status

Tom Bird's

Current Situation

Kansas' Department of Corrections released Tom Bird on June 14, 2004, following the order by the Parole Board.

Read the story here.

Tom Bird is overjoyed at his release on parole. But there is still much to do. After settling in to a new routine, he will continue to pursue legal avenues to win exoneration. That hope lies mostly in getting a federal district court hearing on the merits of his claims of being falsely indicted, and because of the admittance of perjured testimony by Charles Henderson, a key prosecution witness.

The struggle to win vindication will take many more years. Meanwhile, Tom has reentered the workforce and hopes, someday, to be able to tell his story in public forums.

During May, 2004, the Kansas Parole Board ordered Tom Bird released. Final details of his parole -- where he would live and various other agreements -- have not been released as yet.

Tom, his family and friends are very thankful for the parole board taking this action. The board chair, following Tom's 2000 parole board hearing, said he was the best prepared candidate she had ever seen. She, in fact, was ready to vote for parole during that first hearing.

In Kansas, lifers almost always have to do 20 years before being considered for parole. As well, they must take responsibility for their crimes. Tom is innocent of the crimes for which Kansas convicted him. Therein lay his dilemma. At a May, 2003 meeting with him in prison, he said said, "If I have to confess to something I didn't do to win my freedom, then I will never leave this place."

This is why we are all so thankful for the parole board's action. They took into account his impeccable prison record and his parole plan. They saw that he would do, as one parole board member wrote, as much good on the outside as he has done on the inside.

Tom's appeals attorney, Ben Wood, miserably failed to represent Tom following the passage of the 1996 Anti-Terrorism Act -- it had served to restrict appeals filings based on habeas corpus issues. It took until late in 2003 for the Kansas Supreme Court to agree with Tom that Wood had failed him. This allows Tom to go back to federal district court and ask the judge to allow him to file the appeal that could set him free.

If Tom can get a fair hearing in front of a federal judge, he has a good chance of showing that the indictment in his 1985 trail was woefully unconstitutional. If the judge so found it, the sentence would have to be vacated.

Incidentally, Wood had been a strong advocate for Tom for many years. Wood hated the death penalty, and even though Tom never faced it, it gave Wood much motivation to work for a wrongfully convicted man. Wood finally quit the practice of law and in his parting shot at the judicial system, condemned it for continuing the death penalty; he saw that his battle against it was hopeless.

Nothing comes easy for Tom Bird. Because of the actions noted in the 5/12/03 posting below, Kansas forced Tom to bring an action against his former appeals attorney, Ben Wood. Wood apparently failed to represent Tom's interest in filing timely appeals that would have kept the clock running on his federal appeals. The federal court had thrown out Tom's appeal because of the timeliness issue.

So on July 15, 2003, Kansas brought Tom to Topeka so he could formally charge Ben Wood with various counts of misrepresentation. The counts against Wood are very damning and any fair and sane ruling body would decide in Tom's favor. If they do, it will give him an argument to re-file his federal habeas corpus claim.

Previously, Tom filed an appeal of the federal district court's ruling against him, but given the actions of other courts, he feels certain they will fail to consider the case on its merits. Tom said he is doing this for the benefit of his children, to show them that he will never give up trying to win his freedom. But given how the courts have treated his appeals, it is unlikely he will win justice there.

As for parole issues, a close friend of Tom's at Lansing prison recently won parole after more than 21 years. He told Tom that he confessed to his crime of first degree rape to win his freedom, though he still maintained his innocence. Tom told me, "If I have to plead guilty to win a parole, then I guess I will be here the rest of my life." The good news is, the Kansas Parole Board is willing to consider all factors, not just this one. Tom meets with the Parole Board again in 2005.

The 1he exhausting of all their state claims. It meant that Tom had to file his federal appeals by April 1, 1997. He took action to do so, through his appeals attorney, but never knew that his attorney failed to pay filing fees on his most recent claim. When Tom's new attorney went to court in December of 1999, she learned that his case had been thrown out of court.

Tom, then, had to file with the federal court begging them to give him time to file his federal appeal. They sat on his filing for more than two years, and then denied him. This means that he must prove that his attorney had committed malfeasance, misfeasance and nonfeasance in his case. Meanwhile, Tom has filed an appeal in the 10th Circuit Court of Appeals. He really needs a pro bono activist attorney's help.

Meanwhile, he is trying to get the Kansas Parole Board to move up its date for his next hearing. Otherwise, he will not meet the parole board again until January of 2005, more than 21 years after entering prison.

Rev. Ralph Bird, 82, Tom's father, died on May 10, 2002, in Little Rock, Arkansas. His death came suddenly and quite painfully, at least for Ralph. Tom was not allowed to go the funeral since it was held in Hardy, Arkansas. The same held true when his mother Virginia died in 1997.

In a recent visit to Lansing Correctional Facility, Tom told Caged Bird author Dave Racer that the single most painful thing for him to endure during his incarceration was that he could not be involved in the lives of his family members. And the death of a parent only exacerbates such a sense of frustration. Tom once told Racer that he hoped he would achieve parole, or his verdict would be overturned, in time for him to enjoy a few good years with his dad.

Rev. Bird wrote to Tom every day. He put vast resources into trying to win his son's freedom. Unfortunately, Ralph will never see it this side of heaven.

It took nearly two years for Tom to first hear from the Federal Court. They denied his motion for a writ of habeas corpus claiming he had filed his motion one day late. Once again, the courts refused to rule on the merits of his case. In this specific case, Tom argued that his first conviction (for solicitation to commit murder) should be overturned. He is filing a new motion to reconsider the court's action on this ruling, trying to explain that he mailed it timely, on a Friday, but it left the prison on a Monday--a condition beyond his control.

As for his motion on a writ of habeas corpus in the murder conviction, the judge has still failed to make any ruling. It seems there is no hurry to consider such a serious motion when it involves someone who is already incarcerated.

It is difficult to maintain respect for the judicial process when it, consistently during the 17-plus years of Tom's incarceration, has failed to ever consider his motions based on their merit. Rather, the motions continue to be dismissed, or ignored, based on technical issues.

Write to Tom or send an email via Pastor Ken. His spirit has taken a pounding.

In December of 2000, Tom filed a pro se habeas corpus motion with the Federal District Court in Topeka, Kansas. In his motion he asks for relief based on the unconstitionally vague indictment and perjured testimony of convict Charles Henderson in his 1985 murder trial. He also asks for relief in his 1984 conviction for Solicitation to Commit Murder.

As of this writing, those motions are still pending before the US District Court in Topeka.

Tom's first parole hearing was held during October, 2000. Three public sessions preceded that hearing. Dave Racer, author of Caged Bird, testified at two hearings. Tom's three children begged the Kansas Parole Board to release their dad. Sandra Stringer Bird, their mother, died in July, 1983. Her mother, Jane Grismer and Mrs. Grismer's family, vehemently oppose Tom's release, and testified at the Wichita, Kansas public hearing.

The Kansas Parole Board met with Tom at the prison during October. At the same time, they were considering Lorna Anderson's parole and immediately turned her down. In February, 2001, the board announced it was passing Tom over for 4 years and 2 months, making him parole eligible again in 2005.

Tom has maintained a clean record with no demerits while serving his prison sentence.

One of America's premier constitutional attorneys has offered a tentative opinion that Tom Bird has a perfect claim to win a Writ of Habeas Corpus.

Kansas University's Justice Project aided Tom in preparation of his pro se habeas corpus filing.

Tom has maintained his innocence from the beginning. He desires a new jury trail to clear his name of both convictions. Kansas Courts continue to deny him that opportunity.

Copyright, 2000 by Free Tom Bird, Inc who is solely responsible for all content. No article or information may be used in any public medium without the express written consent of Free Tom Bird, Inc. Permission is granted to download for private use as long as attribution is given to Free Tom Bird, Inc.

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