The Marlow Gholston Case

I was appointed to represent Marlow Gholston in 1995 to appeal his conviction for selling drugs. Marlow was sentenced to life in prison because he had three prior convictions for the same offense (the law has since changed). Marlow claimed he was innocent, and we started his appeal by re-investigating the case to see if evidence existed that would clear him.

Marlow was arrested along with 14 other street dealers in Buford, Georgia by the Gwinnett County Drug Task Force. The task force set up a sting operation whereby they would ride through the drug areas and attempt to buy from several sellers on several different nights. On each night, an officer with a hidden video camera would buy drugs from someone and the video camera would record the sale. Behind the officer in another unmarked car was a confidential informant. Usually, this was someone who had also been arrested for selling drugs, but had cut a deal with the police to assist them in other cases. The informant’s drug charges were often dropped or reduced after they cooperated. The informant was to provide police the names of the persons who sold the drugs to the undercover officer. The officer in the first car (the one with the video camera) would relay a clothing description of what the seller was wearing to the second car (the one with the informant). The informant would give the police the name of the dealer. After two weeks of drug purchases, all of the people whose names were given by the informant were arrested at the same time by the police.

Marlow was part of the group that was arrested. According to the informant, Marlow Gholston was the man who sold drugs on two different occasions on the same night, October 8, 1993, once at 9:00 p.m., and then again at 9:30 p.m. The sales took place at Roberts Street at Brown’s Alley (click for image of Roberts Street). Marlow’s first lawyer was a public defender. When his lawyer asked for the videotape of the drug sales, the prosecutor told him the tape malfunctioned and there was no recording of the sales. At his first trial, Marlow took the witness stand and told the jury he was not the one who sold drugs that night. The prosecutor was allowed to present evidence of his prior drug sales. It was no big surprise that Marlow was found guilty.

When I got appointed in 1995, the rate for appointed cases was $35 per hour out of court, and $45 per hour in court. The first thing I did was ask the prosecutor for the tape. I was also told the tape did not exist. I was not satisfied with this answer. I went back to the 1993 arrest warrant logs and found all of the names of the other persons arrested in the drug sweep. I called all of the lawyers who represented other defendants to ask if there were any problems with the video tapes in the other cases. By then (two years later), all of the other cases were closed. Most had entered guilty pleas. All of the lawyers said they had a videotape. One interesting fact was that there was another sale in between Marlow’s sales, this one was at 9:15 p.m. and involved a Defendant named Melvin Malcom (see photo at right). I called Malcom’s lawyer, and he said they had a video tape. He also said that the tape was so bad that the DA offered him a five year sentence instead of the possible life sentence. How bad could it be? I asked. "Well, the cop was drinking a beer while he was driving the car that night," the lawyer said. "I watched the tape with my client and he said it was him, and he felt lucky to get the five year deal." Malcom had pled guilty.

I got in touch with the Assistant DA who prosecuted Melvin Malcom and requested the tape. I got lucky and the tape was still available. Usually tapes are destroyed after a suspect pleads guilty and the case is closed.

The videotape was a gold mine for Marlow’s case. Not only did it show the officer drinking beer, it also showed the sale which police later claimed was Marlow! All of that was great, but there was still one problem—the videotape was not very clear. In other words, the tape did not conclusively rule out Marlow as the seller.

(The following links are QuickTime files of the video clips mentioned above. You can easily install QuickTime on your computer by clicking here.
• Officer drinking beer >> high bandwidth | low bandwidth
• Officer making drug purchase >> high bandwidth | low bandwidth

We took the case to the Judge who granted a new trial due to the withheld evidence. The prosecutor did not even object to the new trial. Marlow would get another chance in court. However, the judge also ruled that the prior drug sales could be admitted against Marlow (as in his first trial). The only good ruling the Judge made for the defense was he did not allow the arresting officer to testify that after the sale he went back to the police station and viewed Marlow’s photograph from an earlier arrest to confirm the name given by the informant. Marlow’s appearance had changed somewhat between the 1991 and 1993 (see rollover image below) arrests, and the judge ruled the officer could not view a one on one photographic line-up; the photographs had to be viewed in a photo spread.

When the case was called for trial, the State put on their same case and argued that the tape was simply mislabeled by the officer. The defense, however, was ready to prove a case of mistaken identity. First, photographs of the videotape were submitted to an outside laboratory for enhancement. (click to view enhancement). Second, other suspects arrested in the same drug sweep were called as witnesses to view the tape in court. (see photos below)

Most of these witnesses were also serving life sentences and were convicted felons. They watched the tape for the first time in court, and they appeared sincere when they testified the man on the tape was not Marlow. According to the other sellers arrested, the seller was not Melvin Malcom either. Instead, the seller was a third man never identified by police, but identified by the defense at Marlow’s trial. (see photo at right). The Assistant DA who prosecuted Melvin Malcom using that same tape was called as a witness. This did not make me very popular at the DA’s office. Also, Melvin Malcom’s defense lawyer was called to the stand to say he was shown the tape and told it was his client. Marlow also testified, this time, backed up by the tape. In my closing argument, I not only reminded jurors about the problems with the State’s case with the supposedly missing videotape, I also reminded jurors of the voice of my client when he took the stand and the voice of the seller on the videotape. They were not the same.

The same day as the closing arguments, several Atlanta police officers were arrested and charged with taking bribes from drug dealers for protection and to arrest rival drug dealers. Just down the hall in the Gwinnett courthouse, a Gwinnett County police officer was convicted of murder. Those facts probably helped the jury see the reasonable doubt in Marlow’s case. Police officers are just like any other witness. They are capable of mistakes. The jury later returned a verdict of not guilty after requesting to view the videotape one last time (click to download Adobe Acrobat PDF of newspaper clipping).

After the trial, I gave Marlow $20.00 for a cab ride home to Buford where he lived with his mom. My mom had come to see me on the first day of Marlow’s trial too. The first time she had ever seen me in court. Marlow promised to stay out of trouble and to stay in touch. When I next heard from Marlow he was back in jail again, for the same offense, selling drugs. He swears that it was not him who sold drugs on October 8, 1993. After seeing all of the evidence, I believe him. Some say, it was a real waste of time because Marlow just got rearrested again and thrown back in jail.