The Wrong Man | Chapter 4

THE TRIAL

After five children take the stand, a defense witness gets tangled up.

Part 4 of a six-part series. Click here for Chapter 1.

FEBRUARY 1990

When jury selection began inside Philadelphia City Hall, the towering white marble, brick, and limestone structure, the city had become a pressure cooker.

“The atmosphere was almost like the Salem witch trials. … They wanted blood,” was the way Miller, Gaynor’sMichael Gaynor was on trial for murdering Marcus Yates lawyer, would later describe it.

The hate toward Gaynor and JohnsonIke Johnson, aka Donovan "Baby Don" Grant, on trial for murdering Marcus Yates was so palpable that many residents rallied behind the District Attorney’s Office to call for seeking the death penalty. One man in the jury pool sought out Miller after he was not selected.

“Be glad I wasn’t on the jury because I was gonna fry your man,” he told him.

The jurors, seven men and five women, were sequestered in a hotel for the two-week trial. In early February they started to hear the case in Courtroom 243, a majestic room with lofty ceilings, splashes of marble and brass, and weathered oak chairs and tables.

As soon as Common Pleas Court Judge Eugene H. Clarke Jr. took his seat and struck the first gavel, the mood turned contentious.

Miller and Johnson’s court-appointed lawyer, Willis W. Berry Jr., argued that Rochelle and Anthony YatesMarcus Yates' parents should be kept out of the courtroom until after the children who witnessed the killing were called to testify.

Clarke granted the request, angering the family.

“I waited 19 months to see justice done,” Rochelle said in the hallway outside the courtroom. “Nineteen months of living hell, and we still can’t find out what happened to my baby.”

She hadn’t seen MalcolmMalcolm Yates, Marcus Yates' brother who was also shot in the candy store or ToneyToney Yates, Marcus Yates' brother for months, either. After someone told her there was a hit out on them, she had sent her remaining sons to their uncle’s home in Savannah, Ga.

The boys returned just before the trial was set to begin. Toney, then 12, dressed in a sweater and tie, and Malcolm, a bespectacled 8-year-old, walked solemnly down the vast hallway with hands in their pants pockets as news cameras clicked.

They were about to testify, as were three other children who had been in the candy store: sisters Shannon and Nicole McCode, who had been Miss T’s foster children for seven years, as well as an 11-year-old girl who was a friend of theirs.

Looking back, the now-adult children are unable to remember who prepped them before they had to appear in court or exactly what was said. But Malcolm and Toney recall someone telling them that the two gunmen who killed their brother would be in the courtroom.

When asked, all they had to do was point to them.

Five children positively identified Johnson and Gaynor as the shooters.

But not without inconsistency and confusion.

When detectives first asked Shannon McCode if she could recognize the shooters, she said, according to her statement: “I don’t know. I was scared.”

In court, she said she could identify them. But she reversed where the two alleged shooters were standing. She said Gaynor was the gunman at the rear of the store and Johnson near the front door.

CaseyAssistant District Attorney Joseph Casey who prosecuted the case discounted the discrepancy, telling reporters after her testimony, “So long as she puts both in the store as the shooters, it does not have too much of an effect on my case.”

On cross-examination, Miller asked the children if they had seen Gaynor’s photo in the newspaper before picking him out of a lineup.

Nicole acknowledged she had.

And Toney bounced between uncertainty and certainty.

In the lineup months earlier, he had identified only one defendant — Gaynor — not Johnson.

Are the two shooters in the courtroom? Casey asked him.

“Only thing, I don’t remember what their faces looked like, sir. Only thing I remember was one had craters in their faces, like holes,” speaking of the shooter by the door.

“You’re not sure what you saw,” Berry told Toney on cross-examination. “With so much going on, you really don’t know what happened.”

“I’m sure,” Toney said.

Reporters surrounded Casey as court concluded for the day, questioning him about the memories of traumatized children.

“To stay sane, we try to forget horrible things. He’s trying to put his brother’s death behind him,” he told them.

On its face, the prosecutors had a damning document: the signed witness statement by Ann Marie Mills, Gaynor’s girlfriend, who after interrogation had fingered Gaynor as one of the shooters.

But the prosecution didn’t call her to testify or introduce her statement.

Miller did not call her as a defense witness, either.

Instead, Miller figured he could count on Christopher DuncanSon of candy store owner, Ruby Duncan. Casey hadn’t called him as a prosecution witness, even though he had played a key role at the preliminary hearing.

So Miller called him as the first defense witness.

Duncan testified that he told detectives Gaynor wasn’t the other shooter, but they held him for five days and kept threatening him. He said he told detectives the other shooter was Harbor, but they wouldn’t listen.

“They keep on saying, you know it’s Mike do the shooting so why you just don’t say it?”

“Why did you say he was one of the people?” Miller asked, referring to Gaynor.

“I was scared by the cops,” Duncan replied.

He testified that one cop whom he couldn’t identify even threatened to kill him.

On cross-examination, Casey needed to destroy the credibility of the defense’s best witness. He pointed to all the conflicting statements that Duncan signed for detectives.

You were terrified of Gaynor and his friends — not the police — and that’s why you backpedaled, Casey said.

No, Duncan said.

“After the shooting were you afraid that Michael Gaynor would kill you?” Casey asked.

Objection, Miller said and moved for a mistrial.

The judge denied the motion. “Questions are not evidence. Only answers are evidence,” Clarke instructed the jury.

Casey introduced the statement Duncan signed on July 21 when he first fingered Gaynor and read from it.

The last typed question: “Is everything that you have just told us and read the truth?”

Answer: “Yes, sir,” with Duncan’s signature underneath.

Why did you sign it if it wasn’t true? Casey asked.

Duncan: “I never heard what they said.”

Casey: “Did you read this before you signed it?”

Duncan: “No, I didn’t.”

Casey: “Was it true?”

Duncan: “No. It wasn’t true.”

Casey repeatedly asked why he didn’t read it.

“How am I supposed to read? I was tired.” Duncan admitted he had pretended to review the statement.

How could anyone know when you are telling the truth? Casey said, more for the room than expecting an answer.

In the hallway during recess, reporters sought out Miller. Why had he called Duncan as his first witness? It seemed Duncan muddied the defense, not bolstered it.

Miller felt sick. That night at home, he sobbed. “I had somebody’s life in my hands,” he would say. “And you cannot make mistakes.”

He still had a strong line of defense from an unlikely source: Ike Johnson himself.

Dressed in a gray suit and white shirt, Johnson settled into the witness stand, where he would be coaxed and grilled for the next five hours.

On direct examination, he admitted he was one of the two gunmen, but said Gaynor, his codefendant, was not the other shooter.

He testified that he’d known Gaynor as “Mikey” since at least 1984. As for the other shooter, he fired at him first. “I didn’t know who this guy is, where he lives at, you know, and what type of person he is. All I can tell from what he just did, he was a lunatic.”

He only shot back to defend himself, Johnson testified, saying he rolled across the floor as the man fired at him. “Each time I rolled from one corner to the other, I bumped into one of the kids. They were screaming.”

Johnson took cover behind one of the video games and started shooting back.

When he ran out of the store, “I passed the little baby on the floor in the blood.”

Berry, his lawyer, had Johnson describe how WorrellDetective Paul Worrell, lead investigator on the case interrogated him. The detective beat him up while grilling him about the murder, Johnson said.

But when Worrell took the stand and was questioned by Casey, the detective said Johnson “was never touched by me.”

“In the course of my 18 years in the Police Department, yes, I have struck defendants,” Worrell testified. “I have arrested them for assaulting me. I have never struck a defendant in the situation of taking an interview or a statement or a confession.”

As the trial went on, the prosecution and the defense painted contrasting portraits for the jury of how the murder investigation unfolded.

Defense witness Charlene IngramLived across the street from the candy store, who had a son Marcus’ age, told the court why she took an about-turn from one statement to the next. Shortly after the shooting, cops went inside the multifamily house where she lived and found $11,200 in a bedroom. The house, across the street from the candy store, was the same one where Johnson had retrieved a gun.

Detective DoughertyPhiladelphia detective James Dougherty told her he had to take the money to the Roundhouse, where $6,206 was recorded on a property receipt. Ingram signed off on the lower amount, thinking she’d have a better chance of getting some of it back.

She was questioned three times over three days for a total of about 18 hours. She said Dougherty paid her $500 in cash to “say some names” and “identify some pictures.” Those included Gaynor and Johnson.

“And when money talks, excuse me, but BS walks. And, yes, I said some names he wanted me to say and I got the money,” she said.

She said it was “supposed to be a bribe. … Told me, ‘Don’t say nothing.’ And I didn’t.”

“I rolled like a doughnut,” she testified.

When it was his turn to counter Ingram’s damaging account, Dougherty testified that he accompanied Ingram to her home around 10:30 the night of the shooting because she wanted to get diapers, her handbag, and cash. When she picked up a brown plastic grocery bag, he asked to see what was in it and found a large sum of cash. He took it to the Roundhouse and filled out a property receipt.

He interviewed Ingram, but didn’t skim any cash or give her money, he testified. There was no bribe.

On her cross-examination, Casey asked Ingram about her signed statement that reads “... as soon as Mike opened the door he started to fire into the store.” She retorted: “I told you it wasn’t Mike, so why do you keep asking me a question with Mike in it?”

Then there was Ruby DuncanOwner of the candy store who witnessed the shooting, who testified for the defense how the detectives wouldn’t listen when she kept telling them it wasn’t Gaynor.

Duncan said, “Look here, I know that he wasn’t there. … If my neck is going on the block, I can afford to put it there because I know he wasn’t there.”

She said she told Worrell he should be looking for a man she knew only as Harbor.

That went nowhere.

And Worrell, on cross-examination, testified as to why:

“I had investigated that name early on in the investigation, in the fall of 1988. … That name was a nickname. That name has never been attached to any human being that is in my capability to find nor within the New York Police Department’s capability to find. Our determination was that that person did not exist.”

Casey pounded at her, asking why then she didn’t agree to come to a lineup.

“Because I remember when my son was taken away for a week from me and I never knew where he was, and I don’t want the same thing to happen to me,” she answered.

In closing, both Miller and Berry contended that the children had been coached and that there were inconsistencies between what they initially told police and their testimony.

Miller argued that for Gaynor, it was a case of mistaken identity and, even if jurors didn’t believe that defense, firearms experts had testified that Johnson’s bullets had killed Marcus and wounded Malcolm and Micha.

Berry insisted that Johnson fired only in self-defense and did not intend to shoot the children.

Casey asked jurors to give weight to the testimony of the detectives and the children instead of the defense witnesses, whom he described as “evasive, disrespectful, and having no sense of what it means to tell the truth.”

“Children have not learned to lie, have not even learned to deceive, have not learned to be treacherous,” he said.

He portrayed Christopher Duncan as a pathological liar. “If Christopher Duncan were to tell most of you that there is a clock on that back wall, even though you have seen it 100 times, you would still want to look because Christopher Duncan has said I lied to the judge of municipal court numerous times.”

Casey urged the jurors not to be confused by Johnson’s testimony that Gaynor was not the other shooter.

Johnson wanted to convince them that if detectives made a mistake in arresting Gaynor, “they might have blown everything else … and they will be able to walk to freedom together.”

“Criminal cases make strange bedfellows,” he said.

For 12 hours over parts of three days, the jurors deliberated on what they heard at trial: detectives who said Johnson and Gaynor were two drug dealers who got into an argument and shot at each other, five traumatized children who ID’d the shooters, three eyewitnesses, including Johnson, who said Gaynor wasn’t even there, and a stumbling witness who changed his story and admitted lying, falsely accusing Gaynor, after detectives threatened and assaulted him.

At 11:30 a.m. on Monday, Feb. 19, 1990, the jurors filed back into the crowded courtroom. Judge Clarke asked if they had reached a verdict. All nodded yes.

When asked for the panel’s decision on the murder charges, the jury foreman said, “Guilty in the first degree.”

Johnson showed no emotion. Certain that he’d be acquitted, Gaynor jumped up and tried to speak to the judge.

“Sit down, sir,” Clarke told him.

Moments later, people in the courtroom slowly emptied into the hallway. “My baby is resting peacefully now,” Rochelle Yates said.

Casey told reporters he had prepared himself for the possibility that the jury would convict Gaynor only of third-degree murder.

“It really was not an easy task because they had the codefendant and two other witnesses say Michael Gaynor was not there,” he said. “And also even if he was there, they had the legal issue of if Michael Gaynor did not fire the single shot [that killed Marcus], ‘Why should we bother convicting him?’ They were really difficult issues to grapple with.”

Berry told reporters that he had hoped for a voluntary manslaughter conviction, but that Johnson was “taking it like a man.”

As for Gaynor?

“It’s a shame about Gaynor, aw, man, to see an innocent person go to jail,” Berry told the reporters. “But there was so much emotion involved. I think the jury just couldn’t come out and face that family and tell them these two were not guilty.”

The jury was tasked with another pivotal decision: Should Johnson and Gaynor die in the electric chair or spend the rest of their lives in prison?

The next day, the jury took only 90 minutes to come back with a decision: life without parole.

“I felt, and a lot of other people felt, if we took their lives we would be as bad as them,” one juror told a reporter.

Rochelle Yates was satisfied with the sentence. “I’m doing life, too. I’m just doing life without my son.”

Casey, who a day earlier admitted no evidence showed that Gaynor fired shots that killed Marcus, told reporters he would have been happy with a death sentence. “I would have gone home and slept like a baby without a qualm.”

Gaynor was stunned. Being led out of the courtroom, his face twisted in agony.

He told a throng of reporters he had been railroaded.

“I’m innocent,” he said. “And you know it.”

Read next chapter

Marcus Yates’ mom, trapped for years in despair, met her young son’s killers and heard a bombshell | Chapter 5

The murder of 5-year-old Marcus shook the city. Now 36 years later, his mother is on a mission to free his convicted killer.

VIDEO

How did a mom discover the wrong man was in prison for her son’s murder? Listen to her story.

The Inquirer launched its own investigation and discovered that Michael Gaynor, who has served 36 years in prison for Marcus Yates' murder, was indeed the wrong man.