Seeking Truth

Dec. 27, 2006

In 1985, Jim Gainforth was put into prison for life without parole for murdering a young man at a Shell Mini-Mart, yet the jury was never presented evidence that his vision was arguably too poor to sight a gun.
Gainforth, at the time, refused to take a plea bargain and insisted on his innocence.His parents and their friends spent thousands of dollars on two attorneys since then, but ran out of money. Finally Gainforth himself wrote a brief that was filed in 2004.
Last week, a state appellate defense attorney successfully argued for a new trial for Gainforth. She contended that he couldn’t possibly have shot James Burton because he couldn’t see well enough to shoot at a distance of 50 yards, especially on a rainy night. Yet the issue was never raised in the original trial.
Eighteen months before the July 15, 1984 murder, Gainforth was discharged from the military because a blind spot in his eye prevented him from being able to sight an M-16, a rifle nearly identical to the alleged murder weapon.
His defense attorney at the time was Mike Haley, who now sits as judge for the 86th District Court and was the first witness called to the stand.

NEW TRIAL
Circuit Judge Tom Power agreed Gainforth’s defense was inadequate and granted a new trial, which the prosecution said it would immediately appeal to the state Court of Appeals. If the appeal is denied, Gainforth could theoretically get out of prison on bond as early as January 15, but that’s unlikely. Grand Traverse County Prosecutor Al Schneider said if he loses the appeal, he’ll take the case to the state Supreme Court.
Last week’s decision most certainly brings back the pain of the decades-old trial and senseless murder of James Burton, who was only 20 at the time.
It is a highly unusual ruling on a few levels. First, there’s the professionally awkward fact that Haley is an 86th District Judge and has been for a decade. He served as public defender in this case. Power, who is responsible for granting the hearing last week, is a circuit judge and sits one floor above Judge Haley (or at least did before the new courthouse recently opened), and hears appeals of his district court cases.
If you drew a circle around all the players and their offices in this case, you’re looking at a tiny realm where everyone must get along while trying to serve the higher cause of justice. The realm in 1984 included even the defendant’s own father—a deputy sheriff of 31 years. And yet this closely knit legal community decided to take a good, long look in the mirror and listen to the arguments of a man who sat in an 8x10 cell for 22 years.

PACKS A PUNCH
The hearing was held Tuesday on the third floor of the Grand Traverse County courthouse in a relatively small courtroom. Gainforth’s attorney was Val Newman, a diminutive woman who packs a punch in a polite way. She works for the State Appellate Defender Office in Detroit and was accompanied by another attorney and a chief investigator.
Prosecutor Al Schneider delivered effective opposing arguments, but admitted he was hampered. He was not the prosecutor in 1984—that was John Foresman, now the 86th District Judge whose office is right next to Judge Haley’s.
It is interesting to note that this story gained national attention in the mid-1980s, yet on Tuesday, only one spectator attended the hearing. Lining the courtroom were several armed guards, who remarked during a break that Gainforth—who reportedly has an IQ of 130—was well-behaved and taught himself the law in order to write the brief that Power praised as finely written.
The atmosphere was casual, but respectful, with a free give-and-take between Power, Schneider and Newman.
In the opening statements, Newman contended that the only thing that tied Gainforth to the murder was the testimony of witnesses Doug Hutchinson and Kevin Snyder. Both were men known for partying and playing war games with Gainforth in Hoosier Valley, a stretch of wild, disreputable country south of Traverse City. They agreed to testify against Gainforth in exchange for a plea bargain in which they would receive shorter sentences than if they were convicted of first degree murder.

THE MURDER
Hutchinson told the jury 22 years ago that he and Gainforth met in Hoosier Valley with Snyder and Duane Gilland on Saturday afternoon, a day before the murder, and talked about robbing the Traverse City Shell Mini-Mart on South Airport Road and killing the clerk. In the early dawn hours, he arrived at the Mini-Mart, hung around, and then left. When the clerk stepped outside at around 5 a.m., Hutchinson said he saw Gainforth shoot him in the back of the head. Hutchinson said he went back in the store and took about $200 from the cash register. Then they fled to Kevin Snyder’s Blazer that was parked nearby on LaFranier Road.
Snyder and Hutchinson expected to get prison sentences of no more than 10 years for their testimony; instead Hutchinson and Snyder won’t be released until 2020 and 2011, respectively.

SLAM DUNK CASE?
At last week’s hearing, Newman told Judge Power that there are two ways of looking at the case: as open and shut, or a case fraught with lies and inconsistencies.
For one, Newman asked, was Hutchinson even in the store as he claimed?
People who described the strange-acting man in the Shell Mini-Mart gave details about his coat, hair, jacket and age that did not match Hutchinson.
Joan Weber, for example, was visiting Burton, her fiancé, as she did on many mornings. She first described him to police as 35 years old, wearing a navy blue jacket, with a word like Connor followed by “Lake” written on the back. In fact, Hutchinson was 20 years old at the time and allegedly wearing a light blue jacket that said “Lee’s Bar.” Weber was unable to pick out Hutchinson from a line-up, despite the fact that she spent 45 minutes in the Mini-Mart with him, talked to
him, and even engaged in something of a stare down.
Newman said that Haley should have objected about the discrepancies of the color and writing on the jacket, which was barely drawn out of the evidence bag in the original trial. But Judge Power quickly cut off Newman from taking the issue further, saying that Hutchinson was positively identified by an acquaintance that was also in the store early that morning. Newman said during a court break that the testimony of that acquaintance was “full of holes.” In any case, the hearing’s primary focus was on Gainforth’s ability to shoot.

HALEY’S TESTIMONY
The one-day hearing sought to determine whether this case would have a “reasonably likely chance” of a different outcome if the evidence of Gainforth’s bad eyesight was raised in the first trial.
Haley said he simply could not remember hearing about Gainforth’s bad vision or seeing the Army records that documented the problem.
“Today in 2006, it seems like a great argument to have an undisputed piece of testimony that his vision was so bad that he couldn’t sight a rifle at that distance. To stand before 12 people, that would have been a beautiful thing unless I had a good reason not to do it.”
Haley did remember being frustrated with his conversations with Gainforth. He could not get a “coherent statement” from Gainforth about where he was that night and his specific role, if any, in the crime. It was like representing a “deaf mute,” he told Power. “He wouldn’t tell me anything about what was going on that night.”
Newman presented a report in which Gainforth told a police officer that he was discharged from the Army because he couldn’t qualify with his M-16. Haley said he couldn’t remember seeing it, although he acknowledged all the reports were available to him.
“I can only assume there was a good reason (not to bring up his vision difficulties),… because his eye sight difficulties would have been great stuff to use. But to do a laundry list defense—‘Folks he really wasn’t there, but if he was there, his eyesight was lousy.’ I’m not sure that would have worked.”
Newman replied: “How ‘bout, ‘Folks, you guys can’t believe Doug Hutchinson because he just told a bald-faced lie.”

CHANGE OF PLANS
Newman was referring to Hutchinson’s trial statement in which he said the original plan was for him to shoot the clerk.That plan was changed, he said, because Gainforth was a better shot in a standing position. Yet, Hutchinson qualified as a “sharp shooter” in basic training.
Jim Gainforth’s mother, Carol Roney, testified that she told Haley about the Army records, a fact reflected in a police report. She said that Haley told her that he couldn’t introduce the records unless the prosecution brought up the issue first.
Gainforth, who didn’t testify at the original trial, told Power last week that he repeatedly brought up the issue of his vision to Haley, who promised to explore it. Gainforth said he gave up on the issue after hearing from his mother. Schneider asked him why he gave up so easily. Gainforth said he was a high school drop-out and had to trust his attorney. He also said he enjoyed hunting—not target shooting—with his dad. He said he bought the AR-15 at Hampel’s Gun Shop for Kevin Snyder who had a felony record and couldn’t buy it himself. Finally, he said, “No,” when asked if he had ever discussed a murder at a Shell Mini-Mart.
Gainforth’s dad testified that he took his son hunting a couple of times a year, but his son never killed anything, and couldn’t even discriminate between birds that flew up.

PUZZLING
Schneider argued that it made no sense that Gainforth was such a lousy shot, when, in fact, he told a police officer that he enjoyed collecting guns and shooting. He had bought the AR-15 and loads of ammunition just 10 days before the murder. “How could a defense attorney with a straight face present (his vision problem) to a jury?”
Judge Power agreed that he found it puzzling that Gainforth enjoyed shooting when he couldn’t hit anything.
Schneider also argued that Gainforth told police he had trouble hitting a bulls-eye on a military target that was 1,000 feet away. In the case of the murder, the victim was only 150 feet from the shooter and the human target was much larger. He also said it wasn’t the role of the court to second-guess the strategy of the defense lawyer at that time.
Schneider referred to Tuesday’s testimony of ophthalmologist Kenneth Musson, M.D., who testified that Gainforth could see well enough to see a human target from 50 yards away.
Judge Power pointed out in his concluding remarks that Dr. Musson found defects in the architecture of Gainforth’s retinas, the same problem diagnosed by Army doctors. Power said that no one thought to ask Dr. Musson at the hearing the key question: Did Gainforth’s blind spot at the point of fixation preclude him from seeing the pin on the rifle and the human target. Nevertheless, the objective evidence of his failure to repeatedly sight a rifle in the military proved persuasive.

THE MURDER WEAPON
Newman also brought up in the hearing that Haley could have done more with the issue of the alleged murder weapon. Snyder testified that he kept Gainforth’s AK-15 rifle under his bed for safe keeping, and that it was definitely used as the murder weapon. But ballistic tets showed that it was not the weapon used.
Newman said it’s important because Snyder’s lie further undermined his credibility.
The prosecution in the original trial implied the real barrel could easily have been switched out, but never showed any physical evidence that was done. Power said that Haley did a good job of cross-examining the prosecution’s witnesses, as well as presenting his own expert witness.

WITNESSES RECANT
Doug Hutchinson, his arms and legs shackled, also testified on Tuesday. Both he and Kevin Snyder said in a 1993 affidavit that everything they said at the original trial was a lie and that they and Gainforth had no involvement in the murder.
Hutchinson said he lied because he was afraid of Duane Gilland, who cooked up a plan at a meeting in Hoosier Valley to murder the clerk and make Gainforth the fall guy. He said that if he and Snyder didn’t support his story, Gilland said he would kill their family members. To make his point, Gilland had a man standing in the distance fire shots in their direction. After the hearing, Schneider called Hutchinson’s story “ridiculous.”


MYSTERY MAN
Duane Gilland was the mystery man in the original trial—the only one of the four men who wasn’t charged. On the afternoon of the murder, Gilland, then 20, came to the police station after hearing about the murder on the news and told them he was riding around the day before and noticed Hutchinson and Gainforth watching the Shell Mini-Mart “pretty close.”
The police report said, they “explained to me they wanted to go in -- Doug was going to go in, shoot the guy in the head with a rifle, Jim was going to hit the till, and try to make it look like two separate accidents. I was supposed to go outside and make a phone call to the police.” Gilland said he planned on saying that he couldn’t describe the shooter, but did see Jim Gainforth “hitting the till.”
“The only motive for doing this was just to see if they could pull it off, they weren’t after the money they said,” the police report states. “After that, I, you know, said no way. I didn’t think they could do it anyway, so I just blew it off and went downtown, talked to some friends, didn’t tell them nothing about it.”

GAINFORTH’S STORY
Jim Gainforth had no criminal record and lived at his mom’s downtown home. He loved computers and used to skip classes to do programming work at Northwestern Michigan College. He ultimately dropped out of school because teachers at that time didn’t know how to handle exceptionally bright students, his mother Carol Roney said.
He was at Hoosier Valley the day before the murder and played video games with Hutchinson after dinner. About midnight, they walked over to Kevin Snyder’s house. She didn’t hear him come back in, but she said neither his clothes nor shoes were wet or muddy from the night before.
He didn’t give Haley an alibi because all he could say was that he was in bed that night, she said.

LONG TIME COMING
Why 21 years for a day in court?
Since Gainforth was arrested in July of 1984, he has remained locked up except for an escape in January 1985. He and another prisoner climbed through the ducts of the jail, but Gainforth was found 12 hours later in Bay City (his cousin tipped off police).
Another tragedy occurred at the time of the escape. A 23-year-old man showed up at the lobby of the Grand Traverse County Jail with a .357 magnum revolver, saying he wanted to kill Gainforth to avenge the death of his best friend. An officer came in to talk to the young man, who was so distraught that he ultimately shot himself during the conversation.
The case seemed clear-cut at the time, and Haley filed what is called an “Anders” brief—basically saying an appeal would have no merit because he competently handled the original trial. Haley argued in 1984 that he shouldn’t handle the appeal, but was pressed into it. Today, a defense attorney handling his own appeal would be unheard of because of the obvious conflict of interest, Haley said.
Gainforth’s parents then hired two different attorneys, but ran out of money in the late 1990s. That’s when their son decided to write the appeal himself. Power hired a state appellate defender and granted the hearing, which is very rare, simply because outstanding issues like this are usually thrashed out in the appeals process.

BIGGER QUESTIONS
The case begs bigger questions than those heard last week. First, if Gainforth did not shoot Burton, who did?
The first case against Gainforth was built around the testimony of three people, all who had everything to gain by hanging him as the shooter, Power said.
“Without them, we don’t have an overwhelming case—we don’t have a case at all,” said Power, remarking there was no video camera in the store at that time.
Hutchinson and Snyder received shorter sentences for testifying against Gainforth. And Duane Gilland wanted to avoid getting implicated, Power said.
“If it wasn’t for Gainforth, then who did it? (Gilland) was at risk and had to make his story stick,” Power said.
Since Hutchinson and Snyder recanted their testimony, the chance for another conviction seems remote. Schneider said that in the event of a new trial, he would likely rely on the original testimony of Hutchinson and Snyder. “Let’s say we’ve got our work cut out for us,” Schneider said.

JUSTICE FOR A PRICE?
When Fred Gainforth was first asked why it took 21 years to get to this point, he had one word: “Money.”
Carol Roney, Jim’s mom, and her husband now believe that justice is delivered on an ability to pay. Unless a person is quite wealthy, it is difficult to afford a good defense.
Newman agrees.
“We know what an affront this is to the justice system to have a man convicted and sitting in prison for more than 20 years without a fair trial... This case is about the system, it’s not just about Mr. Haley,” Newman said.
Public defenders, she said, receive very little for the cases they handle—lawyers who submit the lowest bid per case receive contracts to represent indigent clients. Public defenders rarely meet their “clients” until the day of the arraignment. Because they are paid a base rate, they have every incentive to rush through a case or plea bargain. Their clients, in turn, are new to the system, trust their lawyer and due process, and fear asking too much of their “free” attorney, Newman said.
In this case, Haley met frequently with Gainforth, but felt he never made a connection with him. And, the defendant was too intimidated to pressure Haley into raising specific objections and issues. That wasn’t the case with his attorney on Tuesday, when he continually conferred with attorney Val Newman during the hearing.
If—after the appeals have played through to the state Supreme Court—and Gainforth does get his new trial, he will again have a public defender. But it won’t be a problem this time even if the attorney is incompetent, Newman said.
“I was just telling his parents—Jim knows enough now about the law. He can take care of himself.”