How being a passenger almost put a man behind bars for life in Alabama

But that’s what happened to Cruz, whose story is an example of how Alabama’s overly harsh habitual offender law has needlessly filled Alabama prisons with people serving life sentences, contributing to an aging prison population that is now at heightened risk of death amid the COVID-19 pandemic. What’s more, a review of Cruz’s case raises the more basic – and perennial – question of whether a fair trial was conducted in an Alabama courtroom. 

In Cruz’s case, an investigation by the Southern Poverty Law Center sparked a series of events that led to a judge granting him his freedom after almost 16 years behind bars. But many others sent to Alabama prisons under this law are not so fortunate.

Cruz’s story begins in Atlanta, where he was living and doing routine maintenance at a hotel where he would sometimes stay. He was off work when his supervisor and Osvaldo Reyes, a frequent hotel guest, came to his room to ask for a favor. Reyes needed to borrow a car to pick up some money, he said, and Cruz’s supervisor would only agree to let Reyes borrow her rented vehicle if Cruz would accompany him. 

Reyes said it would only take two or three hours, so Cruz agreed. 

They had barely hit the road when Cruz dozed off after enduring a long day of work the day before. When he opened his eyes, they were on Interstate 65 in Alabama. Cruz panicked. He was on probation for a drug possession charge from 1994 and wasn’t allowed to leave the Atlanta area. He only had five months of probation left. 

The police pulled them over in Warrior, Alabama, for weaving and making lane changes without signaling, according to court records. During the traffic stop, Officer Brian Cochran noticed nervous behavior from the men and the smell of marijuana. When Cochran asked to search the vehicle, he found 25 pounds of marijuana in the trunk. 

Cruz stayed quiet during the search. He later said he had no idea what the arrest was even for until he was booked at the city jail for trafficking in marijuana. He had two prior federal charges: a conspiracy to distribute charge from 1985 and a possession of cocaine charge in 1994. He had pleaded guilty to both and served his time, but in Alabama, those previous charges, coupled with a trafficking in marijuana charge – a Class A felony in the state – was enough for a judge to send him to prison for life under Alabama’s habitual offender law. 

Roberto Cruz and his family. Photo courtesy of Richard Hanson

Cruz has spent almost 16 years at Donaldson Correctional Facility. He’s now 71.

“I think it's a lot of time,” he wrote to the SPLC in October 2019. “I haven't killed anyone. I’ve been in jail for [a total of] 30 years just for drugs, and I think that this is too much time. And in this case, I’m innocent.”

With pressure looming from last year’s scathing report on Alabama’s horrendous prison conditions from the U.S. Department of Justice, prison reform was assumed to be a central focus for the Legislature this spring. Advocates were particularly adamant about a repeal of the habitual offender law, which triggered Cruz’s life without parole sentence. 

However, when courts closed and the state government halted due to the coronavirus pandemic in March, so did any meaningful opportunity for prison reform. That left Cruz and tens of thousands of incarcerated people in an even more dangerous and dire situation, despite calls from advocates and attorneys for mass releases. And although the Alabama Bureau of Pardons and Paroles plans to resume hearings on May 18 through electronic communications, critics are skeptical on whether the bureau, already facing an extensive backlog, will do enough to release the most vulnerable people.

Cruz is among 1,100 people the SPLC identified who are age 65 or older in the custody of the Alabama Department of Corrections (ADOC) – a population most susceptible to COVID-19. But as someone serving life without parole, his avenues for release seemed limited. He was one of 519 people serving a life without parole sentence under the habitual offender act, according to ADOC’s most recent statistical report, and one of 545 people age 60 or older labeled as habitual offenders.

“These people need to be reconsidered,” said Richard Storm, a criminal defense attorney in Birmingham. “I had high hopes that this Legislature was going to really come in with some things that would give real sentencing relief to a lot of people that are so deserving, but it doesn't look like it's going to happen.”

Storm zeroed in on the habitual offender act as needing reform.

“My whole problem with the habitual offender act is it's discriminatory in so many ways, because it leaves it up to one person, to the trial judge,” he said. “[Advocates] are trying to get this act changed and amended in such a way that this takes away some of that harsh discretion

Reform could also prevent prosecutors from weaponizing the habitual offender act by offering not to use it in exchange for a guilty plea for a lesser sentence – an agreement that also means a person foregoes their right to a trial by jury. 

Condemned from the beginning

Cruz’s story exemplifies why reform is needed.

After his arrest in 2003, he waited roughly two years in jail before going to trial. During this time, his co-defendant, Osvaldo Reyes, took a plea deal in 2004 and received a 10-year sentence with only 18 months to serve. Reyes, however, had an immigration detainer, and he was deported to Mexico in early 2005 shortly before Cruz’s trial.

Reyes’s absence was a devastating blow to Cruz’s defense. 

According to Cruz and from testimony during the trial by his attorney, Temo Lopez, Reyes was going to be a witness for the defense at Cruz’s trial. Reyes planned to testify that Cruz had no idea about the marijuana, and it was a pickup he had made, records show. Cruz even had a written statement – in Spanish and English – signed by Reyes and notarized. The statements, however, were not allowed into evidence due to them being declared hearsay. 

It wasn’t until the day of the trial that Lopez learned his most important witness was no longer in the country. The defense’s case now rested on Cruz’s testimony. 

“Here, everyone tells me that what they did to me was abuse because the judge denied me a translator, and I don’t know English,” Cruz, a native of Cuba wrote to the SPLC in Spanish, which was typical for most of his correspondence and calls with the SPLC. “The judge told me to defend myself with the English I knew. The jury didn’t understand me.” 

Lopez asked the trial judge, Gloria Bahakel, for a court-appointed interpreter before the jury proceedings, records show. Bahakel said she had made the determination in the jury room where pretrial hearings were held that Cruz could understand English. Cruz’s attorney added that his client did not have enough command of the English language to understand the criminal proceeding and had a thick accent he worried the jury would not understand. 

Bahakel held firm on her denial. 

“Ricky Ricardo had a terrible accent, too, but people understood him,” she said, according to court transcripts. “If he speaks slowly enough, we don’t have a problem.”

Bahakel declined to comment for this story. 

During the state’s case, Cochran, the police officer, testified that at the time of the arrest Reyes’ shirt smelled strongly of marijuana, while Cruz’s did not. The prosecution asked why. Cochran said he could only give a “speculative answer” and that “the boss man usually hires someone to carry their package.”

Corey Archer, a detective for Warrior at the time, also testified for the prosecution. He said that he did not speak to Cruz at all during the arrest. Instead, Archer said that Reyes told him he was being paid to transport marijuana from Atlanta. Prosecutors asked if Reyes indicated that Cruz knew what was in the package. Archer’s answer: “yes.” 

In some circumstances, Detective Archer’s statement would be considered hearsay, as it was made during a trial where Reyes wasn’t available to confirm or deny the detective’s statement. However, in this case it was admitted as an exception to the rule. 

Cruz’s last attempt to defend himself was testifying that he had no sense of smell to detect the marijuana. His inability to smell, he testified, was the result of someone accidentally hitting him in the face with a bat on the baseball field at a federal prison where he was held in the early 1990s. The hit was so severe, Cruz required reconstructive surgery. 

The prosecution responded by calling Deputy Ricky McClure, who worked at Jefferson County jail in Birmingham, where Cruz was incarcerated before the trial. McClure testified that he once noticed Cruz using dirty laundry to conceal the odor coming from a jug of Julep, a type of liquor often made in jails and prison. According to the court record, prosecutors asked McClure if it is “the only indication that you have that Mr. Cruz can, in fact, smell?” 

“That would be the most pronounced, yes, sir,” McClure responded.

Allowing the deputy to counter Cruz’s testimony about his sense of smell is unusual, according to one law professor.

“Unless this guy is some sort of expert on [the] olfactory sense I don't understand how he gets in to testify about that,” said Jenny Carroll, a University of Alabama professor of law. “It may be possible that you both can smell inmate liquor, which can be kind of pungent, but cannot smell marijuana, which can be kind of sweet. But those are two different ranges, and having abilities in one range doesn't necessarily indicate the fact at issue, which is the ability to smell in the range for marijuana. For that you need an expert, and the state shouldn't be able to get around having to call an expert.”

At the end of the trial, Cruz’s attorney made a final attempt at a motion for an acquittal of the case. 

“I don’t think the State has met its burden to allow this case to proceed against Mr. Cruz,” he said. “They have proven that – and we didn’t have an objection to this – that that’s marijuana. It’s a fact that Reyes was driving the vehicle and Mr. Cruz was simply along for the ride.”

However, the state argued that the officer’s testimony that Cruz was acting nervous during the arrest and the testimony by McClure regarding Cruz’s potential sense of smell was enough for the case to move forward. 

“The trick is juries are asked to make inferences all the time,” Carroll said. “But this issue is about whether or not the evidence actually presented was factually sufficient to support the inference. The instinct that there should be a more serious limitation on the inference is spot on. Just because you're nervous doesn't necessarily mean that you know that there's a whole bunch of marijuana in the trunk of a car.”

In the end, the jury, however, found Cruz guilty of marijuana trafficking. 

“I had promised [my family] that I was not going to get in any more trouble and that everything that had happened before had been an accident,” Cruz wrote to the SPLC about his previous convictions. “I only had six months under supervision before I would be a free man.”

Prosecutors provided a different account as they pushed to sentence him under the habitual offender law. “Mr. Cruz has been dealing in drugs for the last 20 years, anyway, and then he comes into Alabama and does it here,” one prosecutor said, according to court records. “So, it's time to put a stop to all this. I am going to ask you to sentence him to life without parole.

One of many

As a result, Cruz became one of hundreds of people serving a life sentence without the possibility of parole under Alabama’s habitual offender act and, more broadly, one of thousands serving an excessively extended sentence under the law.

According to one report, as many as 490 of the 519 people serving life without parole sentences under the habitual offender law had convictions other than murder, and hundreds had only one violent offense on their record. In Alabama, trafficking in marijuana is considered a violent offense, despite it being clear in Cruz’s case that no violent act took place. 

“There needs to be a wholesale review of the appropriateness of the marijuana punishment sections in the state of Alabama in light of the changing mores,” said David Simpson, a defense attorney who represented Cruz’s co-defendant, Reyes, in 2003. “And because Alabama is under the encumbrance of such a prison overcrowding problem, therein lies a very definite avenue to remove some of the most vulnerable and some of the least dangerous people from the system.”

For Cruz at least, in recent weeks his fate has changed and he won’t live the rest of his life behind bars. In late April, despite previous denials for post-conviction relief, the Jefferson County public defender’s office was assigned to his case – the first action taken in the case since 2017. 

On May 5, Adam Danneman, recently appointed to lead the county’s public defender’s office in 2019, filed an unopposed petition to vacate Cruz’s sentence entirely. According to the filing, the state unlawfully imposed the life without parole sentence under the habitual offender law because at the time of his trial Cruz only had one qualifying prior felony conviction for a sentence enhancement under the law.

“Neither of Mr. Cruz’s felony drug offenses from 1985 count as enhancements because the Habitual Felony Offender Act does not apply to drug convictions prior to October 21, 1987,” the record states.

The petition calls for Cruz to be resentenced to time served and immediately released from ADOC custody. 

This movement in the case occurred about seven months after the SPLC began investigating it. Danneman said the case was put on his radar after the SPLC contacted his staff for interviews about Cruz’s case. It is Cruz, however, who has been filing for relief on his own behalf for more than a decade.

Today, Judge Stephen Wallace granted the petition to resentence Cruz to time served – essentially granting his release after almost 16 years behind bars. 

“Importantly for Cruz’s case, the constitutional understanding of what penalties are proportionate to the crime charged may evolve over time, as society matures and progresses,” Wallace wrote in his order. “Regardless, this Court can contemplate few occasions where imposing a life without parole sentence for a non-violent marijuana possession or trafficking offense seems reasonable or proportionate.” 

Cruz now shares the same fate as Geneva Cooley who was sentenced to life without parole for drug trafficking charges in 2002 and was released last year at age 72. 

Cooley was also tried in Jefferson County. In 2018, the Alabama Legislature removed life without parole from the drug trafficking sentencing laws, and Cooley was granted a sentence reduction by the same judge who oversaw Cruz’s most recent petition for relief.

“It was the right thing to do to set the case aside,” Danneman said about Cruz’s case. “I do want to give our district attorney, Danny Carr, and Judge Stephen Wallace credit for being open minded to do the right thing here and what the law calls for. There are probably some DAs in the state that would have fought it, but I appreciate that they’re doing what’s right in this case”.  

Roberto Cruz and his family. Photo courtesy of Richard Hanson

Since Cruz has been in prison, many of his family members in Atlanta have died, according to his stepson, Richard Hanson. But he has grandchildren and family in Cuba he still dreams of seeing again.

In a letter to the SPLC before Danneman took action, Cruz clearly described his life if released from prison: “I want to be with my grandchildren and my great grandchildren, and spend my old age in peace.” 

Claudia Huerta, Mirtha Mendoza, Jeff Migliozzi and Liz Vinson contributed to this story. 

Photo by Brynn Anderson/AP Images