Not long after the Tardy Furniture murders, Doug Evans may have sent an innocent man to prison.
Before there were the six trials of Curtis Flowers, there were the two trials of Bobby Joe Townsend.
Townsend's trials had several similarities. The prosecutor, Doug Evans, was the same in both. So was the alleged victim, Estalee Wright, an 80-year-old white woman with dementia who happened to be the sheriff's mother-in-law. The allegations — that Townsend sexually assaulted Wright at the nursing home where he worked — were the same as well.
At the first trial, in January 1999, Townsend, who's black, faced a nearly all-white jury, and prosecutors withheld key pieces of exculpatory evidence.
Townsend was found guilty of sexual battery — forcing himself on a "physically helpless person." Judge Clarence Morgan, who would also preside over four of Curtis Flowers' trials, sentenced the 44-year-old Townsend to the maximum allowable penalty: 30 years in prison. "As far as I am concerned, it's the worst crime you could have committed on this lady, far worse than killing her," Morgan said, according to the trial transcript.
"It happened so fast and quick and next thing I know, I'm behind bars," Townsend said recently. "They put me in prison for life. Thirty years, you know, that's my life."
But there would be a second trial, two years later, and this one would be very different.
The retrial was moved to another county. Townsend was represented by a Jackson-based attorney who uncovered critical pieces of evidence that prosecutors hadn't disclosed the first time around. And there was a striking change in the jury box: This time the jury was almost all black.
'We just couldn't believe it'
Townsend's ordeal began in 1998. He and his wife, Vera, had just bought a double-wide trailer about 45 miles east of Winona, and moved there with their five sons. Bobby Joe was paying most of the bills. He had a good job as an orderly at a nearby nursing home. For 19 years, he'd been pushing a cart of cleaning supplies up and down the halls there, emptying trash cans and sweeping floors in the rooms of the elderly patients.
"He loved that job. That was his life, going down there, running that buff machine, pushing those mops, stripping and cleaning," Vera said. But on June 1, 1998, their lives changed.
That Monday afternoon, another nursing home employee, Lucy O'Briant, tracked down a local police officer named Perry Yates at his mother's house. O'Briant said she'd been urgently looking for him since Saturday. She had a crime to report.
O'Briant told Yates that two days earlier, she had been doing her afternoon round of bed checks at the nursing home when she noticed something out of the ordinary: The door to the room Estalee Wright shared with another elderly woman, which was usually ajar, was closed.
O'Briant walked over and pushed it open. What she said she saw next was shocking.
"From where I was standing ... Ms. Estalee's leg, this leg right here, was up on the rail, and Bobby was in twixt Ms. Estalee, kind of up on his knees, and you could see direct under Bobby," O'Briant would testify. "His thing was inside Ms. Estalee."
"I told him, 'You know better,'" O'Briant said. "He got up off of Ms. Estalee ... put his penis back in his pants and came out by me and ain't said a word."
But O'Briant didn't tell anyone right away about what she claimed to have seen. Instead, she said, she wiped semen off Estalee Wright's leg with a wet, soapy towel and threw the towel in the laundry basket. Then she finished her afternoon rounds and clocked out. When she left work, she went to the police department, but didn't report the incident to the officer on duty. She waited two days, until she could locate Yates, who was a friend of hers.
When O'Briant finally relayed the story to Yates, he told her to contact the authorities. The nursing home staff was alerted, as was Webster County Sheriff Robert Cooksey, whose wife was Estalee Wright's daughter. Bobby Joe was called back to work, where he'd already finished his Monday morning shift.
"When we found out the reason they wanted him back at the nursing home was to accuse him of rape, we were just blown out of our mind. We just couldn't believe it," Vera said.
On Monday evening, Bobby Joe was booked on charges of capital rape.
"Next thing I know, they was taking me to the jailhouse and kept hollering and scolding at me and going on that I had done it," Bobby Joe said. "I really didn't know what they was talking about. I didn't know what to say."
Bobby Joe told investigators that he had been in Estalee Wright's room — his janitor's cart had been right outside the door — but when Lucy O'Briant walked in, he was moving Wright's bed to clean underneath it, not raping her. Wright hadn't mentioned an assault to anyone.
Vera never doubted Bobby Joe's innocence. She said it simply wasn't in his character to commit a sexual assault. And she knew something about him that no one else did: He had a medical condition that made him impotent. Nevertheless, she was worried.
"A black man in Mississippi accused of raping a white woman, that is very scary," she said. "Are they gonna burn crosses in my yard? Are they gonna try to throw bombs in my house? Are they gonna try to shoot me and my kids?"
A thin case
On Lucy O'Briant's word, Bobby Joe was indicted. The Townsends had little money to cover legal fees and ended up with an attorney named Richard Burdine, who called his client "Billy Joe" throughout the trial and whose license to practice law would be suspended in 2009. Burdine was outmatched when he met District Attorney Doug Evans in court.
Of the seven counties in Evans' judicial district, Webster County is the whitest. The jury at Bobby Joe's first trial was whiter still. Of the 58 people who appeared on that first day to serve, only seven were black. Two were struck for cause by Judge Morgan and three were struck by Evans.
Burdine raised a mild objection to the exclusion of African-American jurors, but later backed down. "I will accept them if there are some blacks on there," he said, according to court records.
One black woman took a seat alongside 11 white jurors. "Those were not his peers," Vera said. "I was like, 'He don't have a prayer.'"
Evans' case against Townsend hung on O'Briant's testimony. There was no physical evidence and no other witnesses, not even Wright's roommate, who apparently slept through the alleged assault.
A doctor who'd met Estalee Wright just once — several months before the incident — testified to her helplessness and her advanced stage of Alzheimer's. A nursing home administrator who talked to Bobby Joe in jail testified that he had told her, "I don't see how I could have done it," which pointed no more to his guilt than to his befuddlement, but which Doug Evans called a confession.
Evans also called to the stand the lead detective on the case, a highway patrol investigator named Stanley Sisk. He had questioned Bobby Joe after his arrest and had ordered a search for dirty boxers, pants and shirts from his home, and the collection of pubic hair, blood samples and vaginal swabs from Wright. All of this had been sent to the state crime lab but as far as he knew, Sisk said in court, none of it had ever been tested.
"They are backlogged for several, for months and months," he testified.
"So that's your extent of investigating this case?" Burdine asked him on cross-examination.
"Yes, sir," Sisk replied.
The defense presented two nursing home employees who said that Estalee Wright had told them that she hadn't been assaulted. Vera Townsend testified about Bobby Joe's inability to perform sexually. Bobby Joe took the stand to say that he hadn't ever had sex with Wright. As to why Lucy O'Briant would make up such a story, Bobby Joe said, "I don't know what her motive was. I know one thing. She don't care too much for me. ... And really, I don't care that much for her."
The jury deliberated for nearly two hours and returned with a guilty verdict.
A second chance
Bobby Joe was sent to prison, but his friends and family didn't let him go quietly. They marched through town holding protest signs. "Townsend was railroaded," one said. "Where's the evidence?" asked another. They circulated petitions asserting Bobby Joe's innocence and wrote fiery editorials in the newspaper. One local activist put the Townsends in touch with Jackson-based lawyer Rob McDuff. (Full disclosure: McDuff represented APM Reports in our efforts to obtain public records in Mississippi.)
McDuff filed an appeal with the Mississippi Supreme Court and began to reinvestigate the case.
He quickly noticed that several items were missing from the case file that he would have expected to see turned over in any sexual assault: the lab's analysis of the rape kit samples and the results of the medical exam performed on the victim. He got subpoenas for these records. What he discovered was that Evans' office had withheld several key pieces of evidence that pointed to Bobby Joe's innocence.
The first piece came from the Mississippi Crime Lab. The technician there had, in fact, tested the rape kit before Bobby Joe's first trial. Her call log noted that she'd told Stanley Sisk, the investigator who testified that the lab was backlogged, that the kit had come back negative for the presence of semen. The log also showed that she called Doug Evans' office, and that assistant district attorney Mickey Mallette had instructed her not to work the case.
Second, McDuff found that a doctor and a nurse had examined Estalee Wright on the day that O'Briant reported the rape, 48 hours after it had allegedly taken place. Neither had found signs of bruising, tearing or other trauma. The two reports from these examinations had never been turned over to the defense.
McDuff also talked to Officer Yates and a nursing home employee, both of whom said that O'Briant's accounts of her interactions with them weren't accurate.
"If this type of information doesn't see the light of day, the jury gets a biased and incomplete picture of what really happened," McDuff said. "This can lead to the conviction of an innocent person."
McDuff filed a request for a new trial, citing the U.S. Supreme Court's Brady v. Maryland decision, which requires prosecutors to turn over favorable information to the defense, and was granted a hearing on his findings. After the hearing, Judge Morgan threw out Bobby Joe's conviction.
"It is clear that certain exculpatory and discoverable evidence was not provided to the defense prior to the trial that was held in this case," Morgan ruled. "The conviction of the defendant is vacated."
All that remained of Evans' case was an eyewitness whose testimony was contradicted by two sworn affidavits, a rape kit that revealed no traces of a perpetrator, and medical professionals who had found no evidence of trauma to the alleged victim. Not only did there seem to be reasonable doubt that Bobby Joe had committed the crime, it was unclear that a crime had taken place at all.
Yet Evans decided to retry the case.
The second trial was moved from Webster County — where Estalee Wright was related to several prominent citizens — to Montgomery County, where fewer people had heard about the case and there was a larger African-American community.
When the prospective jurors filed into the courtroom, McDuff was immediately struck that most of the black people were seated near the front. A random draw had put them at the top of the list for jury selection, which proceeds in order down the list. It would have been impossible for Townsend to end up with another nearly all-white jury.
Throughout Evans' time as district attorney, his office has been 4.4 times more likely to strike black prospective jurors than white ones, according to an APM Reports analysis. This time, he used only three of his peremptory strikes. The jury that sat for Bobby Joe's second trial had 10 black jurors, the highest number in any trial in Evans' district in his entire 26-year tenure.
That jury, plus the new evidence, made a difference. Bobby Joe was acquitted.
"I was not surprised," McDuff said. "We had a jury that wasn't going to be affected, consciously or subconsciously, by old racist stereotypes handed down through the generations. In a case where a black man is accused of a sexual assault on a white woman, there's always that concern."
"With a majority white jury, like they had the first time, it was a real uphill battle. This was even more so because the jurors didn't hear the fact that the physical evidence didn't support the accusations," McDuff said.
Evans was never publicly sanctioned for his actions in the case. The Mississippi Bar Association won't disclose whether any complaints have been privately filed against him.
Bobby Joe was set free, but his 20 months behind bars left a lingering pain. "It's hard talking about it," Vera said. "He used to be a happy-go person. It hurt him, and it took something from him." Bobby Joe has had two strokes and a heart attack since his release.
Nevertheless, when Bobby Joe walked out of the Montgomery County Courthouse and returned home to his wife and five sons, the family had reason to feel fortunate.
"He was a black man and was going to prison, never to get out," Vera Townsend said. "That's how it was going to be. ... We'll just put him in there, shut the door and forget about him."
"But it didn't happen like that, nope. And we're pretty proud it didn't happen like that."