From Death Row to New Life: Part 1

The state sent Ndume Olatushani to death row for a murder he didn’t commit.

It took 7 days to convict him and nearly 28 years to overturn his conviction.

And the woman he loves helped set him free.

Ndume Olatushani

It’s a less-than-beautiful day in June. A sheet of clouds diffuses sunlight into the kind of unremitting planar whiteness that makes you squint and wish for clearer skies. But as Ndume (pronounced en-doom-ay) Olatushani clutches oversized sweatpants at his slim waist and shakes his short dreadlocks, it’s clear that he’s not disappointed by the soupy haze. He soaks it in with a wide smile.

Olatushani saunters joyfully past a fence topped with barbed wire—the same fence that constrained him for 28 years. “It’s so nice out here,” he exclaims. “Man! It’s such a lovely day, ya’ll!”

Ndume Olatushani strolled free from Shelby County Jail* on June 1, 2012, nearly three decades after he was convicted and sentenced to death for a murder he didn’t commit. His story is a confluence of worst-case scenarios and a case study in justice system failures. But more than anything, his story is a long, painful journey from death row to new life.

Olatushani, formerly Erskine Johnson, was born the seventh of 11 children. He was a happy, smart kid who liked softball and begged his mother to get on the school bus years before he was old enough. During his formative years, Olatushani’s family lived in the Pruitt-Igoe Housing Project in St. Louis, a development synonymous with crime and segregation. (In the 1970s, Pruitt-Igoe became the first project demolished by the federal government because it had become so lawless.) At age five, Olatushani remembers watching his neighbors stand by, indifferent, as a man was shot in open daylight.

“I didn’t understand it at the time, but it made an impact on me,” he says. “It was summertime, and people were all outside, and I heard the shots, and I remember now when I look back, people had become so desensitized to violence. I remember hearing people laughing and saying that he got what he deserved.”

Nearly 20 years later, an all-white jury in Memphis would say the same of Olatushani.

THE CRIME

On October 2, 1983, a grocery store owner in Memphis was shot during an attempted robbery. (note: Any murder committed {accidentally or intentionally} during the commission of a separate felony qualifies as felony murder; the defendant can be charged with first-degree murder—a capital offense, which means an offender who is found guilty can be sentenced to death.) The getaway car had been stolen from a Hertz rental service at the St. Louis airport. The Memphis police and district attorney looked to St. Louis for leads. Somehow, the trail led to Olatushani, a high school dropout with two prior convictions for petty theft.

“One of the things that was never really explained in my case was how I was developed as a suspect in this particular crime,” Olatushani says, pointing out that the only connection he can identify is that he and the getaway car were both from St. Louis. Plus, he says, he had an alibi: He was celebrating his mother’s birthday with family and friends in St. Louis the night the crime took place.

“I knew I hadn’t committed a crime,” says Olatushani. “I’d never even been in the state of Tennessee, so I’m thinking shortly thereafter, they’d figure out that I’m not the person that they’re interested in.

“I thought it would just resolve itself,” he says after a long silence. “Unbeknownst to me, they were already serious about it at that point.”

Olatushani was arrested in 1984. He was 24 years old.

WHAT WENT WRONG

What followed was a chain of assumptions, errors, and omissions that fits frequent patterns in wrongful conviction cases.

1. A Weak Defense

Olatushani decided not to accept a public defender, instead engaging a private lawyer in Memphis. But after being paid a retainer fee, the lawyer abandoned the case. At the last minute, Olatushani hired an attorney from St. Louis with little experience and less time to prepare. And despite the fact that in 1985, the population in Memphis was over 50 percent black, he faced an all-white jury. The stage was set for swift injustice.

The prosecution’s case hinged on evidence that appeal lawyers later claimed was tainted, fabricated, and indicative of possible misconduct.

2. Mistaken Witness ID

Though there were a number of eyewitnesses to the crime, none could make a positive identification of Olatushani, and only one took the stand. As it turns out, prosecutors had repeatedly shown the witness photos of Olatushani, telling him that the perpetrator had been caught and that the prosecution “needed his help.” Still, the eyewitness testified that he wasn’t 100 percent certain that it was Olatushani he’d seen.

3. Unreliable Witnesses

Prosecutors also used two witnesses who testified that Olatushani stayed at their home in Memphis the weekend of the crime. One later recanted, and the other was found to have a close relationship with a small cadre of St. Louis criminals who had a history of stealing Hertz rental cars.

Later, it was discovered that the two witnesses had hosted the (likely) robbers in their home during the weekend of the robbery-murder.

4. Evidence Withheld

Perhaps most disturbing, however, was the fact that the police had failed to turn over evidence to the defense—evidence that pointed to a different set of culprits altogether. During the appeal phase of Olatushani’s case, his counsel uncovered that evidence, spurring nearly two decades of effort to free him from death row.

The original trial took only seven days.

“I was so angry sitting there, being a part of this whole sham process,” Olatushani says. “You know, the lawyer is telling me not to react to what is being said, even though people are sitting up there lying, and you know they’re lying. I had to maintain this presence in front of the jury. But I think they wanted to convict me. I was this young black man sitting on trial before an all-white jury being accused of killing a white man in the South. It wasn’t a real stretch for them to do what they ended up doing.”

On December 7, 1985, it was clear that the prosecution had spun the more compelling yarn: the tale of a dangerous man with ties to St. Louis who’d been IDed at the scene of the crime.

Guilty as charged.

Sentenced to death and led to a concrete tomb.

DARK DAYS ON DEATH ROW

Olatushani spent his days isolated in a tiny cell. Meals appeared through a slit in the door. Occasionally, guards led him, shackled, to a small outdoor cage with no grass. After two years in these conditions, Olatushani learned that his mother had died in a car accident.

“I hit rock bottom,” he says, his voice clouded with emotion. “The last time I saw my mother, I told her that I didn’t know what I’d do if I lost her. I remember the last thing she said to me. She looked at me and said, ‘You’re going to know exactly what to do when the time comes.’

“It was through that fire that I was able to pick myself up, dust myself off, and try to move forward.”

Over the next few years, Olatushani learned to paint his grief and dreams onto canvases from behind prison bars. And in 1991, he wrote a letter to Anne-Marie Moyes, a woman who facilitated prison art shows around the country. Olatushani wanted to show his work publicly. What he didn’t know was that Moyes would one day become his lawyer, investigator, liberator, and eventually, his wife.

Olatushani and Moyes

*An original version of this story stated that Olatushani was released from Riverbend State Penitentiary. While that was where Olatushani spent a majority of his prison time, he was, in fact, released from Shelby County Jail. Our apologies. 

See Part 2 of Olatushani’s story—about his exoneration and life after prison.

Read Pursuit’s Q&A with Innocence Project attorney Nina Morrison about why wrongful convictions happen and what lawyers and investigators can do about it.

Read more stories of wrongful convictions:

The Innocent Man, by Pamela Colloff  (Texas Monthly)

Jailed Unjustly in the Death of a Rabbi, Man Nears Freedom, by Michael Powell and Sharon Otterman (NYTimes)

 Stories of the Exonerated (CBS News)