These calls also made clear that, as Gilyard’s and Felder’s hearing progressed, Welborn had realized that he could be prosecuted for Keal’s murder. It was apparent to the project that Welborn was trying to shift responsibility from himself to avoid being prosecuted for another murder.


Convictions Vacated
Finally, on October 28, 2013, Judge DeFino-Nastasi vacated Gilyard’s and Felder’s convictions, awarded them a new trial. She read her lengthy ruling from the bench. She stated that, by constantly and consistently, during his 15 years’ incarceration, contacting organizations and attorneys who could help him prove his innocence, Gilyard had been “relentless in his pursuit of obtaining evidence to establish his innocence.” She concluded that Welborn’s confession was reliable because it “contain[ed] internal indicia of reliability and [was] externally corroborated by other witnesses and physical evidence,” particularly because no one other than Welborn knew about Stokes until Welborn himself gave this information to the project. She further found that Welborn’s attempts to recant his confessions were “last minute . . . [d]esperate and transparent measures.” In addition, she stated that the evidence supporting Gilyard’s and Felder’s convictions was “terribly weak.” She was particularly troubled by the eyewitness Ms. Keal’s limited ability to view the perpetrators, the length of time between the crime and her identification, and the inconsistencies in the descriptions of the perpetrators. The judge concluded that


[t]he after-discovered evidence in this case is a confession to a murder by a person who was identified as the perpetrator early on. The confession is internally consistent and independently corroborated by eyewitness accounts, physical evidence and the account of Mr. Stokes who placed a sawed-off shotgun in the hands of Mr. Welborn on the day of the murder. . . . This is the type and quality of evidence that needs to be put before a jury.


The commonwealth did not appeal Judge DeFino-Nastasi’s ruling; as of this writing, it has not decided whether to try Gilyard and Felder again.


Eugene Gilyard Today
On November 15, 2013, Eugene Gilyard walked into his mother’s house for the first time in over 15 years. Friends and family eagerly and tearfully welcomed him home. Since then, Gilyard has not spoken an angry or bitter word, but remains incredibly grateful for his freedom and his family. He is considering continuing his education and is currently employed at a factory. He and his wife, as of the writing of this article, are expecting their first child. Gilyard is an inspiration, a model of hope, resilience, and perseverance, as he never stopped fighting to prove his innocence.


Keywords: litigation, access to justice, Post-Conviction Relief Act, PCRA, Eugene Gilyard


Charlotte Whitmore was the Pennsylvania Innocence Project's staff attorney. She now teaches the Boston College Law School Innocence Project Clinic. Shaina Tyler is the Pennsylvania Innocence Project's investigator, with seven years of criminal defense investigations experience.


 
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