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Foundation without Representation

Some law firms are wary of taking clients accused of terrorist ties

By Miriam Rozen

Texas Lawyer

In the days since the FBI secured the premises of the Holy Land Foundation for Relief and Development's headquarters in Richardson, Texas, the subject of who will represent the nation's largest Muslim charity has prompted an uncustomary level of consternation and soul-searching among lawyers.

"I'm not gonna do that," Mark Werbner, a prominent white-collar criminal defense lawyer, says when asked about his name appearing on a short-list of prospective counsel that had been given to HLF leaders. "I guess I'd be open-minded. But I'm a strong supporter of Israel. I've visited 15 times. I speak Hebrew fluently. I don't think it would be a good fit. That is not to say that I wouldn't take an unpopular cause," says Werbner, a partner in the Dallas firm of Sayles, Lidji & Werbner.

HLF leaders began approaching white-collar criminal defense lawyers earlier this month when their organization's assets were frozen by the U.S. Treasury and President George W. Bush. On Dec. 4, Bush stood in the Rose Garden and accused the foundation of aiding and abetting Hamas terrorists in Israel -- allegations HLF vehemently denies.

Initially, an Akin, Gump, Strauss, Hauer & Feld attorney stood alongside a foundation spokesman and reiterated HLF leaders' assertions that the group supports only humanitarian efforts.

But by Dec. 5, George Salem -- a partner in the firm's Washington, D.C., office who initially had established Akin Gump's client relationship with HLF -- had told his partners he wanted to curtail ties with HLF.

Salem, a former solicitor of the U.S. Department of Labor from 1985 to 1989, told his partners at the Dallas-based 1,024-lawyer firm that he didn't want to represent HLF in further matters. Salem has served as president of the National Association of Arab-Americans and as chairman of the Arab-American Leadership Council.

Akin Gump will continue, Salem says, to serve as the attorney of record for HLF in Boim v. Quranic Literacy Institute, et al., which is pending in the 7th U.S. Circuit Court of Appeals. The plaintiffs -- family members of a murdered Israeli settler -- allege that a number of organizations, including HLF, sponsored terrorists. The groups deny the allegations. But the Akin Gump partners have decided not to represent HLF in any litigation related to the frozen assets, Salem says.

He says the firm represented HLF primarily on the 7th Circuit case but also on other matters from time to time, generally answering subpoenas issued by state agencies.

"We do not discuss our reasons for accepting or declining to represent or be engaged by our current or prospective clients," Salem says when asked about why Akin Gump has limited its relationship with HLF. He notes that the firm does not want to disadvantage HLF in its case with the government in any way.

Salem declines to comment on whether Akin Gump has recommended alternative counsel to HLF leaders or to confirm specific names of lawyers who may have been queried.


Arch C. McColl III, Dallas-based white-collar criminal defense lawyer, says, "It's all a business decision. Firms will lose business if they represent an organization that the president says is aiding and abetting Hamas."

McColl may speak from experience. He represents InfoCom Corp., a Richardson-based company with a director who also serves on the HLF's board. Earlier this year, the U.S. Treasury also froze InfoCom's assets and alleged that the company had sponsored terrorism. Company officials deny the allegations.

"I cannot comment on that," McColl says about Akin Gump's decision.

But a moment later, he recalls an entry in the diary of the nation's second president, John Adams, about his defense of British soldiers accused of murdering American colonists in the Boston Massacre of the 1770s. "The British were hated as much as the Hamas are now," says McColl. Adams' practice declined because of his decision to represent a group regarded as the enemy, McColl says.

But McColl contends he is unconcerned about such consequences because of his ties to the HLF. "I don't worry about that," he says.

John Bryant, a partner in Dallas' Glast, Phillips & Murray, represented HLF from 1997 until March 2001. HLF was looking for a larger, national firm, so the group turned to Akin Gump last spring, while HLF's lawyer, Bryant, a former Democratic U.S. congressman, lobbied the U.S. State Department, the Israeli Embassy and the Anti-Defamation League on HLF's behalf. He says other lawyers gave him flak for representing HLF, but his law practice has suffered no setbacks.

"They were under constant rhetorical assault. It continued year after year. I went up there and talked with the agencies. I said, 'This is a transparent operation. The Israelis know what they are doing. Why don't you tell us how you would like this organization to operate?' " Bryant recalls.

In light of the lack of response he got back then, Bryant believes the federal government's current actions are unjustified. The government, having insufficient evidence to pursue criminal charges against HLF, has instead decided with the freezing of the foundation's assets that "we're just gonna shut them down," Bryant says.

"[HLF] has never even been interviewed by the FBI. The facts have not changed. But the politics have changed," Bryant says.

Lori Bailey, a spokeswoman for the FBI in the Dallas office, says the agency doesn't comment on specific allegations, but she notes she would not specifically refute Bryant's contention that the bureau never interviewed HLF leaders.


Akin Gump's decision and the subsequent scramble for HLF to find lawyers raise interesting questions.

"We have a long tradition in the profession of lawyers being obligated to provide representation to unpopular causes," says Chuck Herring, a legal ethics expert and partner in Austin's Herring & Irwin. "It will be interesting to see how many lawyers turn [HLF] down. It will show how hot a potato they are."

In the HLF representation, Herring says, Akin Gump and other lawyers are within the bounds of the state rules.

"This is a decision individual attorneys have to make. You would expect a firm like Akin Gump to handle it this way. I'm not surprised. It's a practical situation. We have a wave of patriotism in this country, and people are acting different. But to be scared to represent them is to surrender to terrorism. I'm sure there will be good lawyers who have the courage and perseverance to come forward," Herring says.

Who will ultimately represent HLF was far from clear at press time.

Charles Blau, a partner in Dallas' Meadows, Owens, Collier, Reed, Cousins & Blau, says Akin Gump partners had begun inquiring about his firm's interest in defending HLF two weeks ago. But the suggestion sparked fireworks internally at the white-collar criminal defense boutique.

"There was a great deal of consternation and discussion. Let's just say it was not universally accepted as a good idea," Blau says.

The firm ultimately declined to take on HLF as a client, Blau says. Two other partners at the firm -- Trey Cousins and David Reed -- decline to comment on the matter.


When asked about the foundation's plans for hiring counsel, Shrukri Abu Baker, the president of HLF, responds sarcastically: "We will have Ariel Sharon [the Likud Party Israeli prime minister] represent us and someone else from the ADL." Abu Baker then hung up the phone.

For his part, Ghassan Elashi, the chairman of HLF, insists that Akin Gump still represents HLF in the most recent developments. "They have been good and fair. We're working through them to find representation," he says.

Elashi says other lawyers "are lining up, wishing that they can represent us." Asked to name specific lawyers, Elashi says, "You will know when the time comes."

Khalid Hamideh, a solo practitioner from Garland, Texas, who represents HLF in Holy Land Foundation for Relief and Development v. A.H. Belo Corp., The Dallas Morning News, et al. -- a defamation suit that the foundation asked a judge to have nonsuited this week against A.H. Belo Corp. and The Dallas Morning News -- also contends the list of prospective defense lawyers for his clients remains long.

"There is no shortage of lawyers on both sides -- those who are fleeing and those who are dying for this case," says Hamideh. He says financial resources will not be a concern for the attorneys who ultimately are hired to defend HLF. Even though the foundation's assets are frozen, Hamideh says, "They have a lot of loyal supporters. I don't think funding will be a problem."

Ultimately, Hamideh says, HLF will hire "someone who is well known, someone who handled high-profile cases before."

Investment by Terrorist Leader's Wife Freezes Firm's Accounts

Associated Press

DALLAS {AP}- The U.S. Treasury Department has frozen two bank accounts of an Internet company already under investigation by federal anti-terrorism agents because it received an investment from the wife of a top political leader of the Hamas terrorist group.

InfoCom Corp., an Internet service provider, received a $250,000 investment in 1993 by Nadia Elashi Marzouk, whose husband, Moussa Abu Marzouk, is deputy of the Hamas political bureau in Syria.

Marzouk was placed on a Treasury Department list of terrorists in 1995, allowing the government to seize his U.S. assets.

A top official and a lawyer for InfoCom said the company, based in the Dallas suburb of Richardson, has no connection to Hamas or other terrorist groups. InfoCom sells computer equipment and operates Web sites for Islamic groups in the United States and the Middle East.

InfoCom's vice president for marketing, Ghassan Elashi, said the woman who gave money is his cousin and that the transaction was strictly an investment. He said the company never had any dealings with her husband, the Hamas political official.

The frozen bank accounts contain about $70,000, said Arch McColl, the company's lawyer. He said the Treasury Department's action on Sept. 5 - the same day FBI agents raided InfoCom and hauled away computers and servers - damaged the business but would not cause it to close. The freeze was disclosed Wednesday.

The Treasury Department declined to comment. Lori Bailey, an FBI spokeswoman in Dallas, said the Treasury's action "was obviously a part of the overall investigation," but she declined further comment. The FBI said the raid was part of a two-year anti-terrorism probe.

The Commerce Department temporarily suspended InfoCom's export license because of what officials called illegal computer shipments to Libya and Syria. The State Department restricts exports of technology to those countries, which the United States accuses of sponsoring terrorism.

McColl said a shipment destined for Malta was stopped when InfoCom learned the buyer was in Libya, and the company didn't know it needed a special license to ship two computers to Syria.

Federal authorities have also issued subpoenas for records of some InfoCom clients, including the pro-Palestinian Holy Land Foundation, which has offices across the street. Elashi is the chairman of the foundation. The group is banned in Israel, where the government accuses it of raising money for Hamas.

The Wrong Man

cache 1292486004The case against Nickiolas Jolly fell apart within a month of his arrest for capital murder. But keeping an innocent man in jail 14 months is no big deal in this town.

In August 1997, when they took him to jail, Nick Jolly was 18 years old and had just graduated from Lincoln High School, where his mother and aunt both graduated before him. He was a third-generation Dallasite. His grandfather came here from South Texas to work for the Dallas water department, and his grandmother came from East Texas to work as a domestic. The family had been in the Rochester Park neighborhood, at the bow of Central Expressway and the Hawn Freeway, since the whites left in the '50s.

That August, Nick was finishing up a summer of relaxation after graduating. He had worked at various short-term jobs and was in the process of making up his mind about seeking some more permanent employment or perhaps following his older brother to college. But those possibilities were closed to him on the morning of August 20.

Early that morning, two Dallas police detectives came to the home of his aunt, Phyllis Jolly, on Scott Street in Rochester Park, where Nick had been staying. Sitting in the living room while his aunt listened intently, the detectives told Nick that his friend Tim Garrett had implicated him in a brutal triple gun-slaying that had occurred a few hours earlier and a few blocks away.

"They kept telling me Tim Garrett had said I did all this stuff, but I knew they were lying," Nick says, "because I knew I hadn't done nothing."

Nick is a big young man, with broad shoulders and large hands. When his face closes in a suspicious glower, he looks much older than his 19 years. But when he ranges around the room, sawing the air with his hands while he talks, he sounds like a bewildered kid.

cache 1292486304Phyllis Jolly

Phyllis Jolly, a small, intense woman in her 30s, listened quietly to the detectives' speeches until she was sure she had the drift. Then she tried to cut it off.

"I asked them if they had a warrant," she says.

They did. They arrested Nick for outstanding traffic tickets.

While they were handcuffing him, another detective who had helped coach Nick on a Lincoln High School football team came to the door of the house. "I called out to him, 'Hey, look what they're doing to me,'" Nick says. "'Tell 'em! You know I didn't do nothing like this!' But he just dropped his head."

When 18-year-old Nickiolas Jolly denied he was a killer, his aunt Phyllis Jolly believed him. Then she found a high-powered lawyer to shoot holes in the state's shaky capital murder case against her nephew.

Phyllis Jolly, who had been Nick's surrogate mother during much of his life, followed her handcuffed nephew out to the squad car, then raced back into the house and got busy on the telephone.

From that moment until the case against him finally collapsed, Nick Jolly remained a police prisoner, first in the city jail and then in the Lew Sterrett county jail - for 14 months. Those 14 months behind bars were not an especially unusual amount of time for a prisoner in a capital murder case to wait, without a chance of making bail, for his case to come to trial. Under the current interpretation of the constitutional guarantee of a "speedy trial," some prisoners wait in the Dallas County jail as long as three years.

"He shows the scar where they clamped the cuffs down hard on him. "They said, 'We just let you out for a little bit, Jolly. Now we're taking you back where you belong."

If there is a difference in the Jolly case, it is that the case against him was so obviously weak so early on. Within a month of his arrest, all of the basic facts that eventually destroyed the case against him already had been established by his Dallas criminal defense lawyer, Arch McColl. But even McColl says the refusal of the Dallas County District Attorney's Office to back away from a patently lousy case was far from unusual. Instead, McColl says, it's a posture that was typical of then-District Attorney John Vance, who decided not to run for another term in the November election.

Henry Wade, the legendary prosecutor who preceded Vance, culled his cases carefully - an important factor in his famously high conviction rates. But McColl and other criminal lawyers say Vance took a lazier, politically safer, and much crueler route. Abetted by his hands-off chief assistant Norm Kinne (Kinne announced he would resign after Vance decided not to run), Vance told his staff to indict anything and everything in the in-box. That way, no one could accuse him of being soft on crime.

"When Hugh Lucas used to be in charge of the grand jury under Henry Wade," McColl says, "he was directed by Wade to get rid of questionable cases or to recommend at least to the grand jury that they not indict cases. It seemed John Vance's philosophy was to try almost everything. It was much more difficult under his regime to get a fair hearing in the grand jury."

cache 1292489504Arch C. McColl, III

After his arrest, Nick Jolly spent the next year and two months in a two-bunk cell in a 30-man tank in the North Tower of the Lew Sterrett Justice Center, in a high-security area where they keep the home-invasion killers, rapists, armed robbers, and other dangerous prisoners. For most of those 14 months, he either talked on the pay phone to his family or lay on his bunk trying to control the pounding pressure inside his head. He tried not to get drawn into conversations, not even to hear the jail-house nonsense around him - the crazies who would just make him crazy too, if he talked to them, the snitches who only wanted to sell him out.

"I only talked to one guy," he says. "The rest of the time, I just stayed up in my bunk and read my newspaper or read my Bible. I didn't talk to nobody - just stayed to myself. There's so much pressure on you, hearing all this stuff in jail. People are telling you about your case or your family, and you can't get out and do nothing about it. I just stayed to myself. It just hurts to be locked up. It's like when your mamma gives you a whupping. You can take it, but you don't want to."

"If I was guilty of a crime, I could accept being locked up, because I know every man has to accept the consequences of his actions. But I wasn't guilty."

For those 14 months, the Dallas District Attorney's Office steadfastly insisted that Nick Jolly was a liar and a killer. This was their version of events:

The prosecutor told the grand jury that just after 3:45 a.m. on August 20, 1997, Nick Jolly and two other men kicked in the front door of a home at 2521 St. Clair Street in Rochester Park and rushed inside to rob the inhabitants.

The three robbers came in with guns pointed and white nylon panty hose pulled down over their heads bandit-style. They rounded up the six people inside - a middle-aged mother, her two teenage sons, her teenage daughter, her daughter's boyfriend, and her daughter's infant daughter - and ordered them to sit on the floor in the living room.

The robbers dragged the daughter, 18-year-old Helena Ceaser, into another part of the house and put a gun to her baby's head. By that time, prosecutors claimed, Helena and her brother, James Ceaser, 16, had recognized two of the robbers as their lifelong acquaintances, Nick Jolly and Tim Garrett. In spite of the disguises, according to prosecutors, Helena and James were able to positively identify the men by their voices and body language.

The robbers ordered the older Ceaser son, Corey, 19, and the boyfriend, Russell Dixon, 23, into a bedroom. Police investigators said the two young men may have tried to fight back in some way when they were hustled off to the bedroom. When they resisted, the robbers opened fire on them with a revolver and a semi-automatic. There is some suggestion in various police accounts that Dixon, the baby's father, may have seen one of the robbers putting a gun to his baby's head and may have tried to break out of the bedroom just then. Nick Jolly, according to the police version, pumped bullets into the bedroom, riddling Dixon and Corey Ceaser with holes.

The mother, Linda Banks, 41, leapt up and tried to run for it. She made it into the bathroom and was able to lock the door and jump into the bathtub for cover, but according to police, one of the robbers, either Jolly or his alleged accomplice, Garrett, fired multiple shots through the door and through the tub, slaughtering Mrs. Banks where she lay crouched for cover.

Mrs. Banks and her son were dead on the scene. Russell Dixon died hours later at Parkland hospital.

That left three people unscathed. Helena Ceaser said she had pleaded with the killers to spare her and her baby. She said Jolly had signaled to her that she and her daughter would not be killed. Her younger brother, James, also was spared. He said he had been able to wriggle out of the killer's view before the shooting began.

Certain beyond any doubt that Nick Jolly and Tim Garrett were two of the three intruders who slaughtered her family, Helena Ceaser identified them to police, according to the DA. The next morning, detectives went to the house of Phyllis Jolly and arrested Nick for traffic tickets. Later that week, he was charged with multiple capital murder. Garrett, a parole violator, fled Dallas when he learned he was wanted in the killings and remained at large for several months before finally returning to Dallas and turning himself in. Nick Jolly was then and remains convinced that Tim Garrett is as innocent as he.

In the first week of December 1998, after Nick Jolly had been in jail for 14 months, on the day his trial was to begin, he was called out of his cell and informed he would be going home. There would be no trial. The charges against him and Garrett had been dropped.

Garrett was not so lucky. By fleeing, he had violated his parole. He went back to state prison.

In the days after the cases against Garrett and Jolly were dropped, the local media engaged in a typical news-business tango. KDFW-Channel 4 did some hard-hitting pieces on the case, pointing out that, after more than a year of saying he had the killers behind bars, the DA had suddenly folded his hand.

Soon after, The Dallas Morning News weighed in with some thinly disguised versions of the official cover story. First Assistant District Attorney Norm Kinne gave an interview to the Morning News that seemed to suggest he had been forced to release two murderers because the chief witness against them, Helena Ceaser, had inexplicably refused at the last moment to cooperate with the prosecution. Assistant prosecutor Robert Dark, whose case it was, then gave his own angry, confusing interview to the News, in which he accused Ceaser of being involved in the murders of her own mother, brother, and boyfriend and vowed some day to bring her to justice.

From the beginning, the Morning News had covered the Jolly-Garrett case as a regrettable but typical story of black-on-black crime. On the day after the murders, the paper told its readers, "Police have heard accounts that there could have been a rivalry between the Jolly and Banks families over where they could sell marijuana."

A Morning News reporter set the scene: "Words painted on a boarded-up doorway across the street read, 'Stop the Violence,' but the killings told another tale of the dilapidated Rochester Park neighborhood, where residents and police say drug dealing and neglect are apparent."

Certainly the case Dark presented to the grand jury was based on the same cultural assumptions that informed the Morning News' coverage: This was a scene from the black inferno - a tale of monsters killing their own kind.

Now, with the Jolly case in shards at their feet, in a week when they had been forced to send Nick Jolly home after more than a year in jail, the authorities were making it obvious this was another chapter in the same sordid history. This is what you get. They won't even stand up for their own dead. What can we do?

What was entirely missing from the DA's version and barely visible in the coverage of the News was the other distinct possibility: that the case against Nick Jolly had been stupid from the beginning, that Norm Kinne and Robert Dark had been either foolish or without conscience in pursuing it, and that the real reason Kinne and Dark had been forced to fold their cards and send Nick Jolly home was that Nick Jolly finally got lucky and got himself a good lawyer.

"I'm not going to tell you that Nick is a saint. He will admit that he has sold a little marijuana. He's gotten into small trouble, like any kid his age in South Dallas. But he's not a killer."

Nick Jolly's mother, Vickie Goodson, lives in the Oak Hollow apartment complex near the intersection of Elam Road and the Hawn Freeway in southeast Dallas. If there is a spectrum in southern Dallas County, the Oak Hollow apartment complex, called "New Jack City" by its residents, is at the bad end. A sprawling, battered two-story complex with mansard roofs and dirty brick walls, its architecture might be described as Early-'70s Gone-to-Hell.

It's a free country, and there are a lot of choices in Dallas for places to live, even for cheap apartments. Vickie Goodson, like most of the residents of the Oak Hollow Apartments, has her reasons for being here.

On a recent weekday afternoon, several places that looked very much from the outside like drug houses were in open operation. Surly "good eyes" stood at the stoops with arms cloaked inside baggy overcoats, scanning the busy action in the parking lots. Cars pulled in and out of parking spots like traffic in front of a 7-Eleven store. A majority of the wary customers rushing in and out between the guards were black, but many were white and suburban-looking. A frequent visitor said, "Last time I came here, I had to wait to get back out to my car because these guys were out on the parking lot having an AK fight." It doesn't really matter where you're from: This is where serious IV drug use brings you.

Whatever her own struggles may be, Vickie Goodson is intense about her hopes for her sons. She insists all of her three sons are headed toward the other end of life's possibilities. "Both of my older boys graduated high school, and my baby is still at Lincoln, just about to finish," she says.

The other end of the spectrum in southern Dallas is the home of Vickie's sister, Phyllis. It's a small, tidy, frame house on Scott Street in Rochester Park, just a few blocks from where the murders occurred. Phyllis is a beauty operator with a good job and seniority. Most of the time, Nick and his younger brother, Stanley, 17, who is still in high school, live with Phyllis, their aunt.

In the living room of her house, Phyllis leans forward and speaks clearly to make a point: "I'm not going to tell you that Nick is a saint. He will admit that he has sold a little marijuana. He's gotten into small trouble, like any kid his age in South Dallas. But he's not a killer."

She asked him. He told her he had nothing to do with the murders on St. Clair Street and could think of no reason why he had been named.

She believed him, and she made up her mind to try to persuade prominent Dallas criminal attorney Arch McColl to represent him. McColl, who does not seek or need court-appointed cases, got to know Phyllis several years ago when she worked for him to pay off a legal fee.

Well-known Dallas criminal attorney Arch McColl took on Jolly's case for free after the young man passed a lie detector test.

She says, "If I thought he was guilty, I probably would have tried to get Arch to represent him anyway, just so that I could be sure he would have a fair trial. But I believed he was innocent, and I knew he really needed help. Big help."

Normally the attorney's fees, investigative fees, and other costs in a case like Nick's would come to at least $40,000 before trial. McColl did it for free - pro bono. Over lunch at an elegant private club on the top floor of a downtown office tower, he tried to explain why.

McColl, an Ivy League lawyer with a roster of famous clients and high-profile cases behind him, wasn't looking for work. But something in this case stirred him.

"I asked Phyllis, 'Did he do it?' And she said he was innocent."

But are lawyers supposed to ask that question? Between the soup course and the arrival of the salad, he ponders.

"Well, normally what I ask a client is more along the lines of, 'What do the police think?' or 'What do they know?'" He shrugs and smiles. "But I was being asked to do this for free."

Jolly had been provided with a court-appointed attorney. McColl thinks the appointed lawyer was already doing a good job for Nick Jolly. Phyllis Jolly has a different take.

"The court-appointed lawyer was OK. He was a nice guy and all like that. But I knew Nickiolas needed a fighter."

After being assured on Phyllis Jolly's solemn vow that her nephew was an innocent man, McColl went to the jail and met with Nick himself. "I liked him," he says over the salad course. "Seemed like a nice kid."

With the aunt's vow and his own opinion now in hand, McColl decided next to bring in Eric Holden, one of the nation's top polygraph operators. Nick got on the box and swore he was innocent. According to Holden, he passed.

"So I had three things, none of which necessarily meant anything at all," McColl says over coffee. "His aunt said he was innocent. I liked him. And he passed the polygraph."

He took the case.

Lawyer and former state District Judge Larry Baraka handled the defense for Tim Garrett, Jolly's alleged accomplice. Baraka noted a major discrepancy in police accounts of the murders: The initial report describes the attackers as "unknown suspects."

David WellsDavid WellsBy then, Garrett's lawyer, Larry Baraka, already had brought in David Wells, a private investigator. Wells, a hulking man given to open collars and Western boots, operates from the offices of his bail-bond agency in South Dallas. He worked for Royce West when West was representing Dallas Cowboys football player Michael Irvin on drug charges. Wells was a constant and intimidating presence at Irvin's elbow during the trial, able to discourage many reporters from approaching Irvin in the corridor with pesky questions just by staring at them.

"I told the Jolly family, 'If your man is innocent, I'll find out. But if he's guilty, I'll find that out too,'" Wells says.

One of the first things Wells did - something the police almost never do in South Dallas - was walk around Rochester Park and ask people if Nickiolas Jolly was the kind of person capable of kicking in a door and filling a family full of bullets.

"Everybody said no," Wells says in the back office of his bond agency.

Rap videos are playing softly on a television set at the far end of the room. A framed portrait of a black Jesus rests on the floor, propped against the wall.

"So I had three things, none of which necessarily meant anything at all. His aunt said he was innocent. I liked him. And he passed the polygraph."

If people in the 'hood say no, that means something to Wells. "Usually, if it's a bad guy, sooner or later somebody's going to take you aside and say, 'Hey, I saw this guy do this or that,' or, 'Yeah, he's into some bad things.' But everybody who knew Nick Jolly just said no, that's not him. That's not Jolly."

Wells, for one, doesn't see racism, necessarily, in the fact that Nick Jolly got locked up for 14 months.

"Anytime you have three people dead and the witness IDs the guy as the one who did it, he's going to be in jail. That's just how it is."

But he's willing to concede that there probably is a split, a divergence, a difference in the way the police and the DA approach a case when the defendant is an African-American male from South Dallas, and the way they deal with it if the defendant is a socially connected white kid. "It's probably easier to get a doubt in their minds if it's not the black kid," he says.

Wells did more than gather personal impressions. By that point Helena Ceaser was the only ID witness against Jolly. Her younger brother, James, had been dropped by the police and the DA for unexplained reasons.

In the early versions of the crime, police had down-played the suggestion that people in the Banks-Ceaser house might have been drug dealers. Helena Ceaser was described as having a "clean" record. But Wells turned up a very different picture. Nick Jolly was the one with the clean record, with no prior history of anything more serious than traffic tickets. Helena Ceaser and her dead brother, on the other hand, had a reputation in the neighborhood as mid-level drug dealers.

Certainly there was an obvious question that might have leapt to the minds of the investigators, including assistant DA Robert Dark: If Helena Ceaser was a drug dealer of some kind, and if the people who broke into her house and murdered her loved ones were drug dealers, and if she did, in fact, have some notion who they might be, why on earth would she name them to the police? Or, more to the point, why would she give the right names?

Why wouldn't an investigator assume that Helena Ceaser would be a whole lot more afraid of the killers than anything or anyone else? Why would an investigator take Helena Ceaser's word at face value for anything?

But the plain appearance of the case is that the DA and the police not only took her word at face value: They probably squeezed it out of her. The minute the case fell apart, when Dark finally was forced to send Nick Jolly home, he told a reporter for the Morning News he thought she was in on the murder and he was going to find a way to prosecute her. If it was that easy for Dark to make a very serious allegation about a person who'd never been charged with a crime in the incident, then isn't it possible the same kind of accusation probably got going almost as soon as the police arrived on the scene?

Come on, Helena. Why are you alive, and they're dead? You know something about this. This is about drugs. This is about you. Give us somebody. Or we'll take you.

So she gave them someone. Nick Jolly. The person she feared least.

The point is, a name was enough. Some black guy from the neighborhood. She named him. Case made. File closed. Lock him up. It was a case made by foreigners - cops and DAs who couldn't walk up and down the street and find out from people what the real deal was. The only people they could talk to were the ones on whom they had official leverage.

Dark angrily denies that's what happened. He insists Helena Ceaser's word and her word alone - that she had recognized this man by voice through white panty hose pulled down over his head - was all the case he needed.

But the other side of Dark's coin, now, is his argument that his case fell apart because Helena Ceaser is a sick killer - as he alleges - involved in her own mom's murder. Isn't there an element here of having it both ways?

"I've talked about this case, and I'm tired of talking about it," he shouts on the telephone. He says the case fell apart because Helena Ceaser and others in the house "were in on it."

"I'm convinced," he says, gaining composure. "I wasn't at the time, but now I'm convinced they were in on it. And if the days come when we are able to gather the evidence, we'll argue that in court."

The day the case fell apart, Channel 4 got to Helena Ceaser, once in the courthouse and once in a friend's back yard in South Dallas. She angrily denied in both interviews that she was in on the killings and called Dark a liar. Dark said she had failed to show up for numerous appointments and was unwilling to testify against Nick Jolly in court. In both interviews, she insisted she was ready to go to court and testify against Jolly anytime Dark wanted her to.

Since then - perhaps unsurprisingly, after Dark accused her of murder on TV - Helena Ceaser has vanished. Friends in the projects and people at New Jack City, where she sometimes hung out, said just before Christmas that nobody had seen her in weeks.

The same street talk that said Nick Jolly wasn't the killer paints Helena Ceaser as a very unlikely suspect as well. Gossip and her own arrest for drug-dealing months after the murders indicate that she and her brother and boyfriend probably did sell marijuana. Jolly's mother, Vickie Goodson, points out that in that trade lots of bad things can happen, especially if a person comes up short. But a conspirator in her own mother's murder? Goodson thinks the much more likely story is that Helena was as much a victim as anyone.

Private investigator David Wells went door to door in South Dallas, inquiring whether Jolly was the type of man who'd slaughter a family. "Everybody said no," Wells says.

Maybe she did know something. Maybe there was an element of truth in her story: Perhaps she did guess or see who it was. But whatever she knew, she was probably afraid to tell it to the cops.

The fact is that Dark's case against Nick Jolly was already hopelessly flawed and headed for certain defeat in court long before he decided he had a problem with his main witness. For one thing, Arch McColl, the Ivy League lawyer with the fancy downtown address, was doing what the police and the DA wouldn't do: He was out there in Rochester Park day after day, just like David Wells, walking up and down the street button-holing people.

"No, normally that's not something I do," McColl says. "But the court only allows $500 for investigation, and I was sure that had already been spent by the court-appointed lawyer. So we were dependent on our own resourcefulness. The first priority was to get to know people who knew him."

McColl's gumshoe efforts were productive. One by one, day by day, with Phyllis Jolly's help, he came up with witnesses who had seen Nick Jolly the night of the murder. They saw him shambling home drunk after an evening of drinking beer and cognac on the street with his friends, two hours before the murder took place, and falling asleep on a bed in his mother's house at New Jack City, miles from the crime scene.

Vickie Goodson signed a sworn statement and passed a lie detector test affirming that her son had spent the night at her apartment. Other witnesses saw him in the morning when he reluctantly dragged himself out of bed with a whopping hangover to drive his younger brother to school in his aunt's car.

McColl found witnesses who said they had heard Helena give police information on the night of the murder that was in conflict with the story that appeared in later police reports. He found witnesses who said they had heard her say the shootings that night "didn't go down right."

Dark's case against Nick Jolly was already hopelessly flawed and headed for certain defeat in court long before he decided he had a problem with his main witness.

McColl took all of his witnesses to the polygraph expert. They all passed.

Phyllis Jolly laughs when she recalls how obsessively McColl worked on Nick's case. "I'd look out my window, and there he was, walking up and down my street, talking to people. He'd call me all the time. Sometimes I had to say, 'Arch, just relax a little bit and calm down.'"

In the meantime, McColl was giving close scrutiny to the state's own evidence in the case, and he was finding significant problems with Helena Ceaser's version of the story - or what the police said was her story.

By the time Dallas police detective Jesus Trevino took his oath at the first major pretrial hearing on September 2, 1997, the story he told the court was that Helena and her brother James had instantly and clearly recognized Nick Jolly as one of the shooters.

"As far as their faces, which appeared distorted through the stocking, no," he testified. "But as far as knowing the person and their behavior, their build, their mannerism, their voice, there was no doubt in their mind."

Under cross-examination by McColl, Trevino testified that there had been no discrepancies in Helena's reports and statements to police. But in fact, Trevino was giving the court a much stronger case for a positive ID of Nick Jolly than seemed to emerge from the first reports filed by the police themselves.

In the initial police report from the scene, Trevino and his partner had carefully noted for the record that "unknown suspects forced their way into the residence." The impression that no one knew or admitted knowing who the robbers were mirrored what Helena had said in her initial 911 call, according to a transcript of that 3:51 a.m. conversation:

Helena: "Do y'all got an ambulance and police on the way, 'cause my brother and them is dead. I think they's dead."

911 operator: "OK, where is this at, ma'am?"

Helena: "2521 St. Clair."

911: "What happened?"

Helena: "These dudes, they just broke up in our house."

911: "Shot 'em or what?"

Helena: "Huh?"

911: "They shot 'em or what?"

Helena: "See they pulled us out of the bed. They put a gun to my baby's head. My baby, I, we, we ran, and my brother and them tried to, my brother and my boyfriend tried to...stop 'em, and they shot both of 'em. I don't know if they dead or not. I'm scared to go back in the house."

911: "Ma'am, we'll get somebody out there, ma'am."

Helena: "Thank you ma'am."

Larry Baraka, Garrett's attorney, was especially tough on this point: If Helena and her brother were certain at the scene who had just shot their mother, their brother, and the father of Helena's baby, why would the detectives have described the attackers as "unknown suspects" in their report that night? And why wouldn't Helena Ceaser have named Jolly and Garrett in the 911 call?

James Ceaser, whom the police initially had painted as an ID witness against Jolly and Garrett, seemed to fade further from the official case with every passing day, amid rumors on the street that he had changed his story several times about where he was that night, what he saw, and when and how he had escaped.

The DA had not one shred of physical evidence to tie Nick Jolly to the scene. Extensive fingerprint searching and crime-scene investigation had failed to turn up a single print, a hair, a shoe-print, anything to put Jolly at the killing. The DA, meanwhile, was dragging his feet, refusing to obey court orders to allow McColl to see several key pieces of forensic evidence police had gathered, all of which McColl suspected would help to prove his client's innocence.

It was a trash case. Helena Ceaser's word was worthless. Arch McColl would blow her off the stand in about 15 minutes. He would summon a raft of objective alibi witnesses who had passed polygraph tests, all of whom would put Nick Jolly miles from the murder scene that night. There would be no physical evidence.

Robert Dark didn't have a case. He says his case fell apart because Helena Ceaser wouldn't testify. His case might have been a little better if she didn't testify. It wasn't a case. It was a joke.

But no one would admit it. McColl made two serious runs at getting Nick out of jail before his trial. By September 15, less than a month after the murders took place, McColl had prepared a "presentation to the Dallas grand jury" outlining all of the major flaws and discrepancies in the state's case. But McColl, as the defense attorney, was not allowed to enter the grand jury room and had to depend on Dark to present his booklet of affidavits and arguments to the grand jurors.

cache 1292496704"I'm not sure they ever saw it," McColl says.

Later McColl argued all the way to the appeals court for a reduction in Nick's bail below the prohibitive level of $500,000, where it had been set. His argument, based on a body of evidence that had grown even stronger in Jolly's favor, was that Jolly was not likely to make his own strong case bad by running. But Dark would not back down from his insistence that the case against Jolly was viable, and Jolly stayed in jail.

The motion for bail reduction was filed in October 1997, but many long months dragged by before the appeals court finally turned down the request. During that time, Nick's frequent collect calls from the jail pay phone to speak to his aunt, his brother, his girlfriend, and his 7-year-old nephew became less and less frequent.

"We had phone bills like $600 and $800 a month," Phyllis says. "But I wrote to Nick and said, if it's the money, please don't worry about it. We just have to hear from you. We have to hear from you."

At the other end of the living room of Phyllis Jolly's house, listening to her tell the story of the months when he didn't call, Nick drops his head and shakes it slowly back and forth. "It just got to where it was so bad in there, talking to people outside just made it worse."

Ultimately, the case against him fell apart under its own weight. Robert Dark claims it fell apart because Helena Ceaser failed to show up for key appointments and even for court hearings. She says that's a lie: She told Channel 4 she was ready to testify any day Dark wanted her to.

Whatever the details may be, until the case against him collapsed, Nick Jolly had to lie on that bunk in the 30-man tank in the North Tower of Lew Sterrett for the first 14 months of his adult life after high school and wonder what in the hell had happened to him.

"That's the question I sleep on every night," he says. "I wonder, Why me? She's been knowing me since grade school. Her brother who got killed, him and me were friends. We had never had no confrontations or nothing. We were just friends."

Pacing around his aunt's living room, gesturing broadly with his hands, Nick Jolly says, "When you're a fresh high school graduate, you're just starting to get your thoughts together, your frame of life. And I'm lying up there thinking about it. It seems like the justice system works against every young male minority. They can just take you and do whatever they want to with you."

Just in case Nick Jolly foolishly thought his nightmare ended the day they finally sent him home, the police came around and paid him a little visit a day later. They hauled him out of a friend's car and told him he was under arrest for those pesky traffic violations they'd arrested him on in the first place.

Holding a wrist out tentatively, he shows the scar where they clamped the cuffs down hard on him. "They said, 'We just let you out for a little bit, Jolly. Now we're taking you back where you belong.'"

As soon as he got before a judge, the judge agreed that 14 months in jail probably could be considered more than enough time already served for his traffic violations, and he was sent home again. But the lesson was clear. Whether the case against him was ever good or not, whether he was guilty or innocent, none of that mattered. Now, by beating it, he had pissed off the system.

"I honestly think the Dallas Police Department wants to get me so bad, they would have someone plant something on me," he says. "They got me so scared, if someone tried to break in my house, I'd be afraid to call the police, because they might come and take me to jail. That's why I just stay at home and try to keep to myself."

"I can't get a job. I went to a plant the other day with a friend. They hired him and not me. Later that evening, my name came up on the news again."

"I got the big picture now. The system is dirty. It's corrupt. The Dallas Police Department is dirty, and I honestly think they want to pull me down to their level. But I'm a strong man. Just because the system is corrupt, I'm not going to let it corrupt me."

"I just want people to know how I feel. I feel like I'm an animal, trapped inside a cage. I'm free, but I'm not free."

Article Reprinted with Permission of the Dallas Observer

Article © 1999 New Times, Inc. All rights reserved

The Few, The Proud, The Battered

At Harlingen's Marine Military Academy, the line between discipline and abuse is sometimes as thin as a knife's edge

By Ann Zimmerman

published: January 08, 1998

At 3 a.m. on a humid night in early October, Gabriel Cortez's screams awoke his fellow cadets in the Bravo Company barracks at the Marine Military Academy in Harlingen. Boys rushed into Cortez's darkened room to find the 18-year-old high school senior soaked in blood and lying in his lower bunk bed, his throat slit almost ear to ear. His 13-year-old roommate, who caught a glimpse of the attackers as they fled, lay motionless in his top bunk, afraid to move. The cadet company commander raced downstairs to summon drill instructor Mike Pruitt -- the only adult in charge of the 72 boys in the barracks. Pruitt dialed 911, and the police and an ambulance arrived within minutes. Cortez was taken to a local hospital, where it took 28 stitches to close the deep gash on the cadet's neck. A week passed before he felt well enough to return to classes at the school, which has a reputation for being among the most rigorous military academies in the country.

Within days, police arrested 17-year-old roommates Jeremy Jensen and Christopher Boze, after several cadets identified at least one of them as the person they saw fleeing the room the night of the attack. Jensen and Boze were corps leaders at the academy with almost spotless records, a fact that made the slashing that much more inconceivable. Although the two teenagers were indicted on December 19 on charges of attempted murder, no motive has emerged for the attack, and prosecutors have refused to discuss their case.

Except for the thick, leathery scar that encircles his neck, Cortez, a round-faced boy of medium build, with large dark eyes and cocoa-colored skin, has healed -- at least outwardly. But the damage the attack has inflicted on the school's once-stellar reputation may be harder to repair.

The Marine Military Academy's top brass and staunch supporters -- its board boasts high-profile and high-powered businessmen, including Hugh McColl Jr., chairman of NationsBank Corp., and Barry Zale, a scion of the Zale jewelry-store family -- tried to assure parents and the public that the slashing was an isolated and anomalous incident. But in the months since the attack, an unsettling picture of the academy has begun to emerge.

The school was founded and is run by former Marines, and in its promotional literature and recruiting seminars it is described as a college-preparatory school that teaches boys with "good character" to be leaders through a military regimen of strict rules and discipline. Hazing and instruction through intimidation are forbidden, as are drugs, alcohol and tobacco, according to the school handbook.

But in reality, say former cadets and their parents, drugs, alcohol and computer-generated pornography are rampant. The school, they say, more closely resembles a chapter out of Lord of the Flies than a high school version of the U.S. Naval Academy at Annapolis.

They say it is a place where older cadets -- ages range from 12 to 20 -- frequently misuse their authority to savagely berate and beat younger cadets -- sometimes with the permission of staff -- and where younger cadets live in fear of retaliation if they report the misdeeds of their higher-ranking brethren. Inside the wrought-iron gates of the academy, say former drill sergeants, deans and trustees, is a dangerous mix of too many cadets with serious emotional and behavioral problems and too little adult supervision and counseling. Drill instructors, who are on duty seven days a week, 24 hours a day, are expected to keep as many as 80 boys in line.

Disgruntled parents claim the staff hides or minimizes the boys' accusations, telling them their sons are exaggerating in order to be taken home or that they deserved whatever beatings they got. Staff members have dismissed physical and sexual assaults as innocent roughhousing. "Boys will be boys, after all," parents repeatedly are told.

The Cortez slashing brought into sharp relief what many former cadets had been trying to tell people for years -- that a climate of violence and depravity pervades the academy. For the last two years, Dallas criminal defense lawyer Arch McColl has been investigating cadets' allegations of mental, physical and sexual abuse at the school. In November, McColl filed a class-action lawsuit against the MMA on behalf of 11 anonymous cadets who claim they were subjected to varying degrees of hazing and abuse. The suit, which was filed in Brownsville, also accuses the school of fraud and deception and seeks a full refund of the cadets' tuition, as well as actual and punitive damages.

Academy officials refused to be interviewed for this story. But in a news release issued shortly after the lawsuit was filed, the MMA said, "Once specific allegations are made known to us through the appropriate legal process, we will be able to address each of them. Until more information is forthcoming, the academy will not respond, but stand [sic] ready to defend its excellent reputation of providing an environment conducive to learning and of building boys into men."

Most of the cadets included in the suit have filled out sworn affidavits describing conditions at the school, which McColl has not made available to the academy. (Copies of the affidavits were provided to this reporter with the names blacked out, but some of the plaintiffs agreed to allow their names to be used in this story.) These affidavits, coupled with interviews with the former cadets, offer a chilling glimpse of life at the Marine Military Academy.

One former cadet, who now attends Berkner High School in Richardson, outside of Dallas, claims he was made to do pushups on gravel laced with glass, which made his fingers bleed. He says he was cursed frequently by cadet officers and drill instructors who called the boys "maggots" and "shit-for-brains." He witnessed weaker boys being hazed regularly but was punished when he came to their aid. On one occasion, he says, his roommate was awakened by three boys who put a powerful liniment called Atomic Bomb in his anus and sat on him until it burned.

Another, John Crumby of Dallas, who attended the MMA in 1993, says seven cadets beat him in the head, stomach and testicles with pillowcases stuffed with combination locks until he passed out. He suffered a broken nose and a hairline fracture of the jaw, and was in such pain he had to be carried to the infirmary, where he remained for two weeks. Another time, Crumby claims, a drill instructor caught him with a pack of cigarettes and made him eat the pack and wash it down with a glass of hot water. He then forced Crumby to do intense exercises -- a punishment called physical training -- until he vomited. Crumby joined the lawsuit recently after his grandparents read about it in the newspaper.

The number of plaintiffs in the class-action suit has grown to 29 since it was filed, and calls continue to come in almost daily to McColl's office from former cadets and their parents who are interested in joining. Dallas lawyer Mark Ticer says he is preparing to file another rash of lawsuits soon. He represents families from Dallas and Houston who allege their teenage sons were physically and sexually abused at the MMA during fall 1995.

A Dallas youth Ticer represents, who was 13 when he attended the MMA, claims in a sworn affidavit that several older cadets beat him in his room on at least four occasions. Once they bound him with a webbed belt and whipped him with clothes hangers; one of the cadets choked him until he passed out and threatened to kill him if he "narced" on him. A friend of the boy's at the school, a Houstonian who was 14 years old at the time, told Harlingen police an older cadet tried to force his penis into the 14-year-old's mouth and make him drink a cup full of semen.

Kay Wayne, the mother of the Dallas boy, has been on a crusade for the last two years to expose the MMA's darker side. Like many other parents, she was seduced by the school's spit-and-polish image and the seemingly clean-cut cadets with their impeccable manners and crisp, handsome uniforms. She hoped sending her son there would put him on a fast track to a military academy, which had always been his dream.

A single mother, Wayne sacrificed to send her son to the academy, working two jobs to afford the approximately $17,000 yearly tuition. And she is sacrificing still, this time to afford the psychological counseling her son has needed since he returned home.

By its nature, military school is supposed to be tough. It is frequently a last resort for kids in need of a serious attitude adjustment. So it might be easy to discount the horror stories boys tell about the MMA as trumped-up tales from kids who just couldn't cut it. But there is support for the contention that the MMA is a troubled place. Last spring, the academy came dangerously close to losing its accreditation after the Southern Association of Colleges and Schools took issue with its testing procedures and lack of a full-time certified guidance counselor. At least once in the last two years, the state director for the accrediting body had to speak to the MMA about a hazing incident.

People with intricate knowledge of the school's inner workings say its troubles stem from financial pressures placed on the academy from its recent building campaign, which led the school to aggressively increase enrollment while lowering admissions standards. These conditions result in stress for the cadets, which is exacerbated by the apparent callousness to cadets' complaints on the part of the administration.

If even a portion of what the cadets say is true, then dismissing the boys' stories may have compounded the problems and may be part of the reason life at the MMA spun so desperately out of control.

A former Air Force flight school hard by the Harlingen airport, the Marine Military Academy sits on 142 manicured acres dotted by palm trees. On a Sunday afternoon in mid-December, the campus was eerily still, with most students inside their barracks studying for finals.

Everywhere around the school are visible reflections of the Marine Corps. On a field outside the gates, next to the academy gift shop and museum, with its books of Marine lore, battle photographs and recruitment posters, sits the original plaster model of the famous Iwo Jima War Memorial -- six Marines planting an American flag -- from which the bronze statue in Arlington National Cemetery was cast.

The school sits at the juncture of Marine Drive and Iwo Jima Boulevard. On a placard at the school's entrance is the Marine Corps slogan semper fidelis -- "always faithful." The ROTC program is sponsored by the Marine Corps, and the cadets' uniforms of pressed green pants, khaki shirts and dress blues are modified versions of those worn by Marines. Part of the school's creed proclaims: "I will wear my uniform proudly and in doing so, uphold the standards established by the United States Marine Corps."

The school's logo of an anchor, globe and rope is almost identical to the Marine Corps's emblem -- so much so that several years ago the Corps requested that the academy change it. The logo was changed, but almost imperceptibly, a fact that so angered a longtime trustee, who requested anonymity for this story, that he cited it as one of several deceptions on the school's part that made him quit the board in disgust, according to his affidavit for McColl's class-action suit.

The truth is that the academy is in no way officially affiliated with the Marine Corps -- a fact noted in tiny print in the academy's literature. But as the school's president, Major General Harold G. Glasgow, noted a few years ago in a feature story in The Dallas Morning News, "If you take the name Marine out of our title, we will have a loss in the interest in the academy."

Indeed, many parents send their children to the school because they believe it is part of the Marine Corps. Actually, only 20 percent of the approximately 500-member student body is interested in pursuing a military career, and the school misrepresents how much pull it has with the country's collegiate military academies. In its brochure, the MMA claims it "provides more students to the U.S. Naval Academy than any other source, except for the president. MMA can award six appointments per year, whereas a congressman can only award two."

In reality, the academy, like many other military prep schools, can only nominate candidates to compete for highly coveted appointments, according to the Naval Academy Foundation in Annapolis. Last year, the Marine Military Academy saw five or six of its students go on to attend the Naval Academy, West Point or the U.S. Air Force Academy. In contrast, the New Mexico Military Institute in Roswell, which has twice the MMA's enrollment, sent 120 students to the academies.

What is not an exaggeration, however, is the way the academy mirrors the Marines in its no-nonsense, rigorous approach to training and discipline. One of the school's advertisements shows a drill instructor in a Smokey-the-Bear hat, nose-to-nose with a new recruit, whom he is chewing out. The caricature is not far from the mark.

"The drill instructors at MMA are former Marines who just can't get over it," says a former academy dean, a retired Marine himself who believes the military approach to training young boys is too harsh. "The time-honored techniques and traditions of the Marines work when you take 18- and 20-year-olds, send them to boot camp and teach them how to kill, but not during the formative, delicate years of adolescence."

Life at the academy begins with a three-week plebe system, in which new cadets learn the numerous regulations contained in a 72-page handbook called The Right Guide. It starts the second they kiss their parents good-bye, meet their drill instructor and get their uniforms.

"You're basically degraded verbally for three weeks, with the only break being in the classroom," according to former cadet Rett Gray of Houston. "They have to beat you down to nothing. I remember hearing, 'It doesn't matter who you are at home, because here you are a piece of shit. You're all equally worthless to me.' "

In recent interviews, Glasgow admits that part of the indoctrination consists of harshly tearing the plebes down, but says it is done for the purpose of rebuilding them into disciplined officers and gentlemen. And it's true that every cadet interviewed for this story, even those most disgruntled, still refers to his elders as "sir" and "ma'am."

The plebes learn to march and drill with a rifle, and by the end of the second day must memorize a dozen symbols of military rank. Plebes are forbidden to look anyone in the eye and must ask permission for everything, including to begin eating their meals. They must brace against the nearest wall and stand at attention for anyone with rank who passes by them. They have no privileges, must stay in on weekends and cannot call home. They are allowed to write, but in recruiting sessions, staff members warn parents not to open those letters. "There won't be anything good in it," Master Sergeant John McLaughlin told a group of Dallas parents a few years ago, according to a transcript of the meeting. " 'Mom, I love you, get me out of here, I have died and went to hell!' "

Until recently, the plebe system at the MMA was run by older students called handlers, who often abused their authority, putting plebes through punishing physical exercise that would cause them to collapse, then chastising them for collapsing. Gray, who attended the MMA in 1994 and '95, says his handler took sadistic pleasure in making the plebes do pushups on their knuckles on rocks "because it would make them bleed, and he would say, 'You like to bleed. If you want to be a Marine, you gotta bleed.' "

The plebes are now indoctrinated by drill instructors. The system is still grueling, and even drill instructors have been known to punish an entire squad for the sins of a single cadet. At the end of the indoctrination period, the plebes officially become cadets and are awarded a metal emblem to be worn on their caps. Many cadets are afraid to wear their pins, because upperclassmen are known to pound their hands on the pins, leaving bruises and red welts, in a brutal, forbidden tradition called "tapping in."

Reveille is blown at 6 a.m., and the cadets are out the door in eight minutes, provided they've made their beds to perfection and passed inspection. They run a few miles before breakfast, then spend the rest of the day in school. The academic and military departments are run separately. Studying is mandatory from 7 p.m. to 9 or 9:30 p.m. Lights are out at 10. Cadets are not allowed to sit on their beds all day, until it is time to go to sleep.

On paper, say parents, the school looks great, although it clearly is not for everybody. "And it would be great," says the grandmother of the Houston cadet who claims he was sexually abused, "if they ran the place like they say they do."

The Marine Military Academy has its share of success stories. These exemplary cadets are frequently asked to give testimonials at MMA recruiting sessions held around the state.

Parents hear from boys such as Clair Woertendyke, who left a Pleasant Grove middle school after eighth grade with a 0.83 grade-point average. At the MMA, where Woertendyke starred on the school's winning football team, the Leathernecks, he pulled his grades up to a 3.0, according to a transcript of a recruiting session recorded by a parent several years ago.

But the cadets are careful not to sugarcoat their experiences for people who attend the recruiting sessions. At this particular session, cadet Matthew Brigance, who was also from Dallas, warned the parents in the audience that the military school is not for everyone. "Parents who can't control their sons at home figure that they'll send them down here and let some 15- to 17-year-old cadet try and discipline them. That can make a situation better, or it can, in most kids, make it a lot worse. Because, I mean, if they're not going to listen to people that are closest to them and the ones that care about them more, they're not really going to respond to people that are total strangers that really could care less, aside from trying to get the job done."

Barry Zale is one of the MMA's staunchest defenders. He believes the school has nothing to fear from the recent spate of lawsuits filed against it. A trustee of the academy for the last ten years, Zale attended the MMA for his senior year in the early '70s in order to get "a better education."

"I didn't have the skills and discipline I needed for college," says Zale, who had attended public schools in Dallas.

Three years ago, he decided to send his 13-year-old son Ben to the MMA. Ben was a "C" student at St. Mark's School and suffered from low self-esteem. "He obviously needed something I wasn't giving him -- self-discipline," Zale says. "I felt the experience at MMA would help him out. I am very, very proud to say I was right. I don't think kids are supposed to like MMA, but he's thanked me for sending him. He's carrying a 4.0 average or better, and he's a real mensch. He came home for Thanksgiving and was a real pleasure to be around. I really trust this kid, and I don't know how many parents of 16-year-olds can say that."

Zale insists that the MMA is not "a barbaric place at all." Although he has read the affidavits in the class-action suit and finds them disturbing -- "They make you want to cry," he says -- he does not believe they are true. If the school were plagued with so many problems, he insists, it would not attract such high-caliber trustees. As examples, he cites Robert Lutz, chief operating officer of the Chrysler Corporation, and Harlingen Mayor Bill Card, who served as commandant of cadets at the school.

Having spent so much time at the school over the years, Zale says, he would have known about the problems if they existed. But according to the former trustee who gave an affidavit for McColl's suit, the school has taken certain steps to block trustees' access to information.

"Another example which drove me away from the school was what I refer to as the 'cover-up' bylaw in the bylaws of the school," the trustee writes. "This was the bylaw that president Glasgow got the board to pass, which prohibited board members from talking to the staff or the faculty. This was further designed to keep the board in the dark, in my opinion ... The school has a way of hushing things up so that such news never becomes public."

In a school of 500 boys, there are going to be problems, Zale says. But when they are brought to the administration's attention, he insists, they are dealt with. A few years ago, when the school received numerous complaints about the brutality of the plebe system, the student plebe handlers were replaced with drill instructors. The academy also shortened the plebe system by several weeks -- a source of frustration for the older cadets, who think the newcomers are getting off too easy.

But critics of the school insist that the student leaders are still given too much authority, which can be dangerous in a school where a culture of intimidation and brutality is so ingrained.

Take, for example, the story of Brandon Whiddon, a 14-year-old Houston boy who was severely beaten in the face by a football player last May. A school coach ordered the football player to discipline Whiddon, whose unforgivable crime was dribbling a basketball when he wasn't supposed to.

At the end of gym class, physical education coach Mike Fass ordered the class to put up the basketballs. Whiddon, an exemplary student with a penchant for being a class clown, dribbled his ball on the way. Angered, the coach told him to drop and give him 25 pushups, according to a statement Whiddon gave the Cameron County district attorney. The coach yelled to hurry up, but Whiddon wasn't sure whether he was talking to him or the class. When Whiddon asked for clarification, the coach picked him up by the back of his shirt and dragged him into the weight room. He instructed Jonathan Kyle Chapman, a 17-year-old football player who weighed close to 200 pounds, to "take care of him."

Chapman ordered Whiddon to do 25 pushups. After the boy had done 16, Chapman told him he wasn't doing them right and ordered him to start over. When Whiddon protested, Chapman took off his weight-lifting belt and slapped Whiddon across the back. At that point, the coach walked back in, and Chapman told him he was going to handle it. Chapman began pushing Whiddon into another room. Whiddon pushed back, and Chapman pummeled the boy, who stood a foot shorter than him, in the face and head as he cowered in the corner. In a statement Chapman wrote, he claimed he hit Whiddon in retaliation for Whiddon hitting him first.

Whiddon reported the incident up the chain of command but was told to keep it quiet, that the school would handle it, he says. A few hours later, when Whiddon's drill instructor saw his face, he told the boy to call his grandmother, Polly Hawkins. She phoned the police, who found Whiddon's injuries -- a swollen face, bruises and a concussion -- serious enough to take him to the hospital. Hawkins flew down to Harlingen the next day. After talking to several academy staff -- one of whom told her he didn't believe anything cadets tell him -- she withdrew her grandson from the school.

The academy fired the coach immediately, but did not expel Chapman until months later, after he threatened a teacher.

"When I have to fear for my grandson's life, something is wrong," says Hawkins. "I agree with a structured environment. The Marines look so handsome in their uniforms. You have a vision of disciplined young men with good values. But I sent him into a den of thieves and thugs."

Sadly, the characterization of the cadets as thugs and thieves may not be much of an exaggeration. In the last six years, people close to the academy began noticing an alarming trend. The school was accepting an increasing number of students with very troubling pasts. Some had severe emotional problems; others had criminal backgrounds.

With the opening of two new barracks in the early 1990s, enrollment grew from 350 to more than 500 students. One former trustee believes that the once-stringent admission requirements eroded because the school was under financial pressure from an expansive building program. Since the early 1990s, the academy has erected or renovated a half-dozen buildings, and a large student center is under construction.

The academy has an image of being very selective about its enrollment. Harlingen Police Chief Jim Scheopner, who attends monthly community prayer breakfasts at the school, says that the MMA "only takes the best and the brightest, unlike other military schools." The fact is that the school admits almost everyone who applies, according to a 1994 report by the Southern Association of Colleges and Schools, the school's accrediting agency. At the time, the agency found the academy in violation of several standards. Because the MMA did not rectify the problems for three years, the agency placed the school on probation this past spring, then moved it up to "warned" status this fall after the school finally hired a full-time counselor and improved its testing procedures.

In a letter to a school benefactor concerned about what he saw as the diminishing quality of the cadet corps, Glasgow assured him that the quality of the present corps exceeds that of any class during the last 11 years. "There is not another private military academy in the United States that has tighter admission requirements than we have today," he wrote.

Barry Zale claims that boys with serious problems and criminal histories are not candidates for the MMA -- "unless a parent is not being truthful," he says. "But once their background is found out, they're thrown out."

Then how to explain Justin Waltz's presence at the academy? According to Teresa Waltz, Justin's stepmother, the boy was in serious trouble with the law in Huntsville when he was admitted to the MMA in the fall of 1996. Justin had been arrested on charges of burglarizing several houses and of aggravated assault on a child -- a record the MMA was aware of when his stepmother contacted the school, she says. "They told me they would take him before he was convicted," says Waltz. "So we made a deal with the prosecutor that he wouldn't prosecute him if we sent him to MMA. MMA said they could straighten him out."

Justin Waltz was in constant trouble at the MMA. He stole a phone credit card from another cadet, and he and his friends charged $2,000 worth of calls on it. He told his stepmother that older cadets beat him. This fall, the school let him withdraw after he badly beat another cadet. But when Waltz arrived to pick him up, Justin was gone.

"I found him myself with no help from them," says Waltz. "It was a big waste of money. They said they had plenty of adult supervision, but it was kids supervising other kids. He's worse now than when he went in. He's a little stronger, a little bigger and a little meaner."

Waltz is not an isolated case, according to former drill instructors, who say many of the cadets in their barracks were on probation or parole. One cadet from the island of Saint Croix was sent to the MMA by court order this year after he was caught with a sawed-off shotgun.

A look at the profiles of the cadets housed in the Delta barracks in 1995 reveals that the overwhelming majority of the kids had a host of problems, according to school records. A 14-year-old boy was hospitalized the previous year for severe depression. He threatened to kill himself and his parents, suffered from attention deficit hyperactivity disorder and had had behavior problems since first grade. Housed in the same barracks was an 18-year-old who had been arrested for possession of marijuana. Also in the Delta Company was a boy on probation for unspecified charges who had a history of temper outbursts and classroom disturbances, according to brief, one-sentence histories of the boys, called entry profiles, given to the drill instructors.

In eight cases, according to school records, boys in Delta had been accepted before their grades had even arrived. So much for stringent admission policies at the MMA.

No wonder the drill instructors have such an impossible job. A former drill instructor, who requested anonymity, stated in a sworn affidavit that "at times the Marine Military Academy was like a reform school, but without the resources and knowledge that even reform schools have. I don't believe you can leave kids in charge of kids, especially given some of the problems these boys have had ... I knew that beatings, inappropriate sexual behavior, drug usage and inappropriate hazing occurred at the Marine Military Academy. I tried to protect the kids in my company from these events, and tried to dismiss the boys who did these things."

For years, the drill instructors made recommendations to the administration about how to improve the school. They requested additional support in the form of assistant drill instructors, a recommendation that was echoed in the 1994 study conducted by the Southern Association of Colleges and Schools visiting committee. That recommendation was ignored.

The ratio of adults to cadets varies among boarding schools. At New Mexico Military Institute, it is between 40 and 60 cadets to one adult. At the MMA, the ratio rarely falls below 70 to 1. Drill instructors live with their wives in an apartment on the barracks' first floors. When a drill instructor takes time off, he usually has another cover for him, which means there are times when instructors are supervising as many as 140 boys.

The drill instructors are like surrogate parents, responsible for discipline and making sure the cadets do their work. While the cadets are in classes, the drill instructors wade through a heavy load of paperwork and spend much time answering phone calls from concerned parents.

"If you have 35 to 40 kids on a floor, ideally what you would want is two adults living on either end of the floor," says Mike Sheppard, a Dallas consultant who advises parents on out-of-state mil

The Admissibility into Evidence of Polygraph Test Results

The recent court opinion from the Dallas, Texas, Court of Appeals ( Leonard v. Texas), which decided that polygraph test results are admissible evidence in a probation revocation hearing, is both good and bad for the citizen-accused. It is good for one charged with a crime, for example, who can now present polygraph evidence to a judge that he did not consent to the entry of a police officer into his apartment to search it, even though the officer testifies that he had permission from the accused to enter the apartment. Similarly, it is good for a citizen-accused who can present polygraph evidence to a grand jury to show that the allegations against him/her are not true, and that he/she should not be charged with a crime based on those false allegations. (However, polygraphs have usually been submitted to grand juries without objection in the past in Texas.) The case did not hold that polygraph evidence is admissible in a jury trial, only in a probation revocation hearing held before a judge. However, the next logical step would be for attorneys to try to persuade a judge to admit polygraph evidence in a jury trial.

The court decision is bad for the citizen-accused because polygraphs are only as reliable as the polygraph operator; and, therefore, in the words of one former president of the American Polygraph Association, depending on the skill of the operator, a polygraph result can be "a flip of the coin." Polygraphs are often unreliable for at least two reasons: 1) The subjectivity of the operator, including the type of polygraph test the operator selects, the skill level of the operator who grades the test results (the charts), etc., and 2) the inescapable risk of simple human error in communication caused by the almost infinite variety of culturally based nuances in all languages (including English), that are inherently involved when one human questions another and must interpret those answers.

For example, that same former president of the American Polygraph Association, referenced above, gave, a few days apart, the exact same polygraph test twice to this attorney's client with contradictory results. The first time the client failed the test; the second time the client passed it. The client was accused of fondling his 15-year-old niece. After he failed the first polygraph test, this attorney confronted the client and accused him of lying. The client adamantly professed his innocence, but he said that he had taken cocaine a little while before he had walked into the TV room where his niece was; however, he had not told (and he had not been asked by) the polygraph examiner about taking any drugs or other substances.

After the client failed the first test, this attorney asked the well-regarded polygraph operator (who had administered the first test) whether the client's omitted disclosure could have caused the client to flunk the test. The response of the polygraph operator was, "Arch, the test just shows whether there is deception or not, not the reason for the deception." The operator agreed to (and did) re-test the client for free; this time, however, the client disclosed to the polygraph operator the fact that he had taken cocaine on the night of the accusation. The client passed the test. This client was Hispanic, he could not afford an attorney, and the Catholic priest of this attorney's church had asked this attorney to represent the man because the priest had thought that he was innocent. Unfortunately, after the first polygraph test, most criminal defense lawyers, even good ones, would have concluded, just as the competent polygraph operator did, that the client was guilty, without further inquiry. This one, simple example, however, shows the very real limits of a polygraph in determining guilt or innocence – Scary, isn't it?

On the other hand, consider this case: An innocent man, age 30, was wrongfully convicted and sentenced to two consecutive life sentences for an offense he did not commit. His original defense lawyer had assumed (without good reason) that the innocent man would plead guilty, so the defense attorney did not prepare for trial. After being convicted and sentenced to two consecutive life sentences, under Texas law, the innocent man would have never been released from prison. That is, no parole was legally possible. After four years, this defense attorney was hired to investigate the possibility of a post-conviction application for a writ of habeas corpus, based on evidence of innocence that the original defense attorney did not bother to learn about, because he did not investigate the case. The District Attorney also wanted the client to take a polygraph test.

However, a proper polygraph requires a baseline of guilty reactions from the subject, to questions that create a guilty physiological response (quickened heart beat, etc.). A typical question, for example, is, "Have you ever fudged on your income tax returns?" The problem with a question like that is that a person in the position of the innocent man, with absolutely no prospect of ever being reunited with his family, doesn't care any longer about something like income taxes. So he does not have a guilty reaction to such questions. What questions would you propose to ask the man to establish a baseline of guilty reactions to compare with the relevant questions related to the actual offense?

After the baseline was established and the test was given to the client, in order to strengthen the impact of the polygraph with the law enforcement authorities, this lawyer, whose client had substantial resources, sent the polygraph test results to two other polygraphers in two other states, who had outstanding reputations. The polygraph charts were to be graded "blind," without the additional polygraphers knowing the client's name, the original grades given to the test results or anything else about the case, except the questions, the answers and the charts. When all three examiners passed the client and determined that there was "No deception," the impact of the polygraph was enhanced and was very helpful in freeing the client, combined with a very thorough investigative due diligence, over a period of nine months, that uncovered evidence showing the client's innocence that had not been presented by the defense counsel and that could have made a difference in the outcome of the case.

The original defense lawyer was found to have failed to render "effective assistance of counsel," a right guaranteed to all people in the United States (including non-citizens) by the Sixth Amendment to the U.S. Constitution, as made applicable to the states by the 14th Amendment to the U.S. Constitution. In this case, based on all of the above, the result was a new trial for the innocent man, after which he was freed and went home to his loved ones. A polygraph run by and confirmed by competent polygraph operators, the administration of which is monitored closely by the criminal defense lawyer, can have a substantial impact on the results in a criminal case, including a post-conviction application for a writ of habeas corpus.


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