Evidence of innocence?

By Jordan Bailey, Pine Tree Watch | Mar 04, 2019
Photo by: Gabe Souza Foster Bates

Inmate Foster Bates is proud of his accomplishments at the Maine State Prison in Warren.

As president of the prison branch of the NAACP, he advocates to improve prison policies and conditions. He helped form a legislative committee to work toward that end and also organized an in-house Martin Luther King Day celebration in January. In his day job, keeping track of 10,000 tools used in the prison woodshop, he says a tool has never gone missing. He is housed in the “honor pod,” where prisoners with the fewest disciplinary issues enjoy the most privileges.

Inside the prison, Foster Bates may be the model prisoner, but outside, he’s known as a convicted rapist and murderer.

Bates was convicted in September 2002 for the gruesome 1994 rape and murder of young mother Tammy Dickson in South Portland. Cumberland County Superior Court Justice Robert Crowley sentenced him to 30 years for the rape conviction and to life in prison for murdering Dickson, who was 22.

Bates has maintained his innocence since his arrest in 2001, and has been fighting ever since to prove that he did not commit these crimes. Because Maine does not offer parole, Bates, now 51, will stay in prison until death unless he can overturn his murder conviction.

He thinks he’s closer than ever to being able to do that.

His first three appeals were rejected by the state, including his most recent last year. Bates — the father of Trevor Bates, the Detroit Lions linebacker charged in January with assaulting a police officer — filed a fourth appeal on June 12, 2017, after new witnesses came forward in 2014 alleging another man committed the crime.

The state has moved to dismiss this appeal for failing to meet a time limit on introducing new evidence. Cumberland County Superior Court Chief Justice Roland A. Cole heard a motion on Bates’ latest appeal on Feb. 4 and is considering whether to dismiss it or allow it to proceed.

And a resurrected bill before the Maine State Legislature’s Judiciary Committee would provide a way to bring forth evidence of innocence without a time limit.

“Words can’t even describe. It’s actually a great feeling that I can prove my innocence,” Bates said about his current appeal. “The sad truth is the state of Maine is not helping, even after this finding. They didn’t even do any investigation.”

A young mother is murdered, a quarter-century ago

Tammy Dickson was found strangled to death in her South Portland apartment on Sunday, Feb. 20, 1994. William Quinn, a former boyfriend, found Dickson’s body after a neighbor asked him to check on her because a baby was crying inside her apartment and there was no answer to knocks on her door.

When police arrived at the Courtland Court apartment complex on Westbrook Street, they found Dickson’s hands bound behind her back and a pillowcase over her face. She was naked from the waist down. According to police, she had been sexually assaulted before being strangled to death. Dickson’s 18-month-old son Marcus was found severely dehydrated but alive in his playpen.

Medical examiner Kristin Sweeney found a green sock stuffed inside Dickson’s mouth and bruising on her body. She also determined that Dickson had been dead for several days before her body was discovered. Dickson was last seen alive on the evening of Thursday, Feb. 17, 1994.

At the time of the murder, Bates, 26, was living in the same apartment complex with his wife and their infant son Trevor, working at a local Irving gas station, and attending Southern Maine Technical College (now Southern Maine Community College). Dickson was the family’s babysitter.

Police questioned and obtained blood samples from both Bates and Quinn in 1994.

Two years later, DNA results came back from the FBI showing Quinn’s semen on a robe found near Dickson’s body, and police questioned Quinn extensively. He admitted at that time that he could have gone to Dickson’s apartment and had sex with her on the night of the murder. He also admitted to drinking heavily that night.

Several years went by with no movement on the case. Then, through advances in DNA technology, semen found inside Dickson’s body was matched to the blood sample taken from Bates. When Bates was questioned again, he again denied having a sexual relationship with the victim.

Bates was arrested and indicted for Dickson’s murder in August 2001.

Bates changed his story during his trial in 2002. He testified that he had, in fact, been having a sexual relationship with Dickson. He denied raping and murdering Dickson, but did admit to having intercourse with her.

“I made a critical mistake,” Bates said earlier this month about his decision to lie to the police. “I was completely scared, I was horrified. I’m married to a white woman, I’m the only black person in the building, and a white woman gets murdered.

“I thought, hey, you know how these things go. You have to separate yourself as far from this thing as possible because If you tell them any relationship other than the fact that she was your babysitter, they’re going to charge you.”

Bates moved his family to Massachusetts shortly after the 1994 murder. He soon found himself in trouble there — sentenced to three years in prison in 1997 for a child rape conviction in Bristol County — five years before his arrest and indictment for Dickson’s murder.

At Bates’ 2002 trial, ex-wife Christy Bates (they divorced in 1998) testified that he left their apartment at about 10 p.m. on Feb. 17, 1994 — the last night that Dickson was seen alive — and didn’t return home until 3 a.m.

Also at trial, Wanda Fowler, a neighbor of Dickson’s, testified that the victim was frightened by Bates. Fowler testified that Dickson woke up one night to find Bates sitting on her bed and touching her hair.

One of Bates’ co-workers, Janice Leigh, also testified that Bates said he was at Dickson’s apartment that Thursday night.

An all-white jury convicted Bates of murder and gross sexual assault. At the time, Bates claimed racial bias and pleaded with the judge to throw out the jury verdict.

Four appeals since 2002 conviction

Bates since has filed four appeals.

In 2003, he argued that the jury process was tainted because the court seated jurors who had read a news article about the murder. Bates also challenged the admission of his former wife’s testimony during the 2002 trial, claiming marital communication privilege. The appeal of conviction was denied by the Maine Supreme Court in May 2003.

Bates’ second appeal was filed in August 2003, and dismissed in September 2007 for “failing to raise proper grounds.”

The third appeal, filed more than a decade later in February 2014, focused on DNA evidence. In addition to the DNA samples found on Dickson’s robe and inside her body, independent medical examiners also found DNA on the sock found in Dickson’s mouth. Bates’ legal team had DNA testing done using new technology, and Bates was excluded as the source of the most viable DNA sample on the sock.

In October 2014, a woman contacted the Bates legal team, alleging her brother-in-law, Michael Bridges, had committed the murder. Melody Higgins said Bridges confessed to her sister Cindy Higgins, and it was her sister’s dying wish that he be held accountable for the crime. Bates’ legal team investigated her story.

At the same time, Melody Higgins’ daughter Lisa started asking around about Dickson’s death. She learned that Amanda Indigo, a niece of Michael Bridges, had been living in the apartment across the hall from Dickson at the time of the murder and may have been the last person to see her alive.

Lisa Higgins told Pine Tree Watch that while Bates’ legal team was investigating Bridges, she asked Indigo about the murder and learned that Indigo had never been interviewed about it and still did not want to talk to police. Lisa Higgins put Bates’ lawyer in contact with Indigo, and he subpoenaed her to testify during Bates’ appeal hearing in June 2016, at the Cumberland County Superior Court in Portland.

Bates recalls how he felt when Indigo, whom he had never met, took the stand.

“When I went to court, you know, I don’t know her,” he told Pine Tree Watch. “I thought her testimony was going to hurt me.”

Indigo testified that she was living with her sister in the apartment across the hall from Dickson in February 1994.

Indigo, who was 16 at the time, described a party at her sister’s apartment on the night of the murder. Indigo said Bridges and a male friend were at the party drinking. She was standing in the hallway waiting for a friend to pick her up when she saw Bates come up the stairs, knock on Tammy’s door and be let in.

“He came out about 20 minutes later reeking of sex, and it really grossed me out,” Indigo said, recounting her 2016 testimony to Pine Tree Watch. “Then I knocked on Tammy’s door and asked if I could use her phone. She was wearing a green teddy, negligee-type thing. She was not disheveled, she was perfectly fine.”

At the hearing, Bates listened to all this, dumbfounded. Not only did Indigo say she saw Dickson alive and well after he had left her apartment on the night of the murder, but he felt that Indigo verified his claim that he and Dickson had been having an affair.

“She starts to explain what she saw,” Bates said, “and I’m like blown away. I’m like, good Lord. How do you not give me a new trial with this testimony?”

Bates’ third appeal was denied in November 2016. The judge did not consider Indigo’s testimony or an affidavit with Melody Higgins’ statement in his decision because they were not relevant to the DNA evidence, and determined that the DNA evidence presented was not strong enough to warrant a new trial.

Bates appealed that decision to the Maine Supreme Judicial Court, which denied the appeal last January. Bates’ lawyer for that appeal, Rory McNamara, argued that statements related to Michael Bridges should have been admissible.

Justice Andrew Mead wrote that the lower court was right to not consider Indigo’s testimony or Melody Higgins’ affidavit because precedent had established that only new evidence related to DNA may be considered in DNA petitions. He also concurred that the DNA evidence was weak.

While he awaited that decision, Bates considered his options in the event that the DNA-focused appeal was denied. He could submit a new petition based on newly discovered evidence, but those have a one-year time limit, and that window had closed for the information brought forward by Melody Higgins. But Indigo’s testimony occurred on June 13, 2016. Bates submitted his current appeal based on Indigo’s testimony on June 12, 2017, one day before the time limit was up —– or so he thought.

However, the time limit is counted not one year from discovery, but one year from when the evidence could have been discovered through due diligence. The state moved to dismiss the petition as time-barred, using the due-diligence argument.

At a Feb. 4 status hearing on that motion at Cumberland County Superior Court, Assistant Attorney General Donald Macomber argued before Justice Cole that Bates’ defense lawyers at his trial should have found Indigo because she was living in the apartment across the hall from Dickson at the time of the murder.

But Bates’ current lawyer, Portland attorney Peter Cyr, said at the hearing that this was not evidence that could have been found at the time of trial. Indigo’s name had not been in the discovery material given to trial lawyers, he said, and there was a significant lapse of time between Dickson’s death and when Bates was arrested, indicted and brought to trial.

“If they’re not interested in being found or if they‘re not interested in letting people know what they know, then there is no opportunity to find these people,” Cyr said.

If Justice Cole counts the time limit from the date of Indigo’s testimony, the petition may proceed. Cole then would have to decide whether he finds Indigo’s testimony credible and thinks a jury with her information before it would be likely to come to a different verdict.

If he sides with Bates, Bates would have the opportunity to present all of his evidence — including the claims of Melody Higgins — at a new trial with a new jury. Bates said earlier this month that if his petition is granted, he also would request bail.

But if Cole determines Indigo could have been found earlier through due diligence and dismisses the petition, Bates would be back to square one.

Complex rules for appealing a conviction

For inmates in Maine’s correctional system, a process known as post-conviction review is the main avenue to challenging a conviction after appeals of the original judgment.

According to state law, post-conviction review petitions may be based on DNA evidence, newly discovered evidence, or claims that the proceedings were illegal in some way — that evidence was obtained unlawfully, a lawyer made a mistake, or a constitutional right was violated.

When inmates present their claims, they’re not afforded the same presumption of innocence as a free person, and their burden of proof is higher than raising a reasonable doubt about the conviction.

Here’s where it gets even more complicated:

All options for bringing forth new evidence have time limits, and only certain evidence is admissible in each type of appeal.

Petitions for post-conviction review based on DNA evidence may be filed within two years of conviction or within two years of a new DNA testing technology becoming available, and only evidence related to the identity of the source of the DNA is allowed. No “freestanding claim of actual innocence” is allowed in DNA petitions, so no evidence supporting a claim of innocence not tied to DNA evidence is admissible.

A motion for a new trial is a different type of appeal and must be filed within two years of the conviction, based on new evidence that could not have been known before trial.

According to statute, petitions for post-conviction review based on new evidence that emerges after that two-year window has closed must be filed within one year of the date when the new evidence “could have been discovered through the exercise of due diligence” — known in law circles as a “shoulda, coulda” rule.

This is the statute the state is using to argue Bates’ appeal should be dismissed.

Bill challenges ‘shoulda, coulda’ rules

Attempts by Maine inmates like Foster Bates to bring forth new evidence could get a boost this year when state legislators again tackle a bill now called LD 302 that establishes a claim of “actual innocence” for post-conviction review, under which new evidence may be brought up without time limits.

The Attorney General’s Office, led then by now-Gov. Janet Mills, fought the same bill in 2017, as did the Maine Prosecutors Association. It was killed in committee after Deputy Attorney General Lisa Marchese testified that it was unnecessary.

LD 302, sponsored by Rep. Jeff Evangelos (I-Friendship), also would ensure at least one evidentiary hearing before a judge.

“Right now, our law on (post-conviction review) is very narrow,” he said. “It is very difficult to get a hearing on other evidence (besides DNA evidence) because what the courts are ruling is your lawyer should have brought it up earlier.”

Evangelos said his bill isn’t tied to Bates’ case and he does not want to weigh in on the guilt or innocence of anyone with pending appeals or whose cases might be affected. He believes resurrecting the bill is necessary because cases have shown that wrongful conviction does occur in Maine — the most notable example is Anthony Sanborn.

Sanborn was freed in 2017 after spending 27 years in prison for murder, when the sole eyewitness recanted her testimony and said she had been coerced by police. In addition, evidence sitting in a detective’s attic for years had not been turned over to the defense.

After a judge released Sanborn on bail, rather than proceeding to a new trial where Sanborn might have been exonerated, state prosecutors offered him a deal wherein he would withdraw his petition, replace it with another based on unfair sentencing and be freed on time served.

Sanborn accepted but wrote in a scathing letter to the Portland Press Herald, “It was with a heavy heart that I agreed to end the hearings on the petition to review my conviction, and I did so because I saw firsthand the lengths they were willing to go to protect their office and their lies.”

Amy Fairfield, Sanborn’s lawyer in his appeal, said state prosecutors tried everything they could think of to block the case from moving forward.

“It’s kind of hard to argue the due diligence claim when the evidence is in the attic of the lead detective,” she said. But as for other tactics, she said, “They threw everything but the kitchen sink at the wall.”

Evangelos said his bill aims to take away some of the “ridiculous technicalities” state prosecutors use to dismiss cases.

“In the adjudication of justice, the most important principle to me is that we get it right,” he said. “If the state has made a mistake in its prosecution of an innocent individual, it should be compelled on the state to say, ‘We don’t want this person sitting in prison; we want him out because we got it wrong,’ and they don’t do that.”

Ironically, when this same bill came up two years ago, Marchese used the Sanborn case as an example of how well the current law is working. She spoke at the bill’s work session at the State House on April 13, 2017 — the day Sanborn was released.

Marchese claimed the state had requested that Sanborn be released on bail at his hearing that morning, but the transcript of that bail hearing shows that Macomber fought against granting bail for Sanborn, arguing that the police and prosecutors accused of misconduct should have a chance to testify. Sanborn pointed out the discrepancy in his Press Herald letter and accused Marchese of lying to the Judiciary Committee. The Attorney General’s Office had no comment on the accusation.

At the work session that day, the committee voted unanimously to report the bill “ought not to pass” — immediately after Marchese delivered her statement.

A public hearing for the bill held a week earlier in 2017 might provide clues about arguments we can expect to see again as LD 302 moves forward.

Representing the AG’s Office, Macomber argued that current law allows innocence to be asserted using new evidence as long as it meets the time limit. He said allowing new evidence without that limit and guaranteeing an automatic hearing would flood the courts with frivolous petitions and take up valuable court time.

Adam Sherman of the Maine Association of Criminal Defense Lawyers spoke in support of the original bill at the 2017 hearing, saying that when evidence with merit is brought up, it’s often successfully blocked by prosecutors who claim it should have been found by the defendants’ lawyers through due diligence earlier than it was.

Sherman said then that the guaranteed evidentiary hearing is an important part of the bill because it would allow the judge to view new evidence all together instead of piecemeal. (Under current law, only certain evidence is admissible in each type of appeal.)

Other supporters included the New England Innocence Project and the ACLU of Maine. Many complained in testimony that post-conviction review in Maine is focused primarily on procedural errors, rather than the accuracy of the conviction.

“A person who received a fair trial — but who was actually innocent — would lose at every existing point in Maine’s current appellate process (and would lose in federal court, too),” the ACLU of Maine stated in written testimony submitted at the hearing. “In either scenario, the focus is on whether the proceedings were fair — not on whether the proceedings were accurate.”

Macomber said earlier this month that he wouldn’t comment on pending legislation, but did provide his thoughts on the importance of the due diligence requirement for new evidence, to prevent defendants or their lawyers from “sitting” on such evidence for long periods.

“When victims move along with their life, every time a petition is filed it opens old wounds,” he said. “The Supreme Court has said that finality of conviction is very important. If someone’s aware of something or should have been aware of something, they should have taken steps to find it beforehand.”

When discussing the current bill’s prospects for success via email with Pine Tree Watch last month, Rory McNamara, Bates’ attorney in his previous appeal, reflected on the reluctance to question convictions.

“The vast majority of convictions rely on the judgment of 12 humans — their guts, common sense, horse sense, whatever,” he wrote. “As a society, we’re not willing to open up the best we can do — that’s what we think our justice system is — to second guessing. We don’t want to acknowledge that what’s behind the curtain of criminal justice is subjectivity, not science or truth.”

According to the National Registry of Exonerations, Maine has had three exonerations since 1989, one of which was a felony conviction. In Massachusetts there were 67 documented exonerations over that time. According to the New England Innocence Project, many of Massachusetts’ exonerations can be attributed to judicial interpretation of state laws that provide claimants of innocence with greater opportunity to present evidence.

If LD 302 passes, and Bates’ current appeal is denied, Bates’ legal team would have a chance to file a new post-conviction petition that includes all the potential evidence supporting his innocence. Bates’ lawyers could present that to a judge, who would be able to consider all of the evidence to determine if a new trial is warranted.

New witnesses speak out

Melody Higgins, 30 at the time of the murder, told Pine Tree Watch she remembers the morning of Friday, Feb. 18, 1994, like it was yesterday. She received an early call from her older sister Cindy Higgins, who was very upset and asking Melody to come get her immediately. Melody and Cindy lived down the street from each other in Portland.

When Melody picked up her sister, Cindy repeatedly told her that her boyfriend Michael Bridges had come home drunk the night before and kept saying that he had killed a girl.

“She said she kept telling him he was lying, that he was making it up, until he finally said, ‘Don’t tell me what I fucking did and fucking didn’t do — I know because I left a kid right in the crib,’”  Melody Higgins said.

The story turned Melody’s stomach. When the sisters got to Melody’s home, they told their father what Cindy’s boyfriend said. Melody said her father forbade them from reporting this to police because he was concerned that Bridges would harm Cindy next.

“No one wants to believe something like that, but we all knew it was was something he was capable of,” Melody Higgins said.

Three days later, Melody said they saw in the news that Tammy Dickson had been found dead in her apartment, and a baby boy had been retrieved alive.

The Higgins family kept the story under wraps, and Cindy Higgins and Bridges eventually married. After her father died and Cindy lost her battle with cancer in 2013, Melody Higgins felt she could finally come forward and tell the truth. In fact, she claims, it was her sister’s dying wish that she do so.

Carol Higgins, eldest of the Higgins siblings, said Cindy had also told her of her husband’s alleged confession long before her death. Carol said she didn’t report it because she was afraid for her sister, adding that her sister told her the night before she died to never forget what her husband “did to that girl.”

Shortly after Cindy Higgins’ death, Melody said she told her story to the Maine State Police, including Detective Ethel Ross, who took over the Bates case in 1997.

“They wouldn’t even investigate it,” Melody said. “She said maybe my brother-in-law did it with Bates. I told the state trooper lady, I didn’t even know there was somebody else in jail for what he had done to this girl.”

Melody Higgins was frustrated. She and her daughter, Lisa Higgins, called every Bates they found in the phone book. When they got in touch with Foster Bates’ mother in Massachusetts, she put them in contact with his lawyer.

That was five years ago.

Questions about the investigation into Higgins’ statement put to the Maine State Police were forwarded to the Attorney General’s Office.

“Whenever we receive new information about closed cases, we assign a detective to run it down,” Macomber said Thursday. “Melody Higgins was interviewed as soon as we learned about this claim, as was Michael Bridges. He voluntarily gave us a DNA sample and he was excluded.”

Bridges said in a phone interview Wednesday that he was contacted by Ross in 2014. He said he willingly met with her, submitted his DNA and told her his fingerprints were on file. He questioned why, if he was a suspect, no one ever contacted him about the crime when it happened 20 years earlier.

“How come I never heard anything from, of all places, the South Portland detectives?” he asked.

He said it was odd that Melody and Lisa Higgins said his wife had told them to come forward.

“Now they’re bringing my dead wife into this?” he said he told Ross. “There should be a law against somebody like (Lisa Higgins). She got evidence and she knew it for 20 freaking years? It’s hearsay. Why would you wait till my wife passed away to start saying this sh**?”

He said he thinks Lisa and Melody Higgins accused him of the crime out of spite because six months after his wife died he started a relationship with Lisa’s best friend. He also said that Indigo was “in cahoots” with Lisa to incriminate him.

Lisa Higgins disputed Bridges’ theory.

“I don’t care who she dates,” she said Thursday. “It has nothing to do with what Mike did. I feel that he is nervous because the truth is going to starting to come out and that’s his way to back himself up.”

Indigo responded to Bridges’ claims Thursday, saying “there is no conspiracy against Mike.” She said she is not close with Lisa Higgins and has not seen her in 20 years.

When asked what he knew about the night of Dickson’s murder, Bridges said, “I was never there, I don’t know the guy, I don’t know the girl. It’s all hearsay bullsh**.”

He said after the one interview with Ross, he never heard from the State Police again.

Melody Higgins said in interviews with Pine Tree Watch that she is angry that her story was dismissed by law enforcement officers and has been ignored by the courts after she made the difficult choice to come forward. Still, she regrets not doing it sooner.

“Had I known someone else was in jail for what he did, yeah, I would have went to the police way back when,” she said.

She added that she hopes Bates’ appeal succeeds and he gets a new trial and that she has the opportunity to testify.

Like Melody Higgins, Indigo is now eager to tell her side of the story.

“Of course I would testify,” Indigo said, and Bates’ lawyer Cyr filed a brief Thursday to see that that happens. In it, he said her testimony is significant because it establishes that Dickson was alive after Bates left her apartment and that multiple men, including Michael Bridges, were consuming alcohol across the hall from Dickson on the night of her murder.

“I truly hope that the state of Maine does the right thing and at least re-investigates the tragic murder of Tammy,” Indigo said. “I can state for fact that Foster Bates left (Tammy’s apartment), and Tammy was alive when I knocked on her door.”

The Maine Center for Public Interest Reporting is a nonpartisan, nonprofit news service based in Augusta. Our public-facing website is pinetreewatch.org.

 

Comments (1)
Posted by: Francis Mazzeo, Jr. | Mar 05, 2019 08:05

Ask any guard, they are all innocent.



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