As the case of 51-year-old Mark Grant shows, having a sentence commuted is challenging but the obstacles to a declaration of actual innocence are even greater.
Mark Farley Grant has a job as a meat cutter in one of the largest kosher supermarkets in the country. He has a car he keeps clean and polished, an apartment, a cellphone and a girlfriend who loves him. He has, above all, a freedom he cherishes more than most because he spent nearly 30 of his 51 years in prison.
But Mark Grant does not have the one thing that would erase a lingering question and possibly even provide some financial compensation for his lost years, from the time he was 14 until he was 42 — an official declaration of innocence.
Grant has been free since 2012, when Maryland Gov. Martin O’Malley agreed to his release. But the Democratic governor did not pardon Grant. Instead, he commuted Grant’s sentence to the time he had served. A pardon would have gone further to clear Grant’s name, something he badly wanted and his supporters, including law professors, believed he deserves. Over the years, O’Malley consistently declined to discuss his decision, which has left Grant in a kind of limbo, content with a workaday life but frustrated that he has never been officially exonerated of a crime he insists he did not commit.
“Every day I’m pondering it,” Grant says. “I think about where I’d be in life now if I’d never got locked up. But my close friends say to me, ‘Don’t stay in your head too much,’ meaning don’t think about it all the time. And I try not to. I try to live in the moment and try to relish each day I wake up.”
Since I first learned of it a decade ago, I’ve written about Grant’s case several times, and the case still bothers me. It bothers me that a judge sentenced a teenage boy to prison for life on sketchy evidence. It bothers me that politics kept him there long after he should have been paroled. It bothers me that the state refuses to acknowledge the evidence of his innocence or, at the least, the serious questions about his conviction — and now probably never will.
Grant’s effort last year to gain what is known as a “writ of actual innocence” raised more complicating questions: Did his defense miss things, way back when, that might have spared him a felony conviction and 28 years in prison? Was Grant convicted on perjured testimony or did his post-conviction advocates misjudge the evidence when they concluded that he was not guilty of murder?
Grant’s claim of innocence is as old as his arrest on a winter night in 1983 in the shooting death of 16-year-old Michael Gough. According to police, Gough’s new leather varsity jacket had caught the eye of some teenage boys as they walked the streets near Edmondson Village in West Baltimore 10 days after Christmas. Two of them followed and confronted Gough along Woodington Road and demanded his jacket. Gough refused to give it up, and one of the boys shot him. The victim struggled to reach a nearby apartment and died there.
Within hours of the shooting, a teenager named Mardell Brawner identified Mark “Shane” White as the boy who demanded Gough’s jacket. However, six days later, when detectives showed him photographs of suspects, Brawner identified Mark Grant as the shooter. Police arrested Grant and charged him with murder.
A year later, after White and Brawner testified that Grant was the killer, a Baltimore Circuit Court jury deliberated two hours and found him guilty of felony murder — that is, a murder that occurred during a robbery. The presiding judge, Thomas E. Noel, sentenced him to life in prison.
Grant was 15, standing no more than 5-foot-2, when he entered the Maryland Division of Corrections. In the 1980s, police and prosecutors increasingly charged juvenile offenders as adults, and judges started sending more of them to prison. That trend continued for more than three decades before the U.S. Supreme Court, in a series of rulings, found that giving juveniles harsh sentences amounted to a violation of the constitutional prohibition against “cruel and unusual punishment.” But those decisions and the understandings they represent came too late for Mark Grant, who started serving his sentence just as prison populations soared throughout the country.
In 2004, when Grant had been in prison for 20 years, an older inmate, Stanley Mitchell, showed him a newspaper story about Walter Arvinger. Arvinger had served more than 30 years for murder before a group of professors and students at the University of Maryland School of Law investigated his claim of innocence. A 2003 report from the law school convinced then-Gov. Robert Ehrlich, a Republican, to commute Arvinger’s life sentence, one of six such commutations during Ehrlich’s four years in office.
Predictably, press coverage of Arvinger’s release prompted hundreds of inmates to write to the law school. One of them was Mark Grant. “Arvinger’s case sounded just like my case,” Grant told me during one of many conversations we’ve had over the years. “So Stanley Mitchell got the typewriter out and said, ‘We’re writing to Millemann right now.’ ”
The investigation of Grant’s case by the law students and their professors revealed the following issues:
Mark White had taken a polygraph examination administered by the Maryland State Police, but neither Grant’s trial attorney nor the jury were informed that White had failed the test. White had been the original key suspect in the case, but he had made a deal with the state, pleading guilty to attempted robbery, taking a 10-year prison sentence and agreeing to testify against Grant.
The corroborating testimony of the second prosecution witness, Brawner, had been coerced. At trial, Brawner claimed to have seen Grant fire the gun used in the crime. But years later, Brawner told law school investigators that relatives of White had taken him to Leakin Park in West Baltimore, held a gun to his head and threatened to kill him unless he testified against Grant.
“Over the years,” Brawner said in an affidavit in 2006, “I have felt a great deal of guilt about falsely accusing Mark Farley Grant of shooting Michael Gough ... but felt that I had no other choice in light of the threats that had been made against me and my family.”
During the law school’s inquiry, Brawner identified White as the person who shot Michael Gough. His recantation was supported with affidavits from four people who, over several years, had heard Brawner’s statements about White. (Getting White’s reaction to these accusations wasn’t possible. He was shot to death, execution-style, on a playground in West Baltimore in July 1992. No one has ever been arrested in his murder. I also don’t know what Michael Gough’s relatives might think of Grant’s claims of innocence; state officials had no record of next of kin for him, and I have been unable to reach them.)
Another teenage boy, Eric Lowery, confirmed seeing Grant urinating in an alley at the exact moment Gough was shot. The trial jury never heard this alibi testimony.
In October 2011, I contacted Phil Dantes, a Towson-based attorney who had once served as chair of the Maryland Parole Commission. In 1984, Dantes had been the prosecutor assigned to try 15-year-old Mark Grant. Dantes told me he never would have brought the case had he known that Brawner had been threatened at gunpoint by relatives of the original suspect. That same month, Dantes wrote a letter to O’Malley asking the governor to intervene in the case and commute Grant’s sentence. By then, O’Malley had had the report from the law school for more than three years. Separately, the Maryland Parole Commission had approved Grant for release and had sent its recommendation to the governor. But O’Malley had taken no action.
His staff said O’Malley took parole and requests for clemency seriously, and that each went through a painstaking review process. But the tough-on-crime Baltimore mayor, elected governor in 2006, appeared to have embraced the “life means life” philosophy adopted — and later disavowed — by a Democratic predecessor, former Gov. Parris Glendening.
During O’Malley’s first five years in office, no offenders serving life sentences and eligible for parole were released. He commuted Grant’s sentence in the spring of 2012 only after the Maryland General Assembly forced his hand. The legislature required the governor to act on parole recommendations within 180 days or else see them take effect automatically. Faced with that, O’Malley approved Grant’s parole and that of another inmate, a woman convicted of being an accomplice to a murder in Prince George’s County in 1985.
At the same time, O’Malley rejected parole for 57 other lifers.
What was always troubling about the Grant case was O’Malley’s apparent resistance to the claim of innocence — something that begged executive action separate from the parole process. O’Malley never registered a public opinion about Grant or the pleading that had come from his alma mater law school.
Meanwhile, Grant got out of prison and found work at Seven Mile Market in Pikesville. He slowly started to build a life, getting an apartment, financing the purchase of a used car and learning how to handle money and bills.
A few years passed before Renee Hutchins, the law professor who had championed his case, filed a petition to clear his name. To achieve that in Maryland, a judge must be convinced to issue a writ of actual innocence, a legal remedy that has only been on the books for about a decade. It exists in law, in part, because of DNA.
The use of DNA in solving crimes — either by convicting a killer or rapist, or by exonerating someone wrongly accused — has been hailed far and wide as a way to avoid sending or keeping innocent people in prison.
But Maryland legislators wanted to provide a way for inmates, in cases where there is no DNA evidence, to have a shot at exoneration. And so the General Assembly created the writ of actual innocence in 2009. It required proof that new evidence could not have been known at the time of the defendant’s trial. The evidence must also create a “substantial or significant possibility” that the results at trial might have been different.
Those were Hutchins’ challenges last year when she went before Baltimore Circuit Judge Charles J. Peters on Mark Grant’s behalf. She not only brought Mardell Brawner into the courtroom to tell his story — how, at age 16, he had been coerced at gunpoint to say Grant had shot Michael Gough — but she claimed a second teenager, Troy Brockington, had been prevented from testifying in Grant’s defense. After the murder, Brockington’s family moved the boy out of the city, and he could not be located in time for Grant’s 1984 trial. “Newly discovered evidence reveals that pervasive witness intimidation ... prevented the jury from hearing Mardell Brawner and Troy Brockington testify that Mark Grant did not shoot Michael Gough,” Hutchinson argued. “This new evidence of innocence undermines all confidence in the verdict against Mark Farley Grant.”
The judge would have none of it.
In November, Peters ruled against Grant, saying that Brawner’s recantation did not amount to newly discovered evidence. In Peters’ calculations, Grant’s attorney would have had until April 1, 1986, to file a motion for a new trial. So, the judge said, there had been time, way back then, to interview Brawner and learn that he was willing to change his story. Peters also ruled that information about Mark White’s failed polygraph test was known at the time of Grant’s trial and could have been obtained, “with due diligence,” by Grant’s attorney.
Peters agreed with Andrea Mason, an assistant state’s attorney, that Grant had not answered the “threshold question” for a writ of actual innocence. Mason cited and paraphrased a Maryland Court of Appeals ruling from 1993: “Until there is a finding of newly discovered evidence that could not have been discovered by due diligence, no relief is available, ‘no matter how compelling the cry of outraged justice may be.’ ”
In the Mark Grant case, Peters’ ruling appears to be final.
“Peters wrote the decision in a way that essentially precludes review,” Hutchins told me.
What Hutchins found most troubling was Peters’ inability or refusal to understand Brawner’s reluctance to recant his testimony back in the 1980s. He had been threatened at gunpoint when he was 16 and continued to live in Baltimore, a city known for “stop snitching” and retaliatory violence. Was it really “incredible” — the judge’s word — that he did not come forward on his own and had to be located by an investigator for the law clinic 22 years after Grant’s trial?
“I thought [Brawner] was super credible,” says Hutchins. Peters’ ruling, she added, exposed “the gap between the lived experiences of people on the bench and those appearing before them.”
Peters, a state and federal prosecutor for 24 years before O’Malley appointed him to the bench in 2010, was emphatic that he did not find Brawner’s recantation, or the supporting affidavits, credible. “It is well established,” Peters said, quoting an opinion from a 1978 Maryland case, “that ‘post-trial recantations of witnesses are looked on with utmost suspicion.’ Such suspicion is clearly warranted in this case.”
“I think about what might have been. Would I have owned a house by now? Would I have been married, had a kid?”
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I sometimes receive text messages from Mark Grant, early in the morning, before he starts his shift at Seven Mile Market. Some messages contain photographs — selfies, some with his girlfriend, Karen Chisholm; some of a nephew and other relatives at family gatherings. But, in others, Grant expresses frustration that, despite all efforts to dig into his case and to present new evidence of a wrongful conviction, he has been unable to prove, to the satisfaction of Maryland law, that he is actually innocent.
Had Grant obtained a writ of actual innocence, he would have been able to appeal to the Maryland Board of Public Works — composed of the governor, comptroller and treasurer — for some compensation for his lost years. But even then, there’s no guarantee he would get it.
Research by the Innocence Project Clinic at the University of Baltimore law school shows 19 exonerated people — people who obtained either a writ of actual innocence or a pardon from the Maryland governor — from 2004 to 2017. Only one received any compensation from the state during that time.
That bothers me, too. If the state condemned an innocent person to prison, there ought to be some relief besides $50 and a bus ticket home, something to make the transition to freedom a little easier.
As for the parole process: If an inmate is eligible, and the parole commission thinks he has served long enough and no longer poses a threat to the public, he should be released. No politician should arbitrarily change the rules and block the commission’s recommendations.
Those issues came into clear focus with the Mark Grant case. Having finally been released, he thought he would be able to obtain a writ of actual innocence, then maybe ask the state for some compensation, even a few thousand dollars. But as Grant’s case demonstrates, getting the writ is tough, the path to it legally narrow.
So Grant’s hopes for even modest compensation for his 28 lost years have been dashed by a judge’s ruling he struggles to understand. How could students and professors at the law school be so convinced of his innocence yet unable to persuade a judge that he was wrongfully convicted? Grant gets angry at the memory of his late mother pulling $5,000 together to pay his trial attorney who, the judge’s ruling suggests, should have done a better job defending him in 1984.
But Grant also seems resigned to all this. He seems to be letting it go, or perhaps he’s merely benefiting from a discipline of low expectations.
Unless Gov. Larry Hogan were to take an interest in the case and pardon him, through his powers of clemency, Grant probably will never be officially free of the lingering question nor receive a dime from the state.
“Clemency is always about justice,” said Hutchins, who still believes in Grant’s innocence. “It’s a matter of recognizing when the arm of the state has reached too far.”
I sometimes do the math about Grant’s time in prison. I try to remember when I was 14 or 15, and try to imagine what it would have been like to go behind the walls-and-wire at that age, and stay there for the next 28 years. It’s not something that feels real, but it makes me respect what Grant has become — a guy who goes to work, who sends me photographs, who texts me amusing comments about the news of the day, with only the occasional gripe about the price of car repairs.
“I think about what might have been,” Grant says. “Would I have owned a house by now? Would I have been married, had a kid? I pondered those things when I was locked up. I know what I lost, what I’ll never get back.”
In one sense, Mark Grant should feel lucky, though I’ve never put it to him that way. Having been approved for parole, he is one of the few lifers who in recent decades actually got a governor to grant his release. In that regard, he’s better off than many other inmates who remain in prison despite advancing years and a recommendation for parole.
On the other hand, there are those 18 former prisoners who obtained a pardon or a writ of actual innocence over the last 15 years. They might not have received any compensation from the state, but they have been officially cleared of wrongdoing. They at least have that.