Making It Right
If this were Hollywood, the story line would be clear -- an unassuming, straight-arrow black man gets wrongly arrested and accused of theft on the campus of a wealthy private college; he beats the rap, sues to clear his name and is vindicated.
But Jessie Phillips, a 44-year-old county worker, is slowly learning that Houston isn't Hollywood. He was easily enough found not guilty of stealing a computer, but the five years since that verdict have been a frustrating tour through the civil-justice system for the soft-spoken man from a rugged near-northside neighborhood.
He has gotten bad legal advice; he has ignored good legal advice. He has seen his entire roster of witnesses in his suit against Rice University barred from testifying because his lawyer didn't provide their addresses and phone numbers on the relevant court document. He eventually had to put on his case himself, without an attorney, and saw the judge rule in favor of Rice without ever letting the jury decide his fate. To top it off, he was ordered to pay $15,000 of the university's attorneys' fees.
It would seem that Jessie Phillips has been singularly screwed by forces greater than himself -- from a rich, exclusive college, to zealous prosecutors, to inept or uncaring lawyers, to a courthouse tilted against a lone black man.
But the truth is slightly more complicated.
To Phillips, it's not: In his mind, he was wronged through no fault of his own, and things should be made right. "I knew as much as any attorney as far as what had been said and done by people and witnesses in my case," Phillips says. "If the law is designed to be fair, I should've won that case."
What's right under the law, however, isn't always what's fair; the judge in Phillips's civil case actually had little choice but to rule as she did. And Rice University, far from being vindictive, actually made earnest efforts to settle the case at no cost to Phillips, even though the university's attorneys were assured of victory. And despite the ruling they got from the judge, the school has consciously decided not to pursue getting the $15,000 from Phillips.
If this were Hollywood, the less-dedicated cast of characters who've told Phillips he should give up his fight would be ignored as he selflessly pursued his lonely fight for eventual vindication. But this is real life, and sometimes there's a good reason people give such seemingly cold, ignoble advice.
Jessie Phillips isn't going to win his fight. He was wronged, but there's little he can do about it. He has a strong, black-and-white view of right and wrong, however, and he simply can't accept that answer. Now he wants to sue the lawyers who represented him in the civil suit.
Instead of working his way toward triumph, he may simply be digging himself into a deeper hole.
There are few people, it would seem, less likely to get in trouble than Jessie Phillips. A Houston native, he worked at Armco Steel Company for 11 years and figured to retire there, until the early-'80s recession led to layoffs. Since then, he has opened a dry-cleaning shop and a gift shop, but neither survived; now he works as a building superintendent in the Spring Branch/Memorial branch of the county's library system. He also manages a combination convenience store and gas station and works as a general jack-of-all-trades for a local anesthesiologist.
He's single. A steady girlfriend of long standing lives in California, but Phillips can't move because he cares for, and lives with, his ailing elderly mother.
He'd never been arrested or so much as stopped for a speeding ticket. In answer to interrogatories in his civil suit, Phillips could list only one incident when he ran afoul of the law: at Kashmere High School, back in more innocent days, he was once late to class and was given a choice of three days' suspension or three "pops" with a paddle. He opted for the suspension.
Phillips is quick enough to smile or laugh, but he's not the world's most talkative guy. Even as he relates episodes that obviously caused him a lot of pain, he's calm and straightforward, hoping the facts will speak for themselves.
"They don't come any better than Jessie Phillips," says James Farmer, an attorney and longtime friend who represented him in his criminal case. "If he tells you something, you can take it to the bank.... He is one of a handful of criminal clients I've had in 22 years of practicing law who, after the not-guilty verdict came in, still made payments on what he owed me and paid it off."
Farmer first met Phillips in the mid-'80s, when the former steelworker had a dispute over unemployment with the Texas Employment Commission. Phillips had gotten a job as a security guard, but the company went broke after giving him only one paycheck. Instead of cashing it, Phillips mailed the paycheck to the TEC, which had not yet processed the paperwork to stop his unemployment payments; the bureaucratic reaction, Farmer says, was to file a lawsuit "telling Jessie to give back all the unemployment he had received and agree that he would never again be eligible for payments."
Farmer himself soon went bankrupt, and "we just couldn't put the quarters together to travel to Austin" to fight the lawsuit, he says. The TEC won a judgment but never made an effort to collect it, he says, after a sympathetic official finally took a close look at the case.
Farmer remained friends with the low-key Phillips, impressed with his honesty. That quality also appealed to Zubeda Memon, the wife of a Spring Branch anesthesiologist who met Phillips through his work at the library.
The quiet but friendly Phillips eventually became part of the family, Memon says -- taking her kids to ball games, visiting her father-in-law in the hospital, doing errands for her. They called him "Jeff," for reasons no one remembers now.
"I'd say to him, 'Jeff, I can't go to the bank, could you go and get me $2,000?' He would do it all the time. The people at the bank got to know him," she says. "One time he came back, and before he gave me the money, he discovered they had overpaid by a couple of thousand dollars. He took it right back. What's this guy going to do with a used computer, like they accused him of stealing?"
In fact, it was another errand for the Memon family that led Phillips to the Rice University campus, and all his ensuing trouble, in May 1992. "My daughter found out it was the last day to pick up applications for summer school, and couldn't do it, so I called Jessie and said, 'You're nearby, could you go pick them up?' He said sure," Memon says.
About 10:30 on the morning of May 15, Phillips pulled up on campus in his Yugo ("I told him anyone driving a Yugo ought to be filed on for a felony just on principle," Farmer cracks) and asked a passerby for directions. He picked up the application and left, ending a seemingly innocuous 20-minute visit to the walled enclave of Rice.
Just the day before, however, a relatively minor part of the real world had invaded that private campus. About 5:30 p.m. on May 14, staffers in the Biosciences building reported to campus police that a computer had been stolen from a countertop in the staff office.
They told investigating officer Leona Drysdale that a black male, about six-foot-two, was seen "carrying an empty computer box" as he walked through the archways under the second-story office where the theft had occurred, according to Drysdale's deposition. The man had "short hair and was clean looking," Drysdale says she was told.
Word of the theft and the description of the suspect spread around campus, Drysdale says. "Around Rice, when something happens, it spreads pretty quick," she testified. "It's like a family there. In this building, the people who worked there are a family."
By the next day, when Phillips visited the campus, news that a "clean-looking" black male was suspected was relatively well known among those connected with the Biosciences building.
And that's when Phillips -- who's five-foot-ten -- asked a Rice student for directions. She gave them, took down his license number, and later called the campus police. Drysdale talked to her a few days later.
"She stated she had seen the suspect, and she had heard about the incident there, and she thought she followed the suspect," Drysdale testified. The officer couldn't recall asking or being told whether the student had seen the man a day earlier, when the theft had occurred; the student simply said the man she had seen fit the suspect's description.
"Like I told you before," Drysdale testified, "it's a community. And you know who goes in the buildings most of the time. School was not in session, and you know your workers and cohorts. And when someone else comes into the building, they recognize this. And when you see someone standing around, I don't know what Mr. Phillips was doing that day or whatever. It brought attention to five different people."
Being black and 38 years old might indeed make someone stand out on Rice's semi-deserted summer-session campus, but why Phillips would return to the scene of his alleged crime isn't clear. Nevertheless, he quickly became a prime suspect in the investigation.
The student who gave Phillips directions and called police later identified him from a photo lineup ("Yeah, she identified him as the man she had seen that day, not as the guy who stole the computer," Farmer says. "She identified Jessie Phillips as being Jessie Phillips"). The initial complainant also picked out Phillips from the photo lineup, but three other witnesses could not.
Lieutenant Terry Ryals of the Rice police, Drysdale's supervisor, felt he had enough to make a case. "The two photo spreads, the fact that he was seen on campus, that one witness followed him to his car, the other witness saw him with a computer box in a building where he had no business; whatever was in the offense report," Ryals testified as to how he made the decision.
Somewhere along the line -- it's unclear exactly when -- a computer run was done on Phillips's home address, revealing a large number of police calls. It turned out that Phillips had been the one calling police; he was an assiduous reporter of drug activity in his neighborhood.
Whether that increased suspicion of Phillips isn't clear, but on June 6, Ryals called him and asked him to return to campus to discuss the case. "Exact words, I don't remember," he testified. "Something to the effect that we had a computer stolen off campus, and he was identified as being in the area, and would he like to talk to me about it."
Phillips agreed, but called back a half-hour later to change his mind. "It sounded like they had their minds made up," he says. He says in a court document that he thought if he went there, he would be arrested "without being given the means to explain that the Rice University officials were wrong."
Phillips says the only person he talked to between the two conversations with Ryals "was God," as he prayed for guidance, but Ryals testified that Phillips gave a different explanation when he called back. "He told me he had spoke with -- I don't know if he said 'his' or 'an' attorney. And [he said that] the attorney advised me [to say] that if [Rice] had enough evidence, that we should go to the District Attorney's office and file charges," Ryals said, in what he remembered as being "durn near a quote."
Whatever the true nature of the conversation, it put the matter to rest as far as Phillips was concerned. He heard nothing further from Rice.
Seven months later, he was asked by his pastor to visit a friend who had been arrested. Phillips dutifully went down to the Harris County Jail, where a standard background check revealed that a warrant was out for his arrest. He spent 24 hours in a holding cell.
"Well, I just couldn't believe it," he says. "I didn't know what was going on."
He hired Farmer as his criminal attorney. In October 1993, a jury acquitted Phillips of a felony theft charge. "I don't know for sure what happened, but there were two really clean African-Americans on the jury, kind of younger guys," Farmer says, in a strange echo of the Rice description that implied a "clean" black man was unusual. "They saw the kind of witnesses Rice had, and I think they could kind of see themselves being put in the same position."
The prosecutor was a relatively newly minted attorney named Bobbie Karmy. Like any good prosecutor, she insists she had a solid case, or she wouldn't have brought it to court.
"I didn't have any doubt that the identifications were correct, and I thought I put holes in his alibi," says Karmy, still a prosecutor, now using her married name of Bobbie Twigg. "His whole story kind of seemed odd. Based on the evidence, I still believe he was guilty, and that's why I prosecuted him."
Twigg says she remembers the run-of-the-mill case because she has gotten periodic calls though the years since then from the attorney handling Phillips's civil case against Rice. What really galls her most about the trial, she says, was that she lost to Farmer, a rather unconventional attorney who has since gone on to file a massive RICO suit against the Internal Revenue Service. (The Racketeer-Influenced and Corrupt Organizations Act is usually used against businesses supposedly run by organized crime.)
"I just remember that his lawyer was really something," she says. "It really hurts to lose to a lawyer like that."
Unconventional or not, Farmer and Phillips convinced the jury he was not guilty of the charge. Almost immediately, Phillips sought to -- as he sees it -- restore his good name.
His mother used to care for the children of a local patent attorney, and after she got sick, the lawyer would occasionally call Phillips to check up on her. After hearing Phillips's story, he recommended the firm of Griffin & Matthews, which took the case on a contingency basis in the spring of 1994.
The lawyers who handled Phillips's case did not return phone calls from the Press, but things did not go well as the suit progressed. Whether that was because the case was unwinnable (as the firm eventually told Phillips) or because Rice had somehow gotten to the firm (as Phillips believes) is unresolved for now.
Phillips sued Rice for inflicting emotional distress, claiming Rice had negligently hired and supervised its officers. He later added a civil-rights claim, saying the campus police targeted blacks.
Discovery in the suit began after the suit was filed in February 1995. A little over a year later, the attorney handling the case left the firm, and name partner Samuel Griffin told Phillips that the case was a long shot at best.
Rice and its police department would be able to claim governmental immunity, he wrote Phillips, which protects any actions done in good faith in the course of regular duties.
"After much time, discussion, consideration and research, I recommend that this matter be dismissed before expending any further costs for expert testimony, trial exhibits, etc.," he wrote. "Although I have no doubt that your arrest was less than straightforward, it is my belief that further time, money, emotion, etc. would be invested, for no reward in the end.... Unfortunately, had this incident happened in a commercial department store, or had you been the last in a long list of individuals incorrectly arrested at Rice ... the situation would be different."
Griffin wrote that he didn't "feel it is fair to you to proceed to trial and have the jury give you the news or have the judge order a directed verdict."
It was pretty blunt stuff, an attorney clearly telling a client to give it up. But if Griffin expected his letter would end the matter, he was in for a surprise. Phillips told the firm he didn't want to drop the suit.
"I wasn't going to go all this time -- almost two years -- and basically [the lawyers] were asking me to let it all go; that all of a sudden they didn't have a case," Phillips says.
One of the new attorneys on the case, he noted ominously, was a Rice graduate. "I just think Rice got to them somehow," he says.
Nevertheless, he wanted the firm to stay on the job. On November 11 of last year, they warned him again that things were hopeless. "Your chances of recovery in this matter are slim at best.... Your moral position is correct, but the law sometimes does not take moral positions into account. This is one of those times," said a letter from the firm.
A week later, the firm officially withdrew from the suit. One of the attorneys, Phillips says, "was basically begging me to withdraw the case. She said, 'If you go to court, these people are going to destroy you.' It reached the point where I said, "Okay, if you don't want to try the case, I'll sign the withdrawal papers [letting the firm drop out], because I definitely don't want anyone in court representing me who doesn't want to be there."
Even with the legal advice, and the fact that he now didn't have an attorney, Phillips didn't give any thought to giving up. Ask him why, and he can't offer much more of an explanation than saying that he was not the guy who stole the computer, and the people who accused him of doing so need to acknowledge that.
"These people were wrong. What I would've been saying if I dropped the case was that what they're doing is okay. And it's not okay," he says.
Try to tell him that courts aren't necessarily in the business of righting every wrong, and he doesn't accept it. He argues -- in a stolid, stoic way, not pounding the desk with fake bombast -- that there has to be justice, because he was wronged. Budging him from that is impossible; he simply won't accept that, as John Kennedy said, "Life isn't fair."
He's not one of those people utterly obsessed with some legal case, filling rooms to the ceiling with irrelevant documents and photocopies of old case law purporting to prove their claims. Indeed, he has a life outside his fight -- a somewhat unusual one, actually; in addition to his more conventional jobs, he's a part-time movie actor, having recently finished a non-speaking role in scenes with Jeff Bridges, Tim Robbins and Joan Cusack in a yet-to-be-released movie filmed locally.
(His report from the set: "Jeff Bridges, he's kind of arrogant. And Tim Robbins, man, he's as spacey as that part he played in Jacob's Ladder. But Joan Cusack, she is as nice a woman as you'd ever want to meet.")
As part of his civil suit, Phillips took what's called the Myers-Briggs Type Indicator test, a widely used and respected personality indicator. He was classified as "ISTJ," a type indicating he's introverted and tends to rely on thinking as opposed to feeling.
"When [ISTJ people] see that something needs to be done, they accept the responsibility, often beyond the call of duty," according to the analysis used in the test. "ISTJs are thorough, painstaking, systematic, hard-working and careful with particulars and procedures.... They do not enter into things impulsively, but once in, they are very hard to distract, discourage or stop. They do not quit unless experience convinces them they are wrong."
Phillips doesn't say whether he agrees with the assessment. "I don't know, I just went to the guy. He said he couldn't come to court to testify that they had cracked me up, but that he could see how it had totally upset me, and that it would, until I got some justice, or whatever."
One of the people involved in the case (not on Phillips's side) would only speak anonymously, and avers that Phillips "is only in it for the money." But others who have also opposed him don't agree, and even after Griffin & Matthews told him that he had almost no chance of winning anything, Phillips continued pressing his case.
Representing Rice in the civil suit was Rusty Hardin, a former Harris County prosecutor well known in legal and media circles for tough talk and an enviable courtroom record.
He doesn't know quite what to make of Phillips. "He seemed like a nice guy," Hardin says. "I thought that if he got his day in court, that would do it.... I never decided in my own mind whether he did [the crime] or not -- I never tried to resolve that in my own mind -- but there's no question he feels aggrieved."
Hardin says he didn't need to resolve whether Phillips stole the computer because that was irrelevant to the civil suit: What was most important was that Phillips simply never stated a valid claim that would stand up in court. It wasn't Rice that brought charges against Phillips, Hardin says, it was the Harris County District Attorney's office, which was not a defendant in Phillips's suit.
"Part of what he couldn't understand was that Rice University never arrested him," Hardin says. "He agreed to come in to talk to them; then he talked to his lawyer and said no. Rice University takes the evidence to the D.A.'s office, and they never get involved again.... Basically, Rice University had someone steal a computer from them, and non-Rice University people said it was him.... His grievance against them just doesn't fit any law."
Hardin says that prosecutors were right to file charges and take the case to court, despite the lack of a previous criminal record, the seeming weaknesses of witnesses and Phillips's heartfelt refusal to entertain any type of plea-bargain offer.
"I feel sorry that he's so convinced that he has suffered a wrong, I do, but the original charge was definitely correct to bring a trial on," Hardin says. "It's the kind of case that would be filed every day. No assistant district attorney would ever dismiss it on their own motion. You've got witnesses saying he did what he says he didn't do.... Every day, cases are taken with evidence that is weaker than that. He just never would accept that."
Hardin felt confident he could win a summary judgment in the civil suit, dismissing the case before trial, but decided not to. "I deliberately did not file a motion for summary judgment because I read him as the kind of guy for which the case would never be over. He would've appealed any summary judgment, and we'd still be fighting it to this day. I wanted to have a trial to bring some sort of end to it."
A different type of pretrial maneuver, however, made the trial exceedingly one-sided. Hardin successfully filed a motion to strike all of Phillips's witnesses because the court documents listing them did not include the required addresses and phone numbers.
The former prosecutor says the barred witnesses would have made no difference, because they would've been unable to offer any evidence on such relevant points as Rice's hiring and supervising practices. But to Phillips, the move forever cemented the feeling that the system was giving him a raw deal.
By this time, Farmer had agreed to take on the case, but he also withdrew once the witnesses were struck. "Farmer told me, 'My man, if we don't have any witnesses, we don't have any case,' and he wanted to withdraw because he said Rice could hit us with $40,000 in attorneys' fees. I said, 'Why didn't we have a case?' They [Rice] lied. I couldn't understand -- it was proven that I wasn't the one who stole the computer. I was 38 then, and had never even been arrested for a traffic ticket. I just couldn't believe what was going on."
Rice offered at that point to not seek attorneys' fees if Phillips would drop the case, but he declined, ignoring Farmer's advice.
After a month's continuance to let Phillips find a new lawyer, the trial began last July in Judge Katie Kennedy's court, with Phillips representing himself. "I drew up my own motion to have the witnesses reinstated and the judge flat turned it down," he says, as if such a thing is beyond belief.
He was able to call two witnesses on Rice's list, and testified himself. After hearing his case, Kennedy granted a directed verdict in favor of the university.
"He testified, and on cross-examination he admitted that he had no evidence of negligent hiring," Hardin says. "He just felt like what happened was wrong. But he had no evidence to back up the claims he was making in the suit, and because there was no evidence, we got a directed verdict."
Phillips, naturally, disagrees. "I knew that with the information I had, if I could have gotten it to the jury they would have been on my side," he says.
As part of the final judgment, Kennedy assessed $15,000 in attorneys' fees against Phillips. That, of course, has further provoked him.
"I have no intention of paying these people, in this life or the next, no $15,000," he says quietly.
But the truth is, he won't have to. Far from being the conspiring, malevolent force that Phillips may see it as, Rice has made no effort to collect the money or enforce the judgment.
"We haven't done anything to get those $15,000 in fees," Hardin says. "The point is that Rice could have ... moved against whatever property he has. But we talked to their officials and we all agreed we didn't want to do anything to collect it, that that would be punitive."
Phillips has a different view. "The reason Rusty Hardin won't come after me for the $15,000 is that he knows there is still time for me to do something about it," he says.
That something would be winning a malpractice suit against Griffin & Matthews for failing to file a proper witness list. Such a victory would void the $15,000 judgment.
Such a victory, however, is as unlikely as Phillips winning his original civil suit. The witnesses that were struck were irrelevant to his claims, and Griffin & Matthews can certainly point to their efforts to warn Phillips his case could not be won.
Still, a malpractice suit might be the only option he has left in his quixotic fight. At least that's the analysis of the Texas Civil Rights Project, an Austin legal advocacy group that responded to Phillips's plea for help.
"The problem is that, once a trial occurs, what has happened is pretty much set in stone, and new evidence cannot be introduced," Claudia Wilner, TCRP's legal manager, wrote to Phillips. "About the only thing you can do is file malpractice charges against your attorney, since it appears that he was the person who led you into this trap" (referring to the bungled witness list).
Such a malpractice suit, though, would be "too risky" for TCRP to use its limited resources on, she continued.
"Mr. Phillips, I truly believe that you were the victim of racism, discrimination and plain bad luck," she said. "I wish very much there were something more I could do for you."
Phillips says he plans to follow Wilner's advice that he find a law student at the University of Houston or Texas Southern University to handle his case pro bono. The word "long shot" doesn't begin to do justice to that arrangement. And the prospect of being hit with further attorneys' fees for filing a frivolous suit is very real.
That, of course, is unlikely to deter Jessie Phillips. He'll plod on, not believing that just maybe there won't be any final reckoning that will make things right.
"If you or I were accused of a heinous crime that we didn't commit, we'd fight to clear our names too," says Farmer. "If Jessie was a crook or something, he'd just say 'Forget it, I got off, I got over on them.' But that's not the way he is."
"He was such a nice person, and people knew him, but he can't go around and tell everyone what happened and that he didn't do it," says Memon, whose errand sent Jessie to Rice that day. "Rumors get around here in a second, so everyone in the neighborhood knew that he'd been in jail. His respect is hurt, his reputation. He won't say it, but what he's thinking is that 'I did so much good in this world and this is what happens.' These people who did this to him should be punished."
In Hollywood, they would be. There'd be a dramatic courtroom scene with an avuncular judge and a pompous, smug defense attorney. The foreman of the jury, barely able to contain his self-righteous anger, would defiantly announce that we, the jury, had found for Jessie Phillips. As the judge vainly tried to gavel the cheering crowd into order, Jessie would hug his girlfriend and emerge smiling into the sunlight, surrounded by eager reporters thrusting microphones into his face and asking him how he felt.
But Houston isn't Hollywood. And Jessie Phillips's fight is much more likely to end with another courtroom loss, another feeling of being betrayed by the system, another desperate attempt to find some way to make things right; to remove from his past what he sees as an incomparably grievous wrong.
His friend and attorney, James Farmer, says Jessie will never be able to accept what happened, will never be able to rest until somehow Rice University, or the D.A.'s office, or Rusty Hardin, or someone in the justice system, makes a declaration that Jessie Phillips is not a thief.
But the world doesn't work that way, as Farmer has tried to convince him.
"He wants recognition that he didn't do it," Farmer says. "And there's no one who's going to give it to him."
E-mail Richard Connelly at firstname.lastname@example.org.
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