FORGOTTEN : D.A. put him in jail to assure his testimony

By THERESA CONROY
Philadelphia Inquirer
Aug. 02, 2006

KORVEL ODD was in the Twilight Zone.

For two months, from mid-November 2004 to mid-January 2005, Odd languished in the Curran-Fromhold Correctional Facility, trying to figure out why he was there, and desperately trying to convince somebody - anybody - to set him free.

Odd, 42, was jailed at the request of a Philadelphia assistant district attorney - not as punishment for a crime, but to ensure his testimony as a witness in a murder case.

Yet, even after the murder charges were dismissed, no one bothered to release Odd from prison.

Odd - who finally obtained his freedom after sending a written plea to a public defender - is suing the assistant district attorney who jailed him, Tom Malone, and the district attorney's office. His suit was filed in federal court in May.

"The evidence will establish that Mr. Malone was deliberately indifferent to the needs of my client for his liberty," Odd's attorney, Daniel Silverman, said in an interview.

"He was the only one in the entire system who knew why he was in jail," Silverman said of Malone. "I can finally use the expression 'Kafka-esque.' "

Malone, who has left the D.A.'s office to practice civil law, referred all inquiries about the case to the D.A.'s office, which is representing him in the matter.

Cathie Abookire, spokeswoman for the D.A.'s office, issued this statement:

"Nobody should be in jail unless there is a specific legal justification. The reason for this person's imprisonment and the responsibility for effectuating his release are the subject of the litigation."

Silverman did not want Odd interviewed for this story.

As the "Don't Snitch" culture spreads and the number of homicides rises, prosecutors have begun to rely more often on the extraordinary means of inspiring cooperation by imprisoning reluctant witnesses.

By filing a "material witness petition" or a bench warrant with a judge, prosecutors can have a witness locked up until after he testifies.

While prosecuting the murder of Luther Tucker, killed on Christmas Day outside the Eagle Bar, on West Erie Avenue in North Philadelphia, Malone had Odd picked up and sent to jail.

Odd, who had seen part of a fight outside the bar but did not witness a shooting, was too afraid to testify against defendant Alvin Way Jr. Consequently, Odd - described in the suit as suffering from schizophrenia and post-traumatic stress disorder due to a "long victimization of serious physical abuse" - failed to show up for court.

There were repeated delays in Way's preliminary hearing. At one point during the process, Malone asked Municipal Judge Marsha Neifield to issue a bench warrant for Odd's arrest, for failing to show up to testify.

Malone requested a special type of warrant, a "judge-only bench warrant," that only Neifield could lift.

Odd was arrested on Nov. 17, 2004.

"It was one of the most bizarre cases I ever had," said attorney Marc Neff, who represented Way. "The preliminary hearing went on for nine months."

When Malone finally presented the case - on Dec. 7, 2004, nearly a year after the shooting - he didn't even call Odd to the stand. Neifield discharged the case due to lack of evidence.

"After about a dozen listings of the case, the commonwealth doesn't go forward," Neff said. "They don't put forth any other witnesses and the case gets dismissed."

But Odd stayed in jail.

Odd asked his family to find a lawyer, but they couldn't afford the legal fees.

Then Odd reached out to someone he didn't know: Public Defender Glenn Gilman. Gilman became involved after Odd - whom he had never met or represented - contacted him from prison.

"He writes to me. I don't know him from Adam," Gilman recalled. "Because what he said was a little intriguing to me, I checked him out on the court computer. I could find no reason he was in custody: no detainer, no open case, no nothing. So, I went up to see him to interview him figuring there must be something I was missing."

Odd was lucky his letter landed in Gilman's hands, and that the lawyer distinguished it from all the other prison letters he receives.

"We get letters all the time and no one's ever in jail correctly, according to them," Gilman said.

But, during the prison interview, Gilman finally figured out what happened.

"I asked him to search his memory. That's when he told me that he did get subpoenaed in the past... . Then, I looked up the homicide case," he said.

Gilman immediately called Malone, but never got a response. The lack of response from the D.A.'s office led the defender to Judge Neifield.

Neifield, according to Neff, Gilman and Silverman, was "outraged" that Odd had been held in jail. In Gilman's words, "She hit the roof."

Neifield scheduled a hearing and demanded an explanation from Malone, lawyers said. During that hearing, Malone told Neifield that the bench warrant should have been lifted as soon as he was taken in to custody and that "something should have happened from that point," Silverman said.

But, lawyers familiar with the case said, Malone provided no explanation for his failure to have Odd released.

Neifield did not return a call requesting comment on the case.

"The system was such at that time that there was a void," Gilman said. "It was no one's responsibility but his, because he was the one who initiated the act... . It was his responsibility to release him."

Odd's civil attorney said that when Malone and the D.A.'s office "dropped the ball" they put his client in danger of retaliation for his cooperation. The irony, Silverman said, is that Odd ended up being more harmed by the prosecutor's office than by the people he feared would get back at him for testifying.

Gilman said he was pleased with his role in Odd's release.

"It felt good to make that happen because it was really a disaster and it could have been a tragedy," he said.

"He was like the forgotten man."
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Staff writer Michael Hinkelman contributed to this report.