The fate of three men charged with the murder of a correctional officer in a violent prison overthrow last year now rests with the jury.
Closing arguments were made Thursday, November 15, 2018, signaling the end of the month-long trial in which inmates Deric Forney, Jarreau Ayers, and Dwayne Staats face murder charges in the killing of Lt. Steven Floyd.
Criminal defense attorney Ben Gifford likened the many inconsistencies among the inmate witnesses who took the stand to the film Forrest Gump--a manipulation of historical footage for the entertainment of the "audience."
"They're taking things that actually happened and plucking themselves in there just like Forrest Gump."
Lead prosecutor John Downs downplayed the inconsistencies.
"When two people see things, one might focus here and one might focus there, and this person sees what’s here, sees what’s there, watching what looks to be the same thing, different versions," he said. "Anytime something is scary...or disturbing: they see what they see and they know what they know and sometimes the little details lose their way.
Gifford, representing Deric Forney, attacked the state for its lack of evidence in the case, despite this being the largest forensic case in state history.
"Floyd didn’t deserve what happened to him but he didn’t deserve this investigation either. All we have are witness statements? There are gloves with blood on them that were never sent for DNA testing. There is blood all over Officers [Joshua] Wilkinson and [Winslow] Smith’s clothing, and they’re alleged to have been beaten by people in this prison, people who police believe maybe cut themselves in the attacks."
Instead, Gifford pointed out Detective David Weaver--lead investigator in the case--testified during trial that, in order to be indicted, a defendant was identified by just two of 126 inmates in Building C.
"I told you in the beginning of this trial that 'beyond a reasonable doubt' wasn’t defined by a number...but...I’d guess it would be higher than 1.65 percent of the evidence...and we are asked to ignore the same number of witnesses who say definitively: 'No, Deric Forney was not involved.'"
Downs reminded the jury, from the beginning, prosecutors had said this case would be dependent upon witness testimony.
"All the [evidence] that was found had very little had significance because it was the 'home' to everybody," he said. "It would have been the end-all, be-all of the case."
Gifford pointed to Chief Medical Examiner Dr. Gary Collins' testimony, which stated Floyd's wounds were "superficial" and he could've been saved, in an attempt to disprove the charge of intentional murder. He further pointed to a technicality that the riot only last 30 minutes or so.
"Had the state charged that had Floyd died during the commission of a felony and kidnapping, some of these guys indicted might probably have a lot of trouble. But the riot? It’s disorderly conduct...intending to commit or facilitate the crime of assault, that all happens first thing…so the felony murder charge, the way the state is looking at this is way too broad, and you can't buy into it," Gifford urged the jury.
Downs began his closing argument with the notion that the terror behind the walls of James T. Vaughn Correctional Center in Smyrna on February 1 and 2 wasn't a peaceful protest gone awry--as inmate Jarreau Ayers had testified he believed--but instead, a violent takeover.
"It was planned, it was organized, the attacks were done simultaneously on the staff--the correctional officers inside--they were restrained and secured in closets," described Downs. "This was a plan that was carried out with weapons, with force, with violence and, because it was it was reasonably foreseeable that not only would injury occur, but death would occur...the inmates were liberated, and they began to have fun--just walking around, talking, cooking, and eating," said Downs.
He said inmates went to great lengths to make preparations, pointing out:
"Even [kidnapped counselor Patricia] May told you the masks they put over her head had looked like someone had stitched it, it wasn’t like a T-shirt they threw over her head. Someone had prepared something to go over her head."
Gifford agreed the plan was certainly premeditated and organized--but that the inmates' testimony was as well.
"Does anybody think that these guys planned the takeover, planned this attack, and never thought 'how do we get away with this?'" he asked. "Isn’t that what people who commit crimes do? Isn’t that why we have police officers who have to work hard to catch people, because they take steps to conceal their crimes? Do any of you believe that these people didn’t talk in [prison] and say, 'Let’s say this guy did it...this guy doesn’t know a lot of people, a lot of people don’t recognize him, he’s only been in the building four weeks.'"
But Gifford appealed heavily to the jury on the prosecution's burden of proof beyond a reasonable doubt:
"If you think Mr. Forney is probably guilty…that’s not good enough. If you think it’s highly probable…not just scale a little bit tipped, but a little more tip, that’s not good enough either...even if you don’t believe the other--whatever you’re thinking--even if you think it’s unlikely, unless you think it’s unreasonable…'Hawaii doesn’t exist'—that’s reasonable doubt--and you have to acquit."
Accomplice Liability Theory
The prosecution's cases rested on the accomplice liability theory--all 16 inmates indicted are responsible for Floyd's death because they acted as accomplices in the riot and assaults. Which, translated simply, means: even if an inmate only assaulted one officer, he can be liable for the murder of another.
"There is not in the evidence, who inflicted the death blow. We don’t have the evidence that this person was the person who made sure Steven Floyd was dead and was there when he took his last breath. But the people working together to commit the assaults, to commit the riot, are responsible for the actions of the others as accomplices," said Downs.
He likened it to the getaway driver in a bank robbery:
"If you’re just driving, [and a friend] says, 'Take me to the bank'…you’re merely present at that crime scene. If you knew the person was going to rob the bank and they told you: 'I’m going to go in and give the teller a note and demand money,' and you do it anyway, as an accomplice, you’re guilty of the robbery. If you don’t know the person has a gun, and he goes in the bank, pulls out gun, and he shoots the bank clerk, the driver may be guilty of the robbery, but not of the murder, because he didn’t know that it was reasonably foreseeable that the guy had a gun, would pull it out, and shoot someone."
Except in the instance of the riot, Downs described a premeditated, violent takeover with weapons, including shanks, mop wringers, and fire extinguishers.
"Was it reasonably foreseeable that someone could die as a result of forcibly, violently taking over Building C? The evidence suggests it was, and because of that, the defendants can be found guilty as either a principal--because they were the ones that did it--or as an accomplice--because they aided. And in this crime, as you know, you had [correctional officers]...all of them had to be subdued simultaneously because you couldn’t go from one end to the other because they would have time to call for help, time to react, time to do something...and you own the actions of those other people if you agree to be with them."
John Downs said Forney was a soldier--involved in the attack on correctional officer Wilkinson and restraining him so that the bigger plan, could be accomplished. Downs pointed out that, in Forney's testimony, Forney denied having the nickname "Twin" prior to the riot.
"The evidence would suggest Deric Forney knew 'Twin' was involved, and you can infer as you’ve heard from the evidence, not a lot of people knew government names, they knew them by OB, Smoke, Nye, Diamond, Ruck...'I don’t know his real name I just knew him as Twin,'" said Downs. "So when Deric Forney said 'Oh, I only started to get called Twin after this,' that’s a little separation he wants from this case because evidence is: Twin, with Ruck and Staats and the others, took over building C in a violent manner and they should be held accountable."
Gifford argued Forney's name rarely came up in witness testimony.
"The only thing we heard about Deric Forney after all of the riot had occurred is that he went to someone’s cell for a cinnamon roll because he was hungry," he said. "He told you he wasn’t involved, if you think that there is a possibility--a probability--that he is telling you the truth, under oath, you have to acquit."
Downs said Ayers told his sister on the phone about the attack the day prior.
"Jarreau Ayers tried to tell you he thought it was going to be a peaceful protest—that’s all he knew was going to happen. That phone call tells a different story. It tells you we were conversing about this that and the other, we were going to give everybody one more 'store' and you heard that original this plan was to go off after the Super Bowl--the most viewed event in America--they wanted to watch the Super Bowl, knowing if they did it before the Super Bowl, they would be in lockdown, in the SHU (secure housing unit). So the plan was to do it after the Super Bowl, and that’s what he’s talking to his sister about: get him money for the store so he can go to commissary, so he can buy his PB and crackers. He thought that was pretty funny, when you’re planning a violent takeover of a building."
"Defendants testified Jarreau Ayers told you he only got involved because he wanted to help people out, help the medical people out, all he knew was a peaceful protest. His phone call to his sister shows you he knew more. 'He didn’t assault anyone, didn’t kidnap anyone, he didn’t murder anyone.' Evidence suggests that as an accomplice Jarreau Ayers is liable for his conduct and the conduct of the others in that violent takeover."
Prosecutors also accused Ayers of telling half-truths.
"He will tell you as much of the truth as he wants to tell you. Because on direct [examination], he said, 'I wasn’t involved, I know who was involved, I know who ordered everyone in,' and when [prosecutor] Mr. Robinson asked who was that, 'I’m not telling you.' When he was ordered by the judge [to answer], he said, 'I don’t know.'"
A Case Built on the Backs of 'Desperate' Men
In his closing remarks, Jarreau Ayers said the state's case was built on the backs of men with desperate dreams--dreams to go home.
"Antonio Guzman told ya’ll from that stand when I asked him, 'When did you realize you wasn’t gonna get a deal?' He said, 'About a week ago.' So that means while we was picking the jury and doing all these things, he still thought he was gonna get a deal. He gave his statement in February 2017, all the way until a week ago, he testified almost two years he believed he was gonna get a deal. I’ve never believed in something two years straight and stopped believing it in seven days."
He found out "something" was going to happen inside the prison the day before, Ayers said, but that shouldn't be held against him.
"Me knowing that something is going to happen is completely different than me planning something, me helping somebody do something," he said. "They charged me with planning the takeover [but] not one person got on that stand and testified that I planned anything...nobody testified they seen me with any weapons, wearing masks."
He also questioned the lack of evidence in the case.
"The state tries to come with a common sense theory of 'everybody lives in a house and you touch stuff'...if they had a glove right now that had my finger, my DNA, and my blood on the inside, and Sgt. Floyd's DNA and blood on the outside, they would be parading that glove in front of ya’ll every chance they got to show that I was attached to the glove…now all of a sudden because there’s no DNA attached, DNA doesn't matter."
Ayers went through each witness--similar to during his questioning--and pointed out inconsistencies between their testimonies and their statements made to police. He pointed out the state's star witness--convicted murderer Royal "Diamond" Downs, who plead guilty in a secret deal in exchange for his testimony--said repeatedly that Ayers, who goes by the name "Ruck" behind bars, wasn't involved.
"One thing he told the detectives over and over and over again, 'I don't know why Ruck charged.' Don’t pay attention to that, just pay attention to when he says Staats got the walkie talkie and the knife, [but] when [Downs] says, 'I don’t know why Ruck charged,' don’t pay attention to that. When he say 'Ruck was outside,' don’t pay attention to that."
Downs pointed out that Royal Downs' testimony should be viewed with great care and suspicion because he did, in fact, take a deal.
"People who take a deal may try to minimize their involvement and put the blame on everybody else; nobody wants that kind of testimony. So the court will tell you that in those cases, it should be examined with more care and caution than a witness who made no such agreement. If testimony is bolstered by others, you may rely it like you would any other witness," said John Downs as he then went through an outline of corroborating evidence.
Gifford used that approach to appeal to the jury's reasonable doubt.
"A correctional officer died. Don’t you think that, in the community of the DOC, that was a big deal? Of course it was, it was a tragedy and they lost a brother. Do you think its possible that inmates who testified--and who the DOC perceives to have helped the prosecution--that the DOC helped them out a little bit?...'We’re going to send you out of state.' You’ve heard witnesses testify they are sent out of state because of fear of retaliation, snitching. The Delaware prison system is so awful--would you lie to get out?"
'This Case is about Truth'
In his closing remarks, Dwayne Staats said this case is about "truth"--something he said the prosecution did not strive for in this case. Staats previously admitted on the stand to plotting the overthrow.
"The truth is known to reveal harsh realities. The truth also can set you free--literally and figuratively--and sometimes the truth hurts the ones you love. Even still, the truth is frequently summoned to contest dishonesty, deceit, untrustworthiness, contradictions, and fabrications. These are all byproducts of the state’s presentation, which is hedged upon a deficient investigation, and in order to steer you away from that truth, the state resorted to falsifying evidence collected at the scene...that wasn’t even linked to me and any other defendant. There wasn’t even testimony that any of us possessed anything that was found. Then they seized every opportunity to parade around photos of my co-defendants."
He accused the state of creating an illusion by strategically assembling a rotation of witnesses.
"You heard a lot of incriminating testimony especially [against] Obadiah 'OB' Miller and Lawrence Michaels. But what you didn’t hear was five witnesses that said, 'I stabbed Floyd.' Where they at??
Staats named several inmates, saying it's "obvious" that weren't deemed credible.
"But I bet they activate 'em in somebody else's trial." he said. "In this trial, there was no testimony mentioning me, as an individual, that aided in the murder of Sgt. Floyd; there was no testimony that implies that I was involved in assaulting COs Winslow Smith or Wilkinson...the state is relying heavily on accomplice liability theory," he said. "In regard to murder charges, I never intended, promoted, or facilitated the commission of that crime, and I never requested, commanded, aided, counseled [it.]"
Prosecutors accused Staats of only being concerned with his letter of intent from the governor, which he requested on a walkie talkie during hostage negotiations.
"Would someone who organized the takeover, who recruited the people got it going, have no idea what’s happening? He’s on the walkie talkie and tells you he has no idea why Joshua Wilkinson and Winslow Smith got out. All he was doing was negotiating for his letter of intent while Steven Floyd bled to death."
Staats called Floyd's death an "isolated incident."
"It was a crime committed by some people independent of me...it had no significance to the original act. Sgt. Floyd's death had no bearing on the furthering of the commission of any felony. It's pretty clear that none of us in this trial assaulted or murdered any guard," he said. "From my limited understanding of the instructions concerning accomplice liability, it seems you might be possibly asked to find one of my co-defendants--that’s not in this trial--guilty in order to testify finding me guilty of this charge--that shouldn't even be an option, especially since the rest of my defendants haven’t had their day in court yet. Isn’t a person innocent until proven guilty?"