Close to Freedom After Nearly 34 Years

Every morning, long before dawn, Benjamine Spencer slips out of his bunk, dresses quietly in his white uniform, and heads to his job. He tiptoes so as not to wake up the 110 men in his dorm room—men who have been convicted of murder, rape, drug trafficking, and other violent crimes—in one of the most dangerous maximum-security prisons in Texas. For nearly 34 years, Spencer, who is Black, has served time for a robbery that resulted in the death of a white man, a conviction he insists is “an awful mistake.” And in this, he is not alone: A Texas trial judge, the foreman of the jury that convicted him, independent investigators and attorneys, alibi witnesses, not to mention three of the four witnesses who testified against him, have all said that Spencer had nothing to do with the assault. None of that has mattered. According to Texas courts, Spencer is a criminal who should die in prison.

Yet that may soon change. After an exhaustive investigation, the Dallas County district attorney, John Creuzot, now believes that Spencer did not receive a fair trial. Spencer is expected to walk out of prison in the next few weeks.

This is a remarkable turn of events in a system that emphasizes the finality of convictions over the possibility of innocence, in which convicting an innocent person is easy, and undoing a mistake is close to impossible.

Spencer’s misfortunes began on March 26, 1987, when he was arrested for robbing and killing Jeffrey Young, a 33-year-old executive with a wife and three children. After a four-day investigation, police concluded that Spencer and another man, Robert Mitchell, had bludgeoned Young as he worked late in his office in the warehouse district of Dallas. The men allegedly stuffed Young in his BMW, drove into the poor neighborhood of West Dallas, and dumped the victim, who was still alive, in the middle of the road. They then, according to police, parked the car in the alley and ran away. No one saw the assault. But Gladys Oliver, who lived near the alley, told police that she’d spied Spencer and Mitchell dash away from the car, even though the street had few lights and the moon had not yet risen.

Spencer, 22 years old and newly married, with a baby boy on the way, had no record of violence. No physical evidence connected him to the crime. None of the fingerprints found at the crime scene or in the car matched his. The police found none of the stolen items at his house. They never found the murder weapon. Spencer also had an alibi: A neighborhood friend testified that she was with him when Young was killed. The state’s case relied entirely on the eyewitness testimony of Oliver, two young men who backed up her story, and a jailhouse informant who insisted that Spencer had bragged about the crime when they shared a cell.

Today, even the prosecutor says the evidence was astonishingly thin. “I’m reading the [trial] transcript, and I walk away going: How in the hell did I get a conviction?” Andy Beach, who prosecuted the case nearly 33 years ago, told me last month. “I mean, absolutely, there’s reasonable doubt.”

But Frank Jackson, Spencer’s attorney, believes that the guilty verdict was inevitable in 1988 Dallas. “It’s hard to overcome a dead white guy who’s killed by two black men in a black area of Dallas where you dump his body out on the street,” he told me in 2017. “It’s just hard to overcome that kind of emotional case.”

Spencer was sentenced to life at the H.H. Coffield Unit, a maximum-security prison, in 1988. During the first 12 years of his imprisonment, he appealed to anyone he could think of—attorneys, politicians, scientists who could debunk the eyewitness testimony. He struck out. What are the chances a convicted killer is innocent, and anyway, how do you prove it? There was no DNA in the case that could be tested to exonerate him. Only one person, a lay minister in New Jersey by the name of Jim McCloskey, responded to his plea.

In 2000, Spencer received a visit from McCloskey, as close to a godsend as one can imagine. McCloskey founded Centurion Ministries, the first national organization to reinvestigate questionable convictions. He is considered the father of the modern innocence movement: He won his first exoneration as a Princeton seminarian nearly a decade before the Innocence Project was launched, and his work has exonerated more than 60 people—some just days before execution. McCloskey took Spencer’s case, tracking down witnesses, discovering evidence pointing to another perpetrator, and finding scientists who stated that no one could have identified Spencer on that dark night. He and Cheryl Wattley, an attorney, presented their evidence to a Dallas trial judge in 2007. A year later, the judge found that Spencer deserved a new trial based on “actual innocence.”

Three years later, Spencer discovered that even a declaration of innocence doesn’t guarantee a new trial. (In this, Texas takes a philosophical page from the U.S. Supreme Court: In a 1993 decision, Herrera v. Collins, the high court ruled that a claim of actual innocence does not entitle a prisoner to a new trial, even in death-penalty cases.) In 2011, Texas’s Court of Criminal Appeals, the state’s highest criminal court, denied Spencer a new trial. It ruled that there was no “newly discovered evidence”—that is, most commonly, DNA—to definitively prove that Spencer was innocent. Texas judges call this standard a “Herculean task.” Paradoxically, the result was that the very absence of forensic evidence against Spencer—no fingerprints and no DNA connecting him to the crime—is the very thing that kept him in prison. Indeed, for every Ben Spencer, legal experts I spoke with say there are thousands, perhaps tens of thousands, of innocent men and women with no DNA to prove their innocence. Thanks to CSI and its crime-show progeny, the public has often come to expect DNA to solve most crimes, perfectly and quickly. But at about half of crime scenes, no usable DNA is collected.

After the ruling in 2011, Spencer faced the near certainty that he would live out the rest of his years in prison. He had exhausted all his legal appeals. He never again visited the prison’s law library, where he had searched for a legal fingerhold. He stopped working out at the prison gym. He began skipping church, although his faith remained strong. His letters to his friends and family, once a daily torrent, slowed to a trickle.

In May 2017, in search of a story for The Atlantic, I called up McCloskey, whom I knew from my reporting days at NPR. “What’s the case that haunts you?” I asked. “Oh, that’s easy,” he replied instantly. “Ben Spencer’s case. There’s probably not a day that goes by that I don’t at least think of Ben.”

Over the next few weeks, a pro bono private investigator named Daryl Parker and I followed in McCloskey’s footsteps. We discovered new exculpatory evidence. We found a new alibi witness, never called at trial, who saw Spencer with his sister at their home at the time the victim was being bludgeoned, miles away. One of the three eyewitnesses, Jimmie Cotton, eventually admitted that he never saw Spencer that night. Another eyewitness, who had died years earlier, told a friend we interviewed that he’d lied to get reward money. We tracked down the jailhouse informant, Danny Edwards, who blithely stated that Spencer had never confessed to him; Edwards had lied to finagle himself a lighter sentence. “Naw, he didn’t do it,” Edwards said. “In my heart, he didn’t do it.” All the evidence against Spencer had collapsed, except for Gladys Oliver’s testimony. When I spoke with Oliver at her apartment, she began to cry and claimed she couldn’t remember anything, because she has dementia. We published the results of our investigation in the January/February 2018 issue of The Atlantic, accompanied by a three-part podcast.

A magazine article, of course, carries no legal weight. In the end, whether Spencer would die in prison boiled down to this one thing: political serendipity. John Creuzot, a progressive, Black Democrat, was elected as the district attorney of Dallas County in November 2018. He reopened Spencer’s case, the first D.A. to do so in the three decades since Spencer’s conviction, and assigned it to the Conviction Integrity Unit.

Cynthia R. Garza, who heads the unit, read every document in the files, followed new leads, interviewed witnesses, gathered affidavits. When she emerged from her deep dive, she had unearthed several pieces of evidence that Spencer had received an unfair trial. Garza found conclusive evidence, from the jailhouse informant’s wife at the time, that the informant had made up certain details of Spencer’s alleged confession. Garza secured an affidavit with Cotton, as well as a polygraphed interview that he passed, in which he said that he never saw Spencer at the crime scene—but was pressured to say that he had, by his middle-aged neighbor and the state’s star witness, Oliver. Crucially, she found that Oliver had received $5,000–10,000 in reward money and had lied about it at trial. That admission came from Oliver’s own mouth: According to court documents, in 2010, she told two prosecutors who weren’t involved in the original trial about the reward. Garza interviewed a colleague of the victim, who told Garza that the victim’s father had said the victim’s company paid a woman whose description, the investigation found, matches Oliver’s, $10,000—a corroboration by a man who had no dog in this fight. Finally, Garza came to believe that the prosecutor, Andy Beach, had suppressed exculpatory evidence: The state knew Oliver expected to receive thousands of dollars in reward money, and that evidence should have been turned over to Spencer’s lawyers. Had Spencer’s original lawyer known that Oliver had incentive to identify someone, anyone, for the crime, he could have undercut her credibility at the trial. Beach disputes this. He believes the defense was aware Oliver had an incentive to testify. “You would have to be a Martian to not understand Gladys hoped she would get the reward,” he wrote to me in an email. “Wanted the reward. Needed it … I didn’t disclose Gladys expected the sun to rise from the east the day after she testified so guess I should have done that.”

Last week, on January 21, nearly 34 years after Spencer was shackled and incarcerated, the D.A.’s office found five grounds, or reasons to justify relief, to grant Spencer a new trial, asking the court to “see that justice is done.”

The district attorney’s office declined to comment for this article, as did the two members of the victim’s family whom I contacted. The family still believes that Spencer killed Jeffrey Young, the victim’s oldest son, Jay Young, recently told me. In a 2017 interview, Young told me that the family is exhausted—frustrated that every few years, they’re forced to relive their father’s murder. “Sometimes people look at this as winners or losers, based on decisions by public figures, the D.A.s, the judges, the Court of Criminal Appeals,” he told me. “That’s never going to change the fact that we are the losers here. We lost our father.”

For me, as a journalist who has spent nearly four years knocking on doors across Dallas, interviewing scores of people from judges to snitches, marking every legal turn and inhaling every brief, I feel both elated and deflated. Great: He will be released. When a prosecutor scrutinized the evidence, once considered rock-solid, it scattered to the wind like dandelion fluff. But why did the police and other prosecutors, D.A. after D.A., and every judge but one look askance at the glaring problems with the case? Why did they punt as Spencer watched the best years of his life drain away, leaving his wife alone to raise their son, his son without a father to teach him to swim and to drive, to launch him into adulthood?

District Attorney Creuzot is expected to join Spencer’s defense team—McCloskey, Wattley, and another pro bono attorney, Gary Udashen—to petition for a new trial. After nearly 34 years, a new trial is unlikely; the charges would probably be dismissed. And, while they wait for Texas’s highest criminal court to agree—a realistic possibility, since this time the D.A. is siding with Spencer, not opposing him—Spencer would be released on his own recognizance, probably in February.

Ben Spencer is the luckiest of the unlucky. He’s lucky because a nonprofit organization spent some $250,000 on reinvestigating his case; lucky because two of Dallas’s most prominent lawyers donated their time to litigate his case; lucky because The Atlantic, among other media outlets, brought his case to light; and astronomically lucky that the district attorney reopened his case, even though there was no low-hanging DNA fruit to be plucked. How many innocent prisoners—particularly those with no DNA in their files—draw this sort of legal and media firepower? About as many white crows live in Central Park.

This is a partial victory for Spencer. A ruling that he received an unfair trial does not exonerate him. His name would not be cleared. He would not receive compensation from the state for unfairly trying and convicting him, for stealing his years from young adult to middle age. Proving innocence could come later. But for now, Spencer’s team wants him out of the prison where the coronavirus is rampaging. No one feels the urgency more than Spencer, who is trying to remain socially distant in a room with 110 others.

For the moment, Spencer is focused on surviving the next few weeks before his release. He’s lost 25 pounds, hope and anxiety having robbed him of appetite. But he has plans. He wants to renew his driver’s license. He wants to rebuild a car with his son, now 33, a hobby they share. He’d like a Burger King Whopper, which, unlike everything else he will encounter, is probably still the same 34 years later. He’s hankering for some round-toed ostrich boots, to replace the beloved snakeskin boots he was married in 34 years ago. More than anything, he wants to remarry his ex-wife, Debra. Facing a life sentence, he had persuaded her to divorce him so she could find another love and build a new life. He wants to spend time with her, maybe just sitting on the couch watching a movie. He’s going to catch up on a lot of Netflix—whatever that is.