PASSAGE OF THE DAY: "Attorneys representing the defendants intend to present testimony next week from forensic expert C. Alan Keel and Timothy Palmbach, a crime scene investigation expert, to explain the significance of the new tests. Both have already opined in reports that the evidence is indicative of a sexual assault carried out by a single unknown person. “The evidence is so strong as to their innocence, it’s kind of mind-boggling that they continue to oppose it, and they continue to oppose it based on the word, literally, of a 15-year-old that had diminished capacity and was an active drug user,” said Casteleiro. “I’ve been doing this for well over 40 years and this is as chilling a case as you’ll ever see, because it’s so flimsy and the evidence of innocence is so strong, and yet they continue to oppose it. It’s shocking.”
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STORY: "3 convicted in 1997 Delaware County murder seeking new trial; hearing Tuesday," by Reporter Alex Rose, published by The Daily Times, on July 23, 2034.
GIST: "Three men convicted for the murder of a 70-year-old woman in 1997 are seeking new trials, arguing modern DNA tests have reinforced their longstanding claim that a single, unknown male acting alone was the real killer.
Derrick Chappell, 41; Morton Johnson, 42; and Samuel Grasty, 46, were each found guilty of second-degree murder in separate trials for the death of Henrietta Nickens inside her home on the 3200 block of West 10th Street in Chester on Oct. 10, 1997.
Each had been identified by a 15-year-old from the neighborhood, who claimed to have acted as a lookout while the others entered Nickens’ one-bedroom apartment the night of Oct. 9 for the purpose of a robbery.
That teenager, Richard McElwee, took a plea deal to third-degree murder and conspiracy to robbery in exchange for testimony against the other three, receiving a sentence of 6-12 years.
Chappell, Johnson and Grasty each received mandatory life sentences.
They were 15, 18 and 20 years old, respectively, when the crime occurred.
Chappell was later resentenced to 28 years to life after the U.S. Supreme Court retroactively changed the rules for sentencing minors.
All are represented by attorneys from the Innocence Project, as well as pro bono attorneys who believe they were wrongly convicted.
“I think it’s a pretty exceptional case,” said John Lyons, an attorney with Shook, Hardy & Bacon LLP from Springfield who has spent the last eight years working on Chappell’s case free of charge. “As somebody from Delco who spent hundreds of hours on this case because I believe in it, I think these guys got a bad deal. They maintained their innocence and have been basically in prison for their entire adult lives.”
The District Attorney’s Office disagrees and says that many of the topics in the petition were already known during the trials at the start of the century.
The decisions now rest in the hands of Common Pleas Court Judge Mary Alice Brennan, who will hold a hearing this week on Post-Conviction Relief Act petitions to determine whether newly discovered DNA evidence would have changed the outcomes of their trials if it had been presented at the time of their convictions.
Bloody crime scene
Nickens’ daughter discovered her mother’s body on the floor between the living room and bedroom of her apartment about 2 p.m. Oct. 10, according to petitions filed by attorneys representing the three defendants.
The apartment was in disarray and the victim appeared to have been beaten about the face and head. There was a large amount of blood on her bed, floor and a nearby wall, and her underwear was found lying on the floor.
Dr. Dimitri Contostavlos, medical examiner for Delaware County at the time, concluded that Nickens died when the multiple blunt force injures she received, likely from a fist, aggravated her underlying lung and heart disease. He estimated her time of death was between 10 p.m. and 2 a.m.
Contostavlos also discovered a minor injury to the victim’s vagina and sperm in her rectum, occurring within 24 hours, though he was unable to determine if it was before or after her death.
Contostavlos testified at Grasty’s trial that there was no evidence of trauma to the anus or evidence the victim had been anally raped, though Nickens’ daughter was adamant that her mother, who lived alone, did not have a boyfriend.
Investigators additionally found a green jacket at the scene on top of a television that Nickens’ daughter said was not there when she had visited her mother the night before.
A baggie of cocaine and a chewed plastic straw were found inside a jacket pocket.
Tracking down leads
It was Chester Detective Todd Nuttall’s first murder investigation, having previously worked in narcotics.
Nuttall put feelers out in the community and was contacted by a woman he knew from his prior assignment, who claimed that she overheard McElwee, Chappell and Grasty discussing the murder.
Nuttall arrested McElwee on unrelated drug charges, then leaned on him for information about the murder. McElwee, described as having “significant intellectual disability” in Johnson’s petition, eventually gave up the other three suspects.
Nuttall also interviewed Nickens’ daughter, who claimed Grasty — boyfriend of Nickens’ daughter — had threatened her family the day before the murder. Nuttall also spoke to McElwee’s mother, who said Chappell told her on Oct. 10 that police were at Nickens’ home because “Sam (Grasty) had killed a lady.”
Police described the apartment as having been ransacked and there was evidence of a struggle.
The defendants’ petitions note Nickens’ apartment had been burglarized four days prior and that a latent print was lifted from a window believed to be the point of entry at that time.
Two men allegedly attempted to cash the victim’s social security check at a local deli in November 1997, but that lead had been dropped by the time the three defendants were arrested in 1999.
Questionable testimony
The defendants argue that much of the testimony presented at their trials was shaky, especially that of McElwee.
He claimed to have seen the other three men enter and exit through the rear door when evidence suggested the assailant left out the front, leaving it unlocked.
McElwee claimed the others stole $30 from the apartment while he stood on the corner. Grasty, Johnson and Chappell allegedly split the $30 among themselves and McElwee returned home about 10:30 p.m. empty handed.
Paul Casteleiro, legal director for the nonprofit Centurion in Princeton, New Jersey, and Grasty’s attorney, said McElwee never really got his story straight, however. Sometimes he saw the money, sometimes he didn’t, but he was certain that the crime began about 10 p.m., Casteleiro said.
McElwee’s mother testified that he returned home about 10:15 or 10:30 and did not leave for the rest of the night. But the victim’s daughter said she had been on the phone with Nickens at 10:55 p.m. that night and that they had hung up so that her mother could watch the 11 o’clock news.
Casteleiro said McElwee has since clammed up and refused to speak to attorneys representing the other defendants in their petitions.
One witness claimed to have seen Johnson wearing the green jacket the night of the murder, but later recanted, according to Casteleiro. Modern testing looking for “touch” DNA found no trace of any of the defendants on that item.
At least three other witnesses claimed to have overheard one or more defendants discussing the murder, but all of them — like McElwee — were facing charges of their own.
One had charges against him dismissed the morning he gave a statement to Nuttall and another had several open drug cases resolved under a single plea after providing his statement, according to Chappell’s petition.
“I think it’s a very obvious miscarriage of justice case that needs to be rectified,” said Casteleiro, who has been working on Grasty’s case for more than four years. “I think it’s clear from all the evidence in the case and the nature of the evidence that something really wrong happened here.”
DNA evidence
Nuttall had taken swabs of all three defendants — along with McElwee and several other people — in an effort to match them to the sperm found in the victim, but all were ruled out as contributors. No blood or semen was initially discovered on the jacket.
Investigators had also found several hairs, at least one fingerprint, and a shoe print, none of which were matched to the defendants. All of the blood at the scene was found to have come from the victim.
Each of the defendants had been offered plea deals similar to McElwee’s, but maintained their innocence and went to trial instead.
Chappell was the first to be tried and was convicted in September 2000.
Attorneys representing him now say nothing much was made of the jacket or DNA found in Nickens’ body at that time, except for a brief mention at closing arguments.
Former Deputy District Attorney Michael Galantino even acknowledged at that trial that the DNA evidence was a mystery, but said it was possible the defendants had planted that evidence or returned later with another, unknown person.
The new petitions note investigators initially treated the case as a sexual assault and murder, but were forced to pivot after the DNA evidence did not support that theory.
No one has ever been linked to the DNA found at the scene.
Grasty’s first trial ended in a hung jury, but he was convicted following a second jury trial in December 2000.
Before his bench trial in December 2001, Johnson requested additional DNA testing on the jacket. New, updated testing techniques at that time revealed another semen stain that was matched to the sperm found in Nickens’ body, but again excluded any of the three defendants.
New testing ordered
Grasty, Chappell and Johnson each filed numerous appeals following their respective convictions, all of which were denied, but the Delaware County District Attorney’s Office did agree to conduct new DNA testing in the case using modern techniques in April 2021.
Some testing was done on items recovered from the apartment the first time, including a towel, bedsheet and the victim’s underwear, as well as the straw found inside the jacket.
The jacket itself was also retested.
The Forensic Analytical Crime Lab in California issued a report in January 2022 that found DNA on the straw and the jacket was consistent with that of the sperm found in Nickens’ body; that blood was not on the jacket where it had previously been suspected; that semen from the unknown male was also found on the bedsheet; and that the defendants were again eliminated from contributing to any DNA found in the case, including new evidence found on Nickens’ underwear.
Seeking new trials
Attorneys representing the defendants intend to present testimony next week from forensic expert C. Alan Keel and Timothy Palmbach, a crime scene investigation expert, to explain the significance of the new tests.
Both have already opined in reports that the evidence is indicative of a sexual assault carried out by a single unknown person.
“The evidence is so strong as to their innocence, it’s kind of mind-boggling that they continue to oppose it, and they continue to oppose it based on the word, literally, of a 15-year-old that had diminished capacity and was an active drug user,” said Casteleiro. “I’ve been doing this for well over 40 years and this is as chilling a case as you’ll ever see, because it’s so flimsy and the evidence of innocence is so strong, and yet they continue to oppose it. It’s shocking.”
The DA’s rebuttal
Assistant District Attorney Sarah Vanore agreed in a reply brief to Chappell’s petition that the defendants are entitled to a hearing on the new DNA evidence by law, but disagreed that it would likely have changed any of the verdicts.
Vanore argued from the outset that only the DNA evidence should be addressed and that the petitioners cannot raise extraneous issues such as witness credibility due to a one-year time bar on post-conviction relief motions.
Even then, she said the new evidence does little to advance their cases, pointing out that two juries and a judge were already aware of the prior DNA evidence indicating another unknown male had — at the very least — had sex with the victim around the time of her death when they independently reached conclusions of guilt for all three men.
Those verdicts should not be upset simply because it is now known that there is more of the same kind of evidence that was already presented at the original trials, Vanore argued.
There is also nothing new in the evidence to demonstrate that this was a sexual assault, she added, or that the person who had sex with Nickens and left behind the green jacket was the same person who broke into her apartment and beat her.
“The post-conviction DNA evidence also does not demonstrate that ‘one man, and one man alone’ committed the murder — nor could it possibly ever prove such a thing,” Vanore wrote. “The fact that a person’s DNA is not found in a particular place does not … indicate that the person was never there.”
Vanore noted that investigators did not find DNA of the victim’s family members who visited her the night before her death either, and that it is entirely possible that even if Nickens was sexually assaulted and beaten by one unidentified person, that does not preclude others from also being present and leaving no trace that they were there.
The defense’s closing
But attorneys for the defendants argued Brennan must look at the totality of the evidence before her, including the questionable testimony of the “incentivized” witnesses and the plethora of DNA evidence pointing to a single, unknown attacker rather than a trio or quartet of suspects.
“I think the fact that there is multiple kinds of evidence all pointing to one crime and one perpetrator fundamentally changes the way the trial would have been conducted, the way defenses would have gone at trial and, I think, the jury verdict,” said Lyons.
“To me, it completely dispels that these guys were at the crime scene or had anything to do with the murder, because it all matches. You take it from implausible to something far beyond that. Not only did these guys plan to plant evidence, but they also previewed 20 years in advance what DNA testing was going to be today and made sure not to leave touch DNA behind and all these other things?”
The petitioners argue that the only standard to receive relief under the Post-Conviction Relief Act is that they prove it would have been “more likely than not” that exculpatory evidence not available at the time of trial would have changed the outcome.
But more than that, they claim the redundancy of the evidence cannot be ignored. In test after test — hair, DNA, blood, fingerprints and other evidentiary items — none of the three men currently serving time for Nickens’ murder could be linked to the crime by any physical evidence whatsoever, they say.
“It’s not our burden to prove that somebody else did it,” said David Haase, a Swarthmore attorney who has been working on Chappell’s case with Lyons for about a year, also pro bono. “The fact remains that this is a brutal sexual assault — rape, sodomy — and we have old DNA and new DNA that ties it to one particular person that was not one of the three convicted men that have been serving life sentences.”
The hearing is scheduled to begin at 9 a.m. Tuesday."
The entire story can be read at:
3-convicted-in-1997-delaware-county-murder-seeking-new-trials
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL
https://www.blogger.com/blog/post/edit/120008354894645705/47049136857587929
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.
Lawyer Radha Natarajan;
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
