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Gerald Marshall Case 2: The witnesses

Snitch testimony, a 10-year probation leniency and an incredible in-court revelation

Kenny Calliham

Kenny Calliham was the gateway driver on the night of the Whataburger robbery/murder.

One cell, one story, no suprise

Once all three defendants (Marshall, Worthy, Calliham) were charged with capital murder, the trial court entered a “keep separate order”. That means, they should have been housed in separate cells in order to prevent them from colluding and getting their “stories straight”. But in this case the order was not enforced correctly. Instead Worthy and Calliham were housed together for several weeks.

It comes as no surprise, that in their time at Harris County Jail, Worthy and Calliham would “concoct” a story and collaborate to exonerate themselves as literally stated by the prosecution in their closing statements of the trial against Ronald Worthy.

The jailhouse ‘lawyer’

During their time together, another cellmate, Dennis John Meyer, helped Worthy and Calliham prepare affidavits that would “verify their roles as they wanted to be seen” and to “clear each other of any wrongdoing” as stated by Meyer. Meyer had the reputation of a “jailhouse lawyer” and prepared the affidavits for Worthy and Calliham.

A sweet deal for a tainted witness

When the police arrested Calliham, like his co-defendants, he was facing capital murder charges. Despite his contradictory and inconsistent statements, HPD detectives “motivated” him into afflicting Gerald with the murder of Christopher Dean by a) lying to him when claiming that Gerald was “trying to put it all on you”, b) asking leading questions and c) offering him a sweet deal: instead of a death sentence, a life or lengthy prison sentence he would only receive a ten year “probation” sentence and was practically ‘free to go’ despite having committed an aggravated robbery.

These are just some examples of Kenny Callihams contradictory and untruthful statements:

  • Calliham denied having known that a robbery was about to take place (Ronald Worthy stated that he had paid Calliham 50 $ for being the driver). This claim was so implausible, that even the prosecutors ridiculed it in the trial against Worthy.
  • Calliham saw both Marshall and Worthy return from the Whataburger at the same time. Later he stated Worthy immediately returned and Marshall returned later (after the shot)
  • Marshall had a black gun (the two Whataburger employees stated the robber had a “shiny” pistol). Later it turned into a chrome gun.
  • When they returned, both Marshall and Worthy shouted “go go go” and nobody talked about the shooting. Later Calliham claimed Marshall had stated he killed the victim.

Calliham also later evidently tried to convince a friend to lie in another case to the police (that means to commit perjury), as pointed out in Worthy’s trial.

The same prosecutors, who used the statement of Calliham to secure a death sentence against Gerald Marshall, later in Worthy’s trial poignantly summed up, what Kenny Calliham was:

“First of all we know, Kenny is a liar” (Colleen Barnett, closing statement).

Wilbert Marsh

Wilbert Marsh worked at the cook station at the Whataburger on the night of the robbery. When the robber forced his way into the Restaurant, Marsh looked up and briefly saw a man with his face covered holding the victim at gunpoint. He then ran and hid behind some boxes.

Marsh gave two statements to the police shortly after the crime. According to these statements, the robber was a young African American man with a dark complexion, slim build, holding a shiny pistol in his left hand.

Marsh identifies a suspect who resembles Ronald Worthy

When HPD showed him two photo lineups, he ‘immediately’ picked out Samuel Robinson (who was not involved in the crime but resembled Ronald Worthy). He did not pick out Gerald Marshall. Marsh was never shown a lineup containing Worthy’s photo.

Marsh later was told by police, that he “had picked out the wrong person”, a statement that violates police identification protocol and is also highly suggestive.

Suggestive in-court identification

One and a half year later Marsh had seen Gerald Marshall’s photo multiple times, he had been told by police that he had picked out the “wrong person”. Then again he was shown Gerald’s picture. Marsh eventually identified Gerald Marshall at trial as the person he saw enter the drive through window.

It is noteworthy, that Marsh’s statement at trial consisted many contradictions and was in part evidently wrong,

More importantly Marsh’s in court statements are according to undisputed scientific knowledge inherently unreliable (see the affidavit of Prof. Roy S. Malpass, founder of the “Eyewitness identification research laboratory” at the University of Texas at El Paso)

Fragile Memories

Facial recognition memory decays over time. The observer’s memory can also be easily changed or assimilated in the course of an investigation for example by mug shots, photospreads, media images etc. Notably the observer is unaware of this process. When asked to retrieve the original facial memory, the observer is likely to recall the altered image without realizing it. In general the observer’s memory formation is dependent on multiple factors such as speed of the impression, angle of the face or if the face was obscured by a mask.

Typically the ‘fresher’ a memory is, the more reliable it is since it is exposed to less altering influences.

In the present case Marsh’s memory was vulnerable and incomplete from the beginning due to the circumstances. After having been confronted with different photospreads containing Gerald Marshall’s photo and being told he was “wrong” in picking Robinson, after 18 months having passed since the crime and after clear evidence of wrong statements he made during the trial (possibly being unaware about this), it is scientifically sound to conclude that his in court identification of Marshall was entirely unreliable.

Unreliable in-court identifications

It is also important to understand that in-court identifications are in general notoriously unreliable: to make sure that a witness memory is not altered or negatively influenced by identification procedures, a specific protocol has to be followed for example when conducting an identification by photo-lineup. Not only should the procedure be “double blind”, that means constructed by one and administered by another officer (to avoid bias and influence) but especially so called “fillers” have to be present, that is pictures of non-suspects to avoid that the witness gets mistakenly fixated on the one presented individual. None of these factors were achieved here. Instead Marsh was explicitly told that his identification of a certain suspect was “wrong”.

In conclusion Marsh’s identification of Gerald Marshall was evidently unreliable and due to the suggestive nature of the police procedure never should have been admitted as evidence in the first place.

A general note about eyewitness-testimony:

Besides the impact that DNA-testing has had in overturning wrongful convictions, DNA based exoneration cases have shown the fallibility of eye-witness identifications especially when combined with improper police procedure. A study of the first 325 DNA exonerations nationwide showed that 235 cases involved eyewitness misidentification.

Clarence Green

Jailhouse informants are some of the more elusive creatures of the criminal justice system — cycling in and out of jail, always seeming to find themselves in the right place when another inmate decides to unburden himself and confess his crimes to a total stranger. They can help destroy an innocent man’s life and yet there is virtually no mechanism within the system to hold them, or the prosecutors who quietly use them, accountable”.

(Jesse Wegman in NY-times, 29.12.2019)

Jailhouse informant, or “snitch” testimony is infamously unreliable, because typically the informants are driven by significant incentives such as (often drastically) reduced sentences. In the case of Clarence Grimes Green one needs not to look very far to find a motive for his testimony against Gerald Marshall: Green, being a habitual criminal and facing assault charges against a police officer, was facing a sentence of 25 years to life in prison when he claimed that Gerald confessed to him in a holding tank, within 3 hours of having met for the first time in their lives. His testimony gained him a sentence of only one year in county jail.

Green claimed that Marshall had confessed to him and pretended to know certain details of the case, that were not known to the public. It’s no big mystery though, how Green could have gotten those details: in the three hours he shared a tank with Gerald Marshall, Gerald’s hard-of-hearing lawyer Mack Arnold had visited Gerald and due to his well-known hearing problems, the conversation was loud enough to be overheard by others.

Considering the true source of his information it is no surprise, that Green got key facts about the case wrong, for example he claimed that the robbery had taken place at a “Wendy’s”.

Wrong convictions are caused in large parts by jailhouse informants.