With the most serious charge of intentional murder of a correctional officer dropped from the docket, the jury will be left weighing contradictory testimony from inmates--the only evidence in this case--as they attempt to agree on separate verdicts against inmates Abednego Baynes, Kevin Berry, Obadiah Miller, and John Bramble on counts of first-degree murder, murder during the commission of a felony, riot, kidnapping, assault, and conspiracy.
The prosecution set forth to give its final argument Monday, February 11, 2019, on the heels of a trial that took more than a month and delved deep into the terror behind the walls at the James T. Vaughn Correctional Center in Smyrna, which left correctional officer, Lt. Steven Floyd dead.
"February 1, 2017, was a violent takeover, not a protest that went wrong. It was planned, it was organized; the attacks were done simultaneously. The staff in the building were restrained; their terror began as you heard the inmates were roaming the building, cooking, chatting, visiting, smoking some weed, while Win Smith, Josh Wilkinson, Steven Floyd, and Patricia May were held captive inside the prison, where they work, were now prisoners themselves," said Deputy Attorney General John Downs.
In a nearly 90-minute closing argument, Downs said the four defendants on trial may not have been organizers, but they played varying, "vital" roles in the takeover.
"This trial is about four of the soldiers, the ones who were actively involved in subduing correctional officers," said Downs.
Prosecutors stressed that inmates, testifying in defense of the four on trial, repeatedly said none of them had anything to do with the riot, but refused to name inmates who did--even if they knew--reminiscent of the "no snitching" policy that's prevalent in prison culture. He used defense witness and prison expert James Aiken's comments to help prove his point.
"James Aiken told you it was a powerful incentive not to do that. But that’s what we have in this case. No defense witness knows anything about who committed the attack other than [Jarreau] Ayers, [Dwayne] Staats, [already convicted] and [Kelly] Gibbs, [who hung himself on Thanksgiving Day after pleading guilty]. They just say they know who didn’t," said John Downs.
He claimed the state's witnesses have breached that code, for various reasons. Among them, state's star witness Royal Downs pleaded guilty to riot in exchange for his testimony in what one defense attorney characterized as "the deal of a lifetime." Royal Downs stands to get no additional time on his sentence, and for that, prosecutor John Downs reminded the jury they must view his testimony critically and look for corroborating evidence and testimony, which they outlined.
John Downs touted testimony from Henry Anderson, who said he saw Abednego Baynes holding Sgt. Steven Floyd's arm.
"I recognize Baynes' stocky build," Anderson said.
Another inmate, Antonio Guzman, testified, according to John Downs, that he saw Baynes "running down the tier with a shank."
In closing arguments, Baynes' attorney Cleon Cauley picked that apart.
"That's not actually what he said. He said I saw him walking with a shank well after the event actually happened, well after the riot, when everything was over," said Cauley, describing a time when inmates may have been armed to protect themselves.
Cauley also highlighted what he called the failure of investigators in this case.
"The investigation as just poorly handled, there’s no way around it," noting no physical evidence ties his client to the riot and just two witnesses put Baynes anywhere near any attacks on correctional officers. He said the state's star witness noted Baynes was not involved in the planning of the riot.
"Mr. Baynes told you...he was listening to music while watching Rachael Ray. Suspect choice. If he was gonna lie about something, that was the time," said Cauley amid laughter from the jury. "My client is more than not guilty...he was completely and utterly out of the loop."
Prosecutors suggested because riot mastermind Dwayne Staats didn't recruit defendant Kevin Berry, perhaps, that's exactly why he took part in attacks on correctional officers.
"James Aiken told you about getting respect. Maybe, Kevin Berry needed to get respect. Henry Anderson saw him attacking [Officer Joshua] Wilkinson by A tier. Later, he saw him coming back with blood on him. [Inmate] Richard McCane saw him with blood and Staats told him to get the blood off," Downs recounted.
But Kevin Berry's attorney took an even stronger attack at Anderson's testimony.
"Whether he’s hoping to be part of the made-for-television series...I will tell you that he got on this stand, he put his hand on the Bible…swore to tell the truth..and he proceeded to burn a hole in that Bible, he burned a hole in that Bible so deep it wasn’t even funny," said Andrew Witherell.
Witherell went on to break down each of Anderson's statements to police and prosecutors--as well his witness testimony from trial to trial--revealing each time it was altered.
"The second statement that he makes, [Anderson] was asked specifically by the state and doesn’t give an answer," said Witherell. "Never mentioned Kevin on anything he says he’s done. Did you look at the prosecutors' face when that statement came out? Holy moly...how do we know how only by his prior inconsistent statements that his statement is in accurate?"
"He burned a hole in that Bible so bad he is not credible in the least, and that is the person the state is suggesting you believe."
Witherell went on to say being "merely present" doesn't make his client guilty of horrific crimes.
"There is no credible evidence that you have heard from that stand or that has been presented into evidence that Mr. Berry acted in anyway consistent with the alleged charges. He did not participate in a murder, he didn’t plan a murder, he didn’t foresee murder; he didn’t partake in anything," said Witherell.
Admitting his defense wouldn't be a popular notion, Berry suggested that Berry's indictment and prosecution was "retaliation" for the death of Floyd.
"And it’s probably not the most popular position to be asking someone to give leniency in some way shape or form against an inmate. But it’s right, and sometimes what’s popular--when we look at our conscious--may not be right. It may not, and I'm going to ask you have to the courage to stand up and do the right thing. Do the right thing. Do the just thing. The state has failed to prove beyond a reasonable doubt with any credible evidence Mr. Berry’s guilty of any one of these offenses."
Obadiah "OB" Miller whose name came up frequently in the first trial, was a tier man, given that job by Lt. Steven Floyd, an authority figure he admitted on the stand, he didn't really like. John Downs highlighted a litany of testimony from inmate witnesses for the state.
"Royal Downs saw him go in the building... he put on masks, he saw him on C tier changing clothes and OB told him he 'poked Floyd.'
"[Inmate Richard McCane] said his mask came down, it was loose on his face," said John Downs. "Eugene Wiggins saw two inmates attacking Floyd, one was OB; 'his mask was hanging down.' Michael Rodriguez said he saw him stabbing and punching Sgt. Floyd...later...he sees OB...with blood on his thermal, and OB tells him, 'he had to put work in.'"
OB's cellmate was Miller Price, who testified he saw OB with blood on his clothes and a dark curved knife that would drop blood onto his own sheet. Inmates Larry Sartin and Antonio Guzman testified seeing OB with "blood on his shirt."
A mixed DNA sample from the east wall of the mop closet also matched Floyd and Miller. Prosecutor Downs attempted to downplay some of the inconsistencies in testimony.
"Can anyone tell the exact same story over a period of months and years without...mixing something up...not making it up, trying to remember, remembering the major details," he said. "That’s what happens when people are involved in traumatic events--they remember the big things, details not so much."
Obadiah Miller's attorney Tony Figliola described his client as a "short-timer," serving a sentence for manslaughter that's up at the end of October of this year.
"He’s still a young man, still got a lot of time in front of him, a life, if you’re willing to give it to him. He would have to be a total freaking idiot to get involved in this whole situation," said Figliola.
Figliola picked each of the witnesses' testimony and prosecution's arguments apart one-by-one, starting with Miller's perception of Floyd.
"Floyd gives him the tier man job. Why? Why would he hurt Officer Floyd? Because he didn't like him? Bet you plenty of people don't like their boss, does that mean they're going to kill him...this is selective prosecution. One-hundred-twenty-six people are in that building, 126 suspects, the state selected only 18, and you've heard the names of people that have been implicated that aren't on that board."
He then targeted the DNA evidence--the only physical evidence picked up from the "contaminated crime scene" in a maximum security prison housing unit with no surveillance cameras.
"You heard the DNA expert, she would expect that OB’s DNA would be in that closet, he was a tier man. Ask yourself, did they test the DNA or any other tier man? That’s [police's] job. No. They’re going to blame it on OB. Why? Because everybody knows OB. Gotta blame it on somebody, let’s pick out the guy that we know. Let it be OB."
While the prosecution and inmate witnesses, with the exception of Royal Downs, have denied getting deals in exchange for testimony, both Figliola and Witherell said it's not out of the realm of possibilities down the line. Both asked the jury to consider inmates' various motivations.
"[They're] going for a commutation, you think for one minute that any attorney that’s not worth his salt is not going to put those statements in that petition, not going to get the transcripts from their testimony and put it in that petition, and have it go in front of the attorney general's office, where they’ll have to give a recommendation? No guarantee. But you think their chances are a heck of a lot better down the road if they give a story," Figliola asked.
"What am I going to get out of this? Another common theme: the state has said they haven’t promised…and I agree--the state didn’t put it in writing that’s fine," said Witherell. "It’s just unbelievable to think someone who is serving 30, 40, 50 years in prison would not want to get out or have a dream to get out, and although not promised, it’s common sense to 'keep my fingers crossed, a wing and a prayer, somewhere down the line I get a break.' It’s all they have to hope for, it's all they have to live for."
Figliola also posed this question to the jury in recounting testimony in an effort to instill doubt.
"Is a rat or a snitch or is a rat a snitch that doesn’t tell the truth? Is a rat a snitch trying to get himself out of trouble at the expense of innocent people?"
"Jarreau Ayers, don’t believe him, he only admitted to being involved. His testimony was that Staats punched Floyd. Who did the planning ahead of time? Conspiracy--you heard Dwayne Staats from that witnesses stand. Do any of you believe that that man could've been in control of anything? Nah. Royal Downs was in charge of that whole situation. Royal Downs could’ve let Floyd go. He didn’t, then he skipped town, he ran for dodge and went right to the police."
Closing arguments continue Tuesday with John Bramble's attorney Tom Pedersen making a final appeal to the jury following by a rebuttal by the prosecution. The jury is expected to be handed the case, following lengthy jury instructions, Tuesday afternoon.
Two more trials will be held in connection with the riot after a verdict is reached against these four defendants.