QUOTE OF THE DAY: “DO NOT DESTROY” is a warning about more than just boxes of criminal evidence. It also applies to the people over whom prosecutors hold enormous power. It’s a caution about the lives they can wreck when they take that power and stubbornly, persistently misuse it."
STORY: "Bad faith" by reporter Susan Greene, published by The Colorado Independent on October 25, 2016; (A recovering newspaper journalist and Pulitzer finalist. Her criminal justice reporting includes “Trashing the Truth,” with Miles Moffeit, and “The Gray Box.”)
SUB-HEADING: "Denver DA Mitch Morrissey leaves office in January. This is the story of the 29-year-old case he won’t let go."
GIST: "The retrial of Clarence Moses-EL for a 1987 sex assault starts Nov. 7th in Denver District Court.v Moses-EL, 60, served 28 years in
prison before a judge threw out his convictions last December. Newly
discovered evidence, the judge ruled, was pertinent enough “to allow a
jury to probably return a verdict of acquittal in favor of the
Defendant.” The new evidence includes the
statements of a man who testified that he had rough consensual sex with
the victim and beat her up at the exact same time and place she said she
was attacked. That man was the first person the victim named in her
statement to police, who never investigated him as a suspect. He’s also a
convicted rapist. You’d think that would be enough for
Denver District Attorney Mitch Morrissey to drop the case against
Moses-EL, who has proclaimed his innocence since the day he was
arrested. But it isn’t. Nearing the end of his three terms in
office, Morrissey is risking his reputation by re-prosecuting an
apparently innocent man for an attack to which a known sex offender has
confessed. Morrissey is gambling his legacy as a pioneer in DNA evidence
on a case in which city officials trashed all the physical evidence
before it could be tested. It’s a long shot for the DA’s office,
considering its only evidence against Moses-EL is that the victim
claimed his identity came to her in a dream. That’s right. A dream. Nothing about this case – and
Morrissey’s decision to keep pursuing it – has ever made sense. Not to
Moses-EL. Not to his defense lawyers. Not to me. I have covered the surreal twists and
turns of Moses-EL’s conviction for 10 years. Know right now that I’ve
come to believe in his innocence. Know, too, that for reasons I cannot
understand, Morrissey – who has declined an interview for this column –
has been hell-bent on pursuing this case, and has attacked my
credibility and twisted facts to the media and to lawmakers. The new trial is scheduled to start
the day before the most attention-grabbing election in recent U.S.
history. That means the story behind The People v. Clarence Moses-EL is likely to be drowned out by other news. So hear me out about the case Morrissey keeps pursuing in our names.........At trial, the victim’s dream
statement was the only evidence presented that linked Moses-EL to her
rape. His defense attorney – whom Moses-EL later said was incompetent –
didn’t have the blood evidence fully analyzed nor ask to have the
physical evidence DNA tested. He insisted that Moses-EL not take the
witness stand. His strategy relied largely on witnesses testifying that
Moses-EL was at home with his son and brother-in-law at the time of the
attack. Prosecutors poked holes in that
defense, pointing out inconsistencies in alibi witnesses’ testimonies.
And that’s how the jury came to convict Moses-EL, handing down a
48-year sentence for first-degree sex assault, second degree assault and
second-degree burglary. “A dream,” Moses-EL told me from prison in 2006, when I first reported his story for The Denver Post. “I’m in here because of a dream.”.........Dawn of the DNA era: Where were you during the O.J. Simpson trial? Moses-EL was watching from the
Crowley County Correctional Facility in 1995. While his fellow prisoners
grumbled about the racism that tainted the police investigation, he was
struck by something else: defense attorney Barry Scheck’s work with DNA
evidence, which then was a frontier in criminal law. Moses-EL was one of scores of
prisoners who wrote Scheck in New York seeking help with their cases. He
was elated when Scheck agreed. Scheck said he’d handle the
post-conviction appeal for free if Moses-EL paid $1,000 to test the
physical evidence for DNA. Genetic fingerprinting wasn’t widely
available when Moses-EL was arrested eight years earlier. This was his
chance, finally, to prove he wasn’t the assailant. From prison, he managed to raise the
$1,000, mostly from fellow inmates who had heard him talk about his
innocence month after month, year after year. Anyone familiar with how
prisons work knows it’s no small task to scrape together that much
money. For one thing, inmates don’t part lightly with the scant amount
of cash available to them. For another, if a DNA test that fellow
prisoners paid for out of their good will came back pointing to
Moses-EL, it wasn’t only his appeal that was in jeopardy, but also his
safety. “The fact that Clarence asked for
that money in the first place has always, to me, shown he’s innocent,”
Tim Masters, the first wrongfully convicted Coloradan to prove his
innocence with DNA testing, told me earlier this year. “If he’s not
innocent, there’s no way in the world he was going to make that
calculation, with the whole prison looking. No way. That’d be insane.” Do not destroy: The most reliable proof of Moses-EL’s
guilt or innocence likely was written in genetic code on the sex
assault kit, two stained bed sheets, a pair of men’s briefs, and a pink
and black outfit worn by the victim the night of the attack. He won a
court order in November 1995 to test those items, which Denver police
packed in a box they labeled in Magic Marker with large bold letters.
“DO NOT DESTROY.” About a month later, before the box
could be sent to the DNA lab, someone in the police department’s
evidence room ignored the label and threw the box in a dumpster. James Huff, the lead detective in the
case, had signed a form authorizing the box to be destroyed. Huff later
said the Denver’s District Attorney’s office hadn’t told him that
Moses-EL’s appeal was pending or that the judge had ordered the DNA
evidence be made available for testing. Tossing out the box clearly defied
the judge’s order, city policy, and common sense. Yet no one in the
police department or DA’s office was reprimanded. Moses-EL remembers the day he learned
police had trashed the physical evidence. He said it felt like being
“given cement shoes and thrown in the water just to sink.” Without the ability to prove his
innocence through DNA analysis, he asked for a new trial. The judge
sided with the District Attorney’s office, which argued that his case
didn’t meet the legal standard set by the U.S. Supreme Court for
criminal defendants seeking legal remedies when government agencies
mishandle or destroy evidence. Defendants are required to prove
authorities acted out of malice or “bad faith.” That legal precedent pre-dated
genetic fingerprinting, but still stands today, even now that DNA
testing is widely available and capable of revealing scientifically
irrefutable truths in criminal investigations. Legal experts say “bad
faith” is almost always impossible to prove. That leaves defendants like
Moses-EL with no recourse when key evidence goes missing or is scrapped
presumably out of negligence or human error. In 2006, during one of several
interviews I had with Moses-EL in prison, he was still chafed by
authorities’ refusal to give him a new trial. “They broke their own rules and threw out the only key to my freedom,” he told me. “If that ain’t bad faith, man, I don’t know what is.”.........In our 2007 interview, Morrissey defended the discarding of the evidence. “It got destroyed through the normal course of the destruction-of-evidence policies of the Denver Police Department,” he told me. I pointed out that the Denver Police Department’s operational manual
at the time specifically stated that police must “honor all valid court
orders” regarding evidence, and that “it is the responsibility of the
office or investigator” being asked to sign a destruction order to
“determine the status of the case…” I also pointed out records of the
city’s probe into the destruction incident showing Moses-EL’s evidence
was, in fact, trashed in defiance of Denver policy. “Defied?” Morrissey asked me. “How are you defining ‘defy’?” After nailing Jackson on the cold
case rape, Morrissey wouldn’t agree to re-investigate Moses-EL’s case or
to grant him a new trial. “There’s nothing to support any reason to reopen the case,” he told me. “The defendant has had his day in court.” I asked if he could empathize with Moses-EL or put himself in his shoes. “No,” Morrissey said. “I’ve never raped anybody.”.........Fairness: Over the past 10 years, I’ve read
volumes of legal documents and court transcripts, conducted dozens of
interviews and written umpteen stories about Moses-EL’s case. Never has
he strayed from the details he laid out in our first interview in the
prison chaplain’s office. Never has he hesitated when I asked a tough
question. And never has anyone involved in that ugly August night in
1987 assured me that this case is even remotely fair. I’ve come to admire Moses-EL’s
strength and dignity throughout his ordeal. I’ve come to count him as a
friend. I admit I’m no longer objective about this case, but I assert
that I am factually right. It would be unfair to blame Morrissey
for the shoddy police work in 1987. It would be unfair to hold him
personally responsible for the department’s failure to interview LC
Jackson, letting him walk free then. It also would be unfair to fault
Morrissey directly for letting all the truth-telling DNA evidence get
tossed in a dumpster. Yet, in straining to justify those and other mistakes, Morrissey acts in bad faith, continuing to trash the truth of this case. The district attorney had more than
enough evidence in 2006 to re-examine Moses-EL’s convictions. Now, by
continuing to hang charges over Moses-EL’s head, he’s stripping even
more time from a man who’s already lost nearly half a lifetime to this
case while the man who admits he attacked the victim goes untried and unpunished. That is the greatest unfairness of them all. “DO NOT DESTROY” is a warning about
more than just boxes of criminal evidence. It also applies to the people
over whom prosecutors hold enormous power. It’s a caution about the
lives they can wreck when they take that power and stubbornly,
persistently misuse it."
The entire story can be found at:
http://www.
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
Harold Levy. Publisher; The Charles Smith Blog.
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
Harold Levy. Publisher; The Charles Smith Blog.
