Saturday, 1 December 2007

They Took My Life

His wrongful arrest led to 12 years in jail. David Shephard can't make up for the lost time -- but he's determined to try.

Fear of Freedom
The euphoria washed over David Shephard the instant he walked out of prison, and didn't let up for hours, not until he finally collapsed from exhaustion, safe back in his mother's house. But after spending so much time in jail, Shephard had changed -- and so had his world. Within days the exhilaration of freedom vanished, replaced by a crippling paranoia that dogged him all day, every day.

For weeks he couldn't leave the house. When he finally did venture out, he made sure to save his bus ticket in case he had to prove where he had been. "I wanted to get back to my life," Shephard says, "but I was afraid it could all happen again."

If you stop and think about it, Shephard's paranoia is understandable. Wrongly convicted of raping a 19-year-old New Jersey woman, he spent 12 years behind bars, until an advanced DNA analysis proved his innocence. After all he'd been through -- arrested at work, ripped from his future wife and baby son, jailed for a third of his life -- starting over wasn't as easy as walking out of a cell. Nine years after his release, Shephard, now 41, is still trying to shake the notion that if it happened once, it could happen again.

To date, 143 U.S. prison inmates have had convictions overturned using DNA evidence, including 13 on death row. While these exonerations have exposed deficiencies in the judicial system, they also make an old truism painfully clear: Nothing can make up for lost time. There's simply no amount of money or job support or training or counseling that can guarantee a smooth re-entry for an innocent man who's been jailed for years.

"Prison can make healthy people literally insane. Most prisoners assume that when they get out, they'll be able to just step back into their old lives," says Dr. Laurie Vollen, a forensic scientist who is developing the first national support network for the wrongly convicted. "But they come out to nothing. If they're lucky, they'll get bus fare and a newspaper headline."

David Shephard hardly had a fair shot in the first place. His father took off before he was born. To support her three children, his mother worked a double shift as a cellular telephone operator. When Shephard was a high school junior, he dropped out to take care of his baby sister, Nataly. He'd been a good student, taking advanced classes, but he took the adjustment in stride. "I tried to make the most of my free time," he says. "I was never one to sit around." He volunteered for a local community policing program, where he met his wife, Erica Calloway, a fellow volunteer. She fell for him instantly. "David was different from the others," she says. "He was a real charmer. He was charismatic."

Shortly after the two began dating, Shephard landed a job on a ramp crew servicing planes at Newark International Airport. By the fall of 1983, when he was 20, he'd moved up to head the graveyard shift, and Erica had just given birth to their son, LeMarr. The couple were making plans to buy a house. "We were building a future," Erica says.

One morning in late December, Shephard clocked out after his shift and then headed to his car. A couple of Hillside, New Jersey detectives stopped him. They wanted to talk about a stolen vehicle. He rode with them to the police station -- the first one he had ever been in -- where the officers began pressuring him to confess not only to the car theft but to a sexual assault. They told him that a young white woman had been abducted on Christmas Eve by two black men outside the Woodbridge Mall, south of the airport. They forced her into her car and drove to a quiet area, where they beat and raped her before leaving her by the side of the road.

Shephard recalls that he was strangely unfazed by the allegations. "I told them, 'I don't know what you're talking about.' I'm thinking about what I'm going to do when I get home. We were going to look at a house; we were going to buy a car. Those were the things that were on my mind."

When the detectives started questioning him about his whereabouts on Christmas Eve, Shephard faltered, just for a moment. First he said he'd been out with Erica. Then he remembered he had been baby-sitting Nataly. "They must have repeated everything three times," Shephard says. "They interrogated me for almost six hours. Nothing made sense in the end." Still, he wasn't worried. "I never for a moment thought I would end up being charged or doing time for this."

But the police had put together enough evidence to link Shephard to the crime. The victim remembered one of the men who assaulted her calling the other Dave. And, unbeknownst to Shephard, police had brought her to his workplace, and she had identified him as one of her attackers.

After producing an arrest warrant charging him with aggravated sexual assault, kidnapping and robbery, the officers let Shephard phone his mother and Erica to tell them what had happened. Then they led him to a holding cell and closed the door.

Several weeks later, a standard test of semen found in the victim's car matched Shephard's common blood type. During a one-week jury trial in the fall of 1984, both Shephard and his mother testified, offering an alibi and pleading injustice. But after the victim identified Shephard once again as her assailant, both his public defender and the judge urged him to accept a plea bargain in exchange for a reduced sentence. Shephard refused. "I always thought I would go home," he says. "I had tremendous faith in the system." When the verdict was read and the judge handed down a 30-year sentence, Shephard's world collapsed.

In the aggressive, testosterone-driven environment of prison, Shephard's spirit was quickly crushed. Because rapists occupy a low level in the institutional hierarchy -- somewhere just above child abusers -- he was a target from day one. A gang wielding weight bars attacked him in the gym. An inmate sliced him with a razor blade. Another routinely stole his food and cigarettes.

Finally, a veteran inmate pulled Shephard aside and advised him that if he didn't start sticking up for himself, he would die. A fuse was lit. The next time the thief approached, Shephard grabbed a metal dinner tray and hit him over the head. "Make no mistake," says Shephard, who has the bulky form of a nightclub bouncer, "prison changes you. You can't turn the other cheek. They'll take everything from you."

He struggled to make sense of his conviction and filed regular appeals, but gave up hoping for sympathy. "You can't go around prison saying you're innocent, because then you're really going to get hurt." Instead, Shephard began to carve out an existence inside the penitentiary. He finished his high school degree, ran a football pool, took a job in the laundry room.

Meanwhile, his connections to the outside world grew weaker. For months, he forbade his mother and sister to come see him. He told Erica to get on with her life, and she reluctantly began to date other men. He watched LeMarr grow up over the course of a hundred sterile Saturday visits to the prison. "We never got to know each other," LeMarr, 20, says.

Back in the Game

While working in the penitentiary library one day, Shephard came across the case of Gary Dotson, an Illinois man serving time for rape. In 1989 Dotson became the first U.S. inmate to use DNA evidence to clear his name. Shephard spent hours trying to make sense of the technical and legal data in the Dotson case, and in 1992, when New Jersey courts allowed DNA evidence in appeals, he filed a petition for DNA testing of the biological evidence from the crime scene in his case, still locked away in a police vault.

Three years later, his petition was granted and the testing carried out. The results were indisputable. The semen samples disclosed two separate DNA patterns, confirming there had been two assailants. But with nearly 100 percent certainty, they also showed no match to Shephard's DNA. On April 28, 1995, Union County prosecutors moved to drop all charges against him. Shephard was free.

Shephard moved back home with his mother but quickly reunited with Erica, who says she never doubted his innocence. He took a job as a janitor at Newark's City Hall, even though it paid half what he'd been making at the airport. With money in his pocket, he tried too hard, too fast, to catch up on all he had missed while in prison. The cravings were innocent at first: Cherry Cokes, cheesecake. But they became more desperate and destructive as he squandered his money on booze and clothes. He started coming home late and missing work. "I felt like I was 19 again," he says. "I wish somebody would have grabbed me and told me to relax."

"What would you expect from a guy who lost a decade of his life?" asks Peter Neufeld, co-founder of the Innocence Project, a New York law clinic that represents prisoners with claims of wrongful convictions. "His peers had started their careers and families. David was left behind. It's impossible to just step back into the game."

Through a mutual friend, Shephard met New Jersey attorney Louis H. Miron, who had an interest in exoneration cases. The two began speaking at local high schools about the criminal justice system and Shephard's experience. Then they went on radio programs. Occasionally, skeptics would challenge Shephard's innocence; the former inmate refused to be drawn in, saying there was nothing to prove. "I've never seen him angry," Miron says. "He just rolls with it."

But in 1996 the system turned on him again. The state tried to recover $16,000 in child support paid by the welfare department to Erica during Shephard's incarceration for the care of LeMarr, on the grounds that once prisoners return to the workplace, they are responsible for child support they didn't pay while incarcerated.

"They weren't happy to take 12 years of my life," Shephard says. "They wanted more." Again, Shephard found himself in court as Miron argued against penalizing his client, given that he'd been wrongfully incarcerated.

From there, the logical question was: Who should pay, and how, for the errors that cost David Shephard so much lost time? Shephard and his attorney explored the possibility of filing a civil suit, but because no one had acted maliciously (the police had placed faith in the mistaken testimony of the victim), and since DNA testing was not available at the time of Shephard's trial, there was no cause of negligence. "Nothing could have been done differently," says David Hancock, prosecutor of Shephard's 1984 case. "The science that exonerated him was not available back then."


At the time, New Jersey had no law in place offering compensation to the wrongfully convicted, so Shephard went to work to create one. For two years, he lobbied state legislators to allow people jailed for crimes they didn't commit to collect an award of at least double their annual pre-conviction salary for each year of incarceration. On August 25, 1997, Gov. Christine Todd Whitman signed the compensation bill, and Shephard subsequently settled for $240,000.

"In the end, what David got is still not enough," says Pace University law professor Adele Bernhard, who has studied compensation issues. "He'll probably forever relive the nightmare of his time in prison. A million dollars wouldn't change that."

Shephard's settlement disappeared quickly. Some of the money went to legal fees, and to pay the debts of his mother and sister, both of whom passed away within a few years of his release. What was left went toward renovating the basement of Erica's parents' home, where the couple now live with their daughter Ciara, eight, LeMarr, and Nataly's daughter, Miechai, ten, whom they adopted after her mother's death.

In 1997, Shephard lost his job as a janitor. By then, he'd stopped his boozing and big spending, and felt hopeful he would find more meaningful work. But the 12-year gap on his résumé raised questions from potential employers. Eventually, he landed a position in the Newark public defender's office, and then worked as a counselor at a halfway house. When the local economy soured a few years ago, he was laid off.

For two years afterward, Shephard had little to do except collect his daughter and niece from school each day or watch LeMarr play on his football team. Plagued with painful rheumatoid arthritis he attributes to the long days he spent working in the prison laundry, he passed much of the time sitting alone in the apartment. "I'm not blind to the fact that I am back in a cell again," he said then. Looking back, he realizes he was profoundly depressed and wishes he'd sought treatment.

But lately, Shephard has begun to chip away at the invisible walls that confine him. Last spring, he and Erica attended a conference in New York for people exonerated by DNA testing. At the gathering, Shephard, one of the longest out of prison, found himself in the role of counselor. "The only way to get through this is by taking it one day at a time," he told former inmates as he passed out his phone number.

Some two weeks later, Shephard suffered a heart attack. But he recuperated, and now takes medication to lower his blood pressure. He also gets injections in his knees for arthritis; for the first time in years he is without throbbing pain. He has finally landed a good job working at a local county welfare agency, where he helps evaluate families applying for government assistance. "He's got purpose now, so he feels better," Erica says. "He's been in chains, but he's still very proud."

"I know it can all disappear in an instant," says Shephard, "but it's nice to have a reason to get out of bed. And I feel like I'm making a difference."

David Shephard now has dreams that aren't simply fantasies to get him through the bad times. One of these days, after he retires, he would like to move his family to Florida or California -- somewhere that's near the water, and where it's warmer. He'd also like to be a counselor again, or maybe a school football coach. But there is no rush, even if he is a few steps behind where he should be. "I'll get there," he says. "It may take longer than other people, but I'll get there. I've got the rest of my life to live."

By Graham Buck (From Reader's Digest)

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