January 17–24, 2002

cover story

Terminal Justice

Fred Thomas' friends and attorneys are frantically trying to save the dying man from death row, claiming he’s an innocent victim of a bad cop and a shoddy investigation.

by Jenn Carbin

The neighborhood around Ninth and Clearfield, in that part of North Philly sometimes called the Badlands, was settling down from its morning routine shortly after 9 a.m. on the rainy morning of Dec. 21, 1993. Mothers had already walked their children to school, and the usual drinkers had taken up their posts on the northeast corner. Federal Express driver William Moyer, Jr. was parked near the southwest corner — not far from where a local man known to some as "Crazy Fred" was standing, waiting for a store to open — and was preparing to make a delivery.

Moyer never delivered the package. The men on the northeast corner, Willie "Greenie" Green and Charles "Countrie" Rowe, heard a bang, and from where they were sitting, Rowe could see Moyer’s feet next to one of the truck tires. But they decided not to get involved, and they left to run an errand.

Police arriving at the scene found that Moyer, a 37-year-old father of four, had been shot in the face at close range. The bullet entered his left cheek and traveled back and upward, injuring his brain stem and killing him instantly. The first cop on the scene, Officer Michael Trask, would note later that there was a trail of blood "about four house lengths" from Moyer to the gutter. The rain washed some of the blood away, but there was still plenty — enough to raise splatter issues at the trial for Moyer’s murder and call into account the credibility of witness statements.

The police found Moyer’s wallet, still on him, and $61 in his left pants pocket. They also found an opened package containing newspapers in the Federal Express truck.

By the time Rowe and Green returned, a small crowd of neighborhood residents had gathered. A homicide detective arrived within an hour and directed the mobile crime unit, which took black-and-white photographs and produced a sketch of the crime scene.

Rowe and Green returned to the corner, but avoided police and were not questioned until a cop who had no official reason to be interested in the case brought them in a day or so later. They said Frederick A. Thomas, 56, the man waiting for the corner store to open, had run around the truck after the gunshot and disappeared down an alley; Rowe said that Thomas had "seemed like he had something under his coat." He and Green became the prosecution’s star witnesses.

Their statements would become the key for an arrest and conviction. Nothing else connected "Crazy Fred" Thomas to the murder of William Moyer.

	Rallying cry: A Thomas supporter at the protest. photo: Michael T. Regan

Two years later, Thomas, a man with a history of run-ins with the law that includes convictions for manslaughter and aggravated assault, was convicted of Moyer’s murder and sentenced to death. He was tried twice; the first ended in a hung jury. No physical evidence was presented at either trial linking Thomas to the shooting.

Today, defense attorneys with the Capital Habeas Unit of the Federal Defender Association of Philadelphia contend that Thomas, known for his volatile temper and alcoholism, was the fall guy for a crooked cop and a band of drug dealers, as well as the victim of an ineffective initial defense effort. They are working tirelessly to have his conviction overturned. Recently, they’ve been given some encouragement: A Philadelphia judge has granted Thomas a hearing. On Feb. 25, Common Pleas Court Judge Willis Berry Jr., will hear the merits of his case.

Thomas doesn’t have time to spare; he is suffering from liver failure and a host of other ailments. Defense attorney Kica Matos says, "All [Thomas] wants before he dies is to have his innocence proven. He wants his day in court."

Last week, death-penalty opponents and supporters of Thomas attended a rally led by Pennsylvania Abolitionists United Against the Death Penalty, during which protesters chanted the names of Andrew Gibson, the assistant district attorney on the case, and Christopher Diviny, the chief of Gibson’s unit. They were called upon "to let justice prevail" and to stop fighting a reopening of the case.

Diviny says, however, that prosecutors are "confident that Fred Thomas is the killer."

The father of the murder victim, William Moyer, Sr. says, "I sat through two trials; with what I saw, I’m convinced he was given a fair trial."

Criminal probe: Brother Okang Erasto at the January rally for Fred Thomas outside the DA’s office. photo: Michael T. Regan

The circumstances surrounding the Moyer murder and the case against Fred Thomas raise many questions.

Records show that a male caller phoned police three days after the murder to say that he worked for Federal Express and "had heard that Moyer had been opening packages that he was to deliver" and "that whenever Moyer delivered to a certain address in North Philly, he knew drugs were being sent to the address because it was always the same address." The caller alleged that Moyer "had taken some weed and recently ‘ripped off’ a kilo of cocaine."

According to the coroner’s report, Moyer had cocaine and methamphetamine in his system at the time of the killing.

The sender of the open package on the truck — the package Moyer apparently was preparing to deliver — was listed as Colecciones Biblicas International Inc., from Santurce, Puerto Rico. Although the only contents by the time the police arrived were a few newspapers, the package was insured for $100. Perhaps more interesting, the package was addressed to Roberto Perez, a man the police never located. People living at the address, on the 3000 block of North Ninth Street, have since told defense investigators they do not know a Roberto Perez and that such packages were left on the porch frequently and would eventually disappear.

Matos has worked on Thomas’ appeal effort since it began. (She’s recently moved to Connecticut and is no longer with the Defender Association.) She says there were problems with most of the prosecution’s witnesses.

A UPS driver testified that Thomas had stalked him on deliveries, roughly between June 1992 and December 1992. Thomas, however, was serving a sentence for a parole violation between December 1991 and October 1992.

Matos also says the defense investigation wasn’t thorough enough. For example, Jeffrey Fooks, a nephew of Thomas, says he was on the corner when the shot fired, and the details he provides coincide with much of what Rowe says. He says his uncle was already on his way down an alley when the murder occurred. The police have never questioned Fooks, but according to him, they did break his door down looking for Thomas. He signed an affidavit in March 2000 stating that he saw another man exit the truck "with a package in [his] hands." Original defense attorney Jay Gottlieb says he interviewed Fooks "up and down" at the time of trial, and Fooks didn’t give him that information.

	True believer: Defense attorney Kica Matos believes Thomas is innocent and the system is guilty photo: Eddy Palumbo

Perhaps most important to the defense, Matos and defender Anne Saunders maintain that, among other things, the prosecution’s witnesses were brought to the investigation by a police officer whose reputation and subsequent conviction on charges of falsifying police documents and conducting armed illegal detentions taint the involvement of the witnesses. Rowe, the one surviving witness — Green died in 1999 — signed an affidavit in May stating that former Police Officer James Ryan was involved in bringing him in and that the Homicide Division pressured him into fingering Thomas.

Ryan was one of the state’s witnesses himself; he testified at the first trial regarding his role in the investigation. By the time of the second trial, Ryan was under investigation for criminal conduct and did not testify, though, according to several people in attendance at the second trial, Ryan was a fixture there. Mildred Thomas, Fred’s younger sister, says he "sat in the first row throughout the trial with the other police officers."

During the first trial, Mildred Thomas says, Ryan stayed close to the police and the victim’s family. She says Ryan "was always with the [Moyer] family." Mildred recalls "a confrontation" with Ryan, following a heated exchange between her daughter and someone she believes to be Moyer’s sister: "After, [Moyer’s sister] went into the anteroom by the courtroom, and Ryan came out. He started talking about putting his foot in people’s butts. I said, ‘Come on. I’m waiting.’ … He started walking toward me and his partner stopped him."

Mildred says she remembers her nephew Carl Fooks (brother of Jeffrey) approaching Ryan outside the courtroom. "He said, ‘Watch me make him mad.’ Then Carl told him the dealers had paid their people the day before, and he wouldn’t get his envelope. Ryan said, ‘If they mess with me, I’ll put my fucking boot up their ass.’" Carl Fooks has provided a signed statement about that alleged encounter.

Attempts to reach Ryan were not successful. Calls to his attorney were not returned by press time.

Brother’s keepers: Fred Thomas pictured with brothers Reginald Thomas and Charles Freeman (left to right) in 1990; Reginald speaks at a press conference held in December. photo: Eddy Palumbo

At the time of the murder, James Ryan was assigned to Highway Patrol. He was not the responding officer to the initial call regarding the shooting, nor was he assigned to the district or the case. Ninth and Clearfield was an area he "patrolled for many years," according to his testimony in the first trial. Ryan testified that the Homicide Division approached him for assistance in the investigation, and that he brought Green in.

Assistant D.A. Chris Diviny says that Ryan’s involvement begins and ends with that visit and ride to Homicide. "On the same day of the shooting," says Diviny, Ryan and another officer "brought Willie Green in. That’s the end of [Ryan’s] involvement."

Though Rowe says in his statement that Ryan escorted him to Homicide to be interviewed, Diviny says that assertion is inconsistent with police records.

In a United States District Court deposition for a different case in 1996, however, Ryan takes credit for "outstanding arrests" that include that of Fred Thomas. He also says in the deposition, "Myself and my partner went out and found two witnesses, and this led to the arrest."

In May 1995, Ryan pleaded guilty to charges stemming from the infamous 39th District scandal, including entering and searching premises without probable cause; conducting armed illegal detentions; stealing money and property; falsifying police reports, affidavits of probable cause for arrest warrants and search warrants; and engaging in illegal stops and searches outside of his district, which were never documented in the official police paperwork. He served 42 months in federal prison.

Diviny maintains that Ryan was minimally involved and didn’t taint the case. "You’re able to see what he did. Ryan didn’t take any statements. Rowe and Green testified at both trials, and after trial, as [the defense attorney] pointed out himself, they were interrogated by Internal Affairs and said they were not coerced."

Diviny says the original testimonies of Green and Rowe are what’s material. "They didn’t overreach.… They’re not saying they saw the actual shooting; they’re saying things that have the ring of truth because they’re appropriately limited by their position on the corner and what they were able to see."

In the eight years since Moyer died, people on the street at the time of the killing, as well as their relatives, have been prodded by investigators, attorneys and journalists. Joe Thornton, an investigator for the Defender Association’s Capital Habeas Unit, says, "The thing about many capital cases is that they have such long tails." The twists and turns, the crucial people disappearing or dying, are not peculiar to Fred Thomas’ case, he explains. Still, he says, "There is an inordinate number in Fred’s case."

Thornton knows the Badlands, in some ways probably as well as the people who live there. The bands of drug dealers on the corners, the crack houses and the worn faces of junkies, ex-junkies and people with secrets have grown familiar. He says there’s more to the place than meets the eye.

"The people who are struggling out of their addictions have a resiliency that only that barren a neighborhood can allow them to have," he explains. Something else you see, he says, is that the men don’t survive the ravages of drugs and poverty into old age. "There is an absence of African-American males over 40 there.… [But] I still see [Rowe] down there from time to time. There are half a dozen old guys who remind me of lions who are standing on their last legs, yet are still able to survive in that neighborhood."

He says Thomas, who suffered from childhood abuse, brain damage and alcoholism, is one of those lions. "The striking thing about Fred Thomas is, through it all, he survived."

A few years ago, Thornton tracked Rowe and Green down. Green was the first to be reached, and after several conversations, Thornton says, "I got details out of him."

Rowe and Green both would eventually recant, claiming that police intimidated them into implicating Thomas, but of the two, Green was "more remorseful [regarding] what he perceived to be his lack of courage at the time [he gave his original account to police]," Thornton says. "He felt coerced into saying stuff that wasn’t true. He felt bad — it was obvious."

Rowe signed an affidavit, but Green died of cancer before Thornton could return to have him sign a statement.

Green and Rowe’s inconsistent statements are just the beginning of the problems with the conviction, according to the defense team. This past October, a man named James Wilkerson signed an affidavit stating that he saw someone known as "Little Man" shoot the driver.

And then there’s Maria Fielding. Defense attorneys past and present speak of her with a sigh.

Police reports indicate that Fielding, an area resident who frequented the corner, gave a statement to police the day after the shooting. She said three men were involved in the shooting. She identified one as "Tony," and the defense team argues today that her description matches that of a neighborhood man named Antonio Stokley, whose record includes drug sales and possession charges. He is reputed to have been an associate of Alberto "Little Man" Arroyo, a man described by a former girlfriend as a "crack addict and gunslinger" in an affidavit signed in December.

In another affidavit, a neighbor describes Arroyo walking by the crime scene, acting suspiciously ("I remember he never looked up Ninth Street at the man [lying] on the sidewalk") and, shortly after, changing his clothes. She states that she told police about Arroyo’s suspicious behavior. Arroyo was subsequently interviewed by police, but though he has a criminal record that includes arrests for drug sales, robbery, assault and weapons possession, his explanation for changing his clothes — "It was cold" — was apparently acceptable enough to police that they wrote him off as a suspect.

They and prosecutors also apparently ignored the fact that Stokley is a nephew of Rowe, one of the star witnesses.

Kenny Miller of the State Correctional Institute at Greensburg (near Harrisburg), where Stokley is serving time for an unrelated conviction, relayed a comment from Stokley, who says he "knows nothing about" the murder. Arroyo was deported to Ecuador sometime in the past few years and couldn’t be reached for comment.

"Maria Fielding gave very graphic descriptions," Thornton says of the witness whose account poked holes in Rowe’s and Green’s. "Wilkerson was available. These [witnesses] were available the day of the homicide and the Philadelphia Police didn’t do anything with it. That may be the biggest tragedy."

Mitchell Fielding lives with his five children in a two-story brick house he proudly calls "kiddy city." A gallery of stuffed animals line the top of a sofa in the living room, and an array of plastic dollhouses are set on another. The kids’ bedrooms are stacked with toys and neatly folded piles of laundry. When his wife Maria died of cancer in 1999 at age 33, the kids ranged in age from 7 to 3, and since then he’s done his best to give them routine and warmth. A photo of Maria is set on the wall next to the door. Though she was a handful and had a drug problem, he says, she "always came home," and he likes to remember her smiling and content. The Moyer murder investigation brings up painful memories for him. "I like to forget it," he says.

Before Maria died, she spoke to him, he says, about how sorry she was that Fred Thomas had been convicted for Moyer’s murder, how sorry she was not to have been able "to tell what she observed." It’s not clear whether she knew Fred at all.

In an affidavit, Mitchell Fielding contends that two police officers visited the Fielding residence shortly after the shooting and that Maria told them, in his presence, that Thomas "was not among those whom she had observed running from the scene." Mitchell later identified Ryan, from a selection of photographs brought to him by Thornton, as one of the officers who visited the house.

Mitchell recalls Maria coming home from court in tears the day she was to testify as a defense witness, having fled because one of the officers approached her again and told her to "take a hike" and said she’d lose her kids if she testified — an account supported by Carl Fooks, who says he heard the exchange.

Jay Gottlieb, Thomas’ attorney for the first two trials, says Maria Fielding was "absolutely vital" to Thomas’ defense argument. "She names three [perpetrators], not Fred," he says. "And one is the nephew of one of the [prosecution’s] eyewitnesses."

A few days before the first trial began, however, Fielding called Gottlieb and said she was sick, and "a man who said he was her husband got on the phone and just said, ‘She’s not coming in.’"

Mitchell Fielding insists, however, that Maria was preparing to testify and that he dropped her off at the courthouse himself; seven years later, he’s not sure which trial it was. At least four people City Paper spoke to described her in the courtroom or outside of it, and there are signed affidavits to that effect that include accounts of Ryan allegedly intimidating Fielding.

Thornton says he believes that Fielding actually showed up at the second trial after having "a crisis of conscience." Regardless, Fielding is still the heartbreak for this case, in Gottlieb’s opinion.

After Fielding phoned to say she wouldn’t testify, Gottlieb says, he approached the court for a continuance so she could be found and brought in. "We had a conference, in chambers. [Prosecutor Roger King] said, ‘How important is she? She’s just a street junkie.’" Gottlieb says he pointed out that the prosecution’s witnesses, Rowe and Green, both had criminal records and were no angels. The judge agreed with the prosecution and denied a continuance. Gottlieb says, "I told the judge that Fielding was as vital a witness as there ever was, anywhere." The judge, Justice Juanita Kidd Stout, issued a bench warrant for Fielding, but she was never picked up.

Gottlieb doesn’t know if she appeared intending to testify; he never met her in person. Just as closing arguments were to begin in the first trial, relatives of Thomas approached him and said Fielding was in the building, in another courtroom. Gottlieb asked the judge for time to locate her, and ran out of the courtroom with one of the people who saw her. He didn’t find her. "I needed her desperately," he admits.

The late Fielding wasn’t the only witness that got away. Brenda Gregory gave a statement to police the day of the murder, mostly to do with sounds outside her window. "Brenda Gregory heard the footsteps of multiple individuals and out of her window sees two guys [running] south of her house," Gottlieb says.

Gregory never showed either, according to Gottlieb. She has since suffered a stroke.

In a motion to dismiss , Assistant D.A. Andrew Gibson dismisses Fielding’s account, based on her description of "watching the gunman fire two shots at the victim," because "the police never recovered any physical evidence showing that a second shot had been fired…"

Gibson argues that "the account of the killing described by Mrs. Fielding was completely at odds with the physical evidence found at the crime scene." The prosecutors hold that blood spatters found inside the truck and the upward trajectory of the bullet show that Moyer was standing inside the truck when he was shot, not on the ground as Fielding described.

But in Fielding’s statement, she describes hearing "Pow! Pow!" — not seeing the shooting.

Defense attorney Anne Saunders contends Fielding wasn’t an expert on ammunition sounds. "When a shot is fired, there can be reverb," she says.

Saunders and her team recently added Albert Harper, a forensics expert and director of the Henry C. Lee Institute of Forensic Science at the University of New Haven, to its list of witnesses.

Harper, who has examined crime-scene photos, police-investigation materials, trial exhibits and the coroner’s report, refutes the prosecution’s account of the shooting. "It is clear that at the time he was shot, Mr. Moyer’s feet were on the ground outside of his truck," Harper writes in an affidavit. He also concludes the testimony of the police expert regarding "the placement of Mr. Moyer and his assailants was inaccurate and not consistent with the evidence."

According to Harper, one of the problems is that the Philadelphia Police, at the time of Moyer’s murder, did not use color film to take crime-scene photographs. In an affidavit signed Jan. 3, he states, "It is very difficult, if not… impossible, to render a reliable opinion concerning the interpretation of blood spatter from black-and-white photographs."

There are other possible holes in the prosecutors’ case against granting Thomas an appeal.

Prosecutor Andrew Gibson argues that "Mrs. Fielding’s description of having seen ‘Tony,’ one of the assailants, flee through a specific alleyway was also proved false, because the police investigation … revealed that both ends of the alley were secured by locked gates." Defense attorney Anne Saunders says prosecutor Roger King asserted this at trial, but presented no evidence or testimony.

(This past August, a woman on North Ninth Street signed an affidavit stating that "there was no fence blocking the alley" when she moved on to the street in question in 1999.)

"I thought [we] got screwed," Gottlieb recalls. "I always thought that something was going on that was evil, wrong." He says he felt "powerless." When asked to be more specific, he says, "I felt there was police corruption and coercion in this case. My gut instinct — hell, [Thomas] was no angel. But this guy had no reason to shoot this driver." Gottlieb echoes current attorney Kica Matos’ contention regarding Thomas’ profile, saying that his previous arrests, including his conviction for shooting a man in 1991, involved barroom brawls and disputes over women, not strong-arm robbery.

"The FedEx murder," Matos says, "does not fit his m.o. for getting into trouble."

Assistant D.A. Chris Diviny insists Thomas’ past is consistent with the guilty verdict in his case: "He’s been convicted on manslaughter [charges]. He shot someone a block away from [where the murder of Moyer took place], and was convicted of aggravated assault for that."

Matos says in response, "We have never alleged that he was a poster boy. We’ve alleged that he didn’t commit this murder."

Moyer’s father, William Sr., isn’t sorry Thomas was convicted.

"After killing one person, shooting another, a rap sheet 27 pages long, he’ll get to die on clean sheets," Moyer says, "while my son died in a gutter in the rain."

But Thomas’ family and attorneys are trying to prevent what they believe would be an equally unjust death.

At the rally a week ago, the same day a court date was sent for an evidentiary hearing on the Thomas case, three dozen people gathered, listening to a heated appeal for "justice." Defense attorney Kica Matos, confessing to little sleep, stood off to the side and watched.

"We’re not giving up," she said.