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Crosley Green
Crosley Green was convicted of murder 34 years ago in Florida and sentenced to death by an all-white jury.
Green, who is Black, claimed he was innocent of killing the white victim and refused to plead guilty.
Five years ago, a federal judge granted Green’s habeas corpus petition and vacated his conviction because the prosecutor, in violation of his constitution and ethical duties, failed to disclose to the defense that police officers who initially investigated the case, believed somebody else, not Green, was the killer.
Green spent 31 years in prison before he was released in 2021, mostly on Death Row. (His death sentence was changed to life imprisonment due to errors at the capital sentencing stage). The prosecutor appealed the federal judge’s ruling, claiming that since the officers’ opinions were not important, they had no duty to disclose it and that Green would have been found guilty anyway.
The Eleventh Circuit Court of Appeals agreed with the prosecutor and reversed the federal judge. So, after spending two years of freedom with his family, attending church, going to work as a mechanic, and enjoying barbecues, Green was ordered back to prison next week to resume his life sentence.
As a matter of fundamental justice, Crosley Green’s story is deeply unsettling. Is his case an aberration, or does it tell us anything important about American criminal justice? Is he a minor character in a huge and complex legal system in which mistakes are inescapably made, and only when those mistakes are serious enough do they warrant correction? Does the fact that masses of people are incarcerated every year, including Green, reveal shortcomings in the criminal law?
The circumstances of the murder are bizarre and suggest that the original police theory that Green was not the killer makes abundant sense. Two young people, Chip Flynn and Kim Hallock, were seated at night in a pickup truck in a secluded parking lot in Brevard County.
Hallock was jealous that Flynn was seeing other women, and they discussed their relationship. Hallock claimed that a Black man suddenly approached them with a gun, got into the truck, and ordered them to drive to a secluded orange grove where Hallock claimed Flynn, who had a gun, shot at the man, and the man shot back, killing Flynn. Hallock escaped.
Police found no physical evidence. The only witness to the killing was Hallock. She described the assailant as having features that did not match Green except for the color of his skin. She told the police that the killer was “a Black guy.” Her selection of Green’s photo from an array was suspicious: the police told her that the killer was in one of the photos; Green was selectively placed to stand out; his skin appeared to have been darkened; and Hallock made her identification after stating several times that she was not sure.
Three people who testified that Green told them he was the killer later recanted, claiming the police coerced them. Two police officers who conducted the initial investigation told the prosecutor they believed Hallock shot Flynn with a gun she kept in the glove compartment of the truck.
But since this theory was inconsistent with the prosecutor’s theory that Green was the killer, the prosecutor disregarded it, believing that these officers were mistaken and, therefore, had no duty to reveal to the defense information he believed was unreliable.
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However, the prosecutor either misunderstood or disregarded his constitutional and ethical duty to disclose this information to the defense. Surely this experienced prosecutor was aware of the landmark Supreme Court case of Brady v. Maryland (1963), which mandates that prosecutors disclose evidence to a defendant that is materially favorable to his defense.
It is not the prosecutor’s call to decide whether evidence is or is not important. If that were the rule, it would be tantamount to the prosecutor-fox guarding the henhouse. But that is not the rule. As the federal judge stated when he granted Green’s habeas corpus petition, the prosecutor was required to disclose the information because it would be “difficult to conceive of information more material to the defense and to the development of the defense strategy.”
The appellate court weighed in on the side of the prosecutor. The court did not believe the information was sufficiently important. The court reasoned that the defense would have been unable to use the police opinion that Hallock was the killer because it was hearsay and, therefore, inadmissible.
And, at trial, the defense did try to point the finger at Hallock as the killer. But learning that several police investigators also shared that belief would have strongly reinforced their theory and provided the impetus for the lawyers to explore the basis for the officers’ opinion and then discover admissible evidence pointing to Hallock as the killer.
The prosecutor indisputably violated his legal and ethical obligations by not disclosing the police opinion as to the killer’s identity. But the circuit court’s decision is less clear-cut. Since that court had the benefit of the entire trial record, it was able to speculate that even if the defense had the information the prosecutor hid, it wouldn’t have mattered; the jury still would have come to the same conclusion of Green’s guilt.
Regardless of the legal issues of whether the prosecutor violated his disclosure duty, whether the federal judge who granted Green his freedom made the correct decision, and whether the circuit court should have affirmed that decision, the paramount question remains: Is it the right sense of justice that a man convicted of a crime he claims he did not commit, who spent 31 years in prison mostly on Death Row, who was released and lawfully at liberty for two years tasting the life of freedom that all free persons enjoy, be suddenly sent back to that prison to spend the rest of his life in a prison cell?
What kind of message does this tragic story reveal about American justice? The rules of law are, of course, important. But one wonders whether other fundamental precepts might also be important, such as mercy, compassion, and humanity.
Crosley Green faces a dark future. Clemency and pardon are his only options. It’s unlikely the governor of Florida will pardon him, and the clemency board is stacked with hard-liners.
So here the story ends, tragically and likely forgotten.
Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
This is an opinion piece. The views expressed in this article are those of just the author.
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