How Bass Berry Helped Free 3 Wrongfully Convicted Men

By Marco Poggio | January 19, 2024, 8:28 PM EST ·

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Wayne Burgess at his family farm where he grew up in Pulaski, Tennessee, following his release from prison. Burgess was one of three wrongfully convicted men whom attorneys from Bass Berry & Sims PLC and the Tennessee Innocence Project helped free last year. (Tennessee Innocence Project)

When he walked out of prison last May after serving 24 years of a wrongful life sentence for murder, Wayne Burgess found a changed and disorienting world.

Technology had changed much of what he remembered about his old way of life on the outside, and getting used to having space and people around him was difficult at first, he said. Even a trip to Walmart in his first week of freedom was enough to bring on a feeling of sensory overload.

"Things have changed in the world. I know that," he said. "But it's good — it's great to be free."

Burgess, now 61, was released from Hardeman County Correctional Complex in May after a Tennessee state judge vacated his 1999 felony murder conviction based on new testimony from the state's medical examiner that it was "not medically possible" for him to have committed the crime.

He is one of three wrongfully incarcerated people, all of them Black men, whom attorneys with Bass Berry & Sims PLC helped get released last year, working pro bono in partnership with the Tennessee Innocence Project.

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Wayne Burgess talks to reporters following his release from Hardeman County Correctional Complex in May. His son, Jarvis Cox Burgess, stood to his side. (Tennessee Innocence Project)

Artis Whitehead was the latest to be released on Dec. 15 after spending nearly 21 years in prison for the 2002 robbery of a Memphis, Tennessee, club despite a lack of physical evidence connecting him to the crime. And Thomas Clardy was released from prison on Oct. 20 after 17 years of incarceration for the murder of a man outside a Madison, Tennessee, auto body shop in a case where evidence pointed to other suspects.

Starting in 2019, when the firm began partnering with the Tennessee Innocence Project, Bass Berry attorneys collectively devoted more than 4,000 hours toward the three cases. That commitment involved the work of more than 30 professionals and included two six-month fellowships in which two of the firm's attorneys, Danielle D. Irvine — now at Axinn Veltrop & Harkrider LLP — and Ashleigh D. Karnell, spent working full-time on these and other wrongful conviction cases.

"There's just nothing more satisfying as a lawyer [than] to achieve the kind of results that we've been a part of in these cases," Bass Berry pro bono partner David Esquivel told Law360.

Jason Gichner, a deputy director and senior legal counsel at the Tennessee Innocence Project, said he's grateful to all law firms that allow attorneys to work on overturning wrongful convictions.

"These types of collaborations mean the world to us," he said. "Anytime we can get smart, hardworking people that want to work these cases with us and we have, frankly, more boots on the ground, it's great."

Wrongful convictions occupy a notoriously complex area of the law, and one that's different in each state. Reopening a case is an uphill battle, and can require digging into years-old records, finding witnesses who may no longer be alive or searching for evidence that has been destroyed. Cases like the ones pursued by the Tennessee Innocence Project can also uncover layers of sloppy police work and prosecution — and sometimes even misconduct.

"It's never one thing on its own that results in an innocent person getting convicted," Gichner said. "It's always four, five, six things that all went wrong. It's a snowball effect of mistakes or intentionally done things."

Burgess was convicted for the 1997 death of his then-girlfriend's 16-month-old daughter. According to prosecutors, the child died after Burgess struck her in the abdomen, causing a fatal liver laceration. While Burgess confessed to the murder, he went on to say he was coerced by police into taking responsibility, and he has maintained his innocence throughout his sentence.

And as Burgess' post-conviction attorneys later found out, the timing of the victim's injury as presented by prosecutors was off.

On Aug. 8, 1997, at around 4:30 p.m., Burgess was picked up from his home after work by his girlfriend, Nakia Rivers, and her daughter Nakeavia. The three of them got food at Sonic and went to a furniture store before driving back to Rivers' apartment around 7 p.m., according to investigative files and trial evidence cited in a motion to reopen the case. Burgess placed the child on the sofa, and Rivers walked upstairs.

When the mother heard a whine, she walked back down and found the girl lethargic, but without any outward sign of injury and not crying. Rivers rushed the girl to a hospital about a mile away, entering the emergency room at 7:05 p.m., according to hospital records. But Nakeavia, who by then was in critical condition, could not be saved.

The doctor who performed the autopsy, Dr. Charles Harland, determined the child bled out as a result of a trauma suffered in the few minutes between when the child was alone with Burgess and when she arrived at the hospital in critical condition.

Aided by Karnell, the Tennessee Innocence Project filed a motion to reopen the case, attaching a 71-page post-conviction brief with more than 1,000 pages of exhibits casting doubt on Burgess' conviction. Testimony from the state's current chief medical examiner, Dr. Adele Lewis, found that based on Nakeavia's internal bleeding, it was impossible that her injuries were inflicted in the few minutes she had been around Burgess. Instead, the doctor concluded, the girl's bleeding had most likely begun hours or even days before her death.

Giles County Circuit Court Judge David L. Allen ultimately found the medical evidence compelling enough to vacate Burgess' conviction in April. He ordered Burgess released a month later.

On May 23, Burgess walked out of Hardeman County Correctional Facility to embrace members of his family, including his son and the attorneys who helped him get free.

"I hope that maybe hearing stories like this will encourage other firms and other attorneys to get involved," Karnell told Law360.

Artis Whitehead was sent to prison for a 2002 robbery at B.B. King's Blues Club in Memphis. Eight months later, a Crime Stoppers tip identified Whitehead as the robber, which resulted in his arrest. Four of six testifying eyewitnesses did not identify Whitehead as the robber, and he was convicted despite a lack of physical evidence.

Bass Berry's pro bono team and the Tennessee Innocence Project's attorneys spent years developing extensive new evidence of Whitehead's innocence, discovering that the Crime Stoppers calls implicating him came from a police informant who was hoping to receive a lighter sentence on his own state and federal charges. Whitehead's post-conviction lawyers found that the informant had lied before, implicating several innocent people in an unrelated murder case.

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Artis Whitehead (third from right) with Tennessee Innocence Project attorneys after his release from Hardeman County Correctional Complex on Dec. 15. (Tennessee Innocence Project

The attorneys were able to show a post-conviction court that the Memphis Police Department and the original prosecutor knew the informant's identity and his credibility issues, but kept that information hidden from Whitehead's trial attorney, which a judge later agreed violated disclosure obligations prescribed by the U.S. Supreme Court's decision in Brady v. Maryland . Meanwhile, fingerprint, palm print and DNA testing on items at the crime scene done by Whitehead's new legal team produced no matches.

"So many things kept coming up," said Irvine, who joined Axinn in New York in 2022 and specializes in antitrust, compliance and regulation. "It almost reads like a TV show."

In light of the new evidence, Shelby County Criminal Court Judge Jennifer Fitzgerald vacated Whitehead's conviction on multiple legal grounds, including the Brady violation and ineffective assistance on the part of Whitehead's trial counsel.

Prosecutors have since appealed the judge's ruling.

When the then-defunct Tennessee Innocence Project relaunched in 2019, Thomas Clardy's case was the first one it referred to Bass Barry. By then, Clardy had already been in prison for more than a decade after being convicted for a 2005 murder outside an auto body shop. He was found guilty based on testimony from a single cross-racial eyewitness who came forward to identify Clardy nearly a month after the crime. Evidence gathered after trial pointed to different suspects.

On June 30, in response to Clardy's petition for habeas corpus filed by Bass Berry and Tennessee Innocence Project attorneys, Judge Aleta A. Trauger of the Middle District of Tennessee found that he had received constitutionally deficient legal representation at trial, where his attorney failed to point out the limitations of the eyewitness identification that implicated him.

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Thomas Clardy (second from left) soon after he was released from Riverbend Maximum Security Institution on Oct. 20. He was welcomed by his son (first from right), Bass Berry & Sims PLC attorney Scott Gallisdorfer and Jessica Van Dyke, the executive director of the Tennessee Innocence Project. (Bass Berry & Sims PLC)

The Tennessee Attorney General's Office has appealed that decision to the U.S. Court of Appeals for the Sixth Circuit.

Because appeals are pending in Clardy's and Whitehead's cases, their attorneys declined to make them available for interviews.

Reentering society after years behind bars can be a shocking experience. Many people currently serving life sentences were locked up when emails and cellphones weren't widely in use.

Gichner, who during his tenure at the Tennessee Innocence Project has had many meals with people who had just been released from prison, said he's familiar with the mix of excitement and bewilderment they often show upon release.

"Just imagine: If you just went away now, and you came back 25 years later, what the world would look like," he said. "The things that we take for granted are all mind-blowing to them."

In addition to coming back to a society that has in some ways left them behind, formerly incarcerated people often contend with medical conditions that began or were largely neglected while in prison.

Burgess, who's been struggling with significant kidney issues since he got out, said he's "feeling better now" after being found to be in kidney failure on the day of his release. He will have to be on dialysis for the rest of his life unless he receives a kidney transplant, his attorney said.

"Everybody is always happy to get out. Everybody is grateful to be with their family and to be reunited with their loved ones and to get to live life as fully as they can. But the years of being incarcerated really do a number on people," Gichner said. "Physically and emotionally, that's a tricky transition."

Surviving in prison was trying for Burgess at first. He left behind a son who was only 5 years old and lost a brother while he was locked up. He says he missed his family, seeing people in church and good food.

"I never had been in that environment before," he said. "It was difficult."

Over time, Burgess found purpose in his religious faith and from a voice in his head reminding him "to do what you're supposed to do," he said. He worked as an aide to the prison chaplain and became an informal spiritual adviser to other incarcerated people. In that role, he crossed paths with Whitehead, who was incarcerated in the same facility and served as a leader of the prison's Muslim community. They both worked in suicide prevention, sitting with people on suicide watch to ensure they were OK, Gichner said.

"Things started to look a little better," Burgess said. "It's not great being in prison, but I was able to adapt to situations and circumstances. I've been able to help people."

--Editing by Alanna Weissman.

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