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PASSAGE TWO OF THE DAY: “When we walked back in … it’s a completely different feeling in the room,” Smolen told The Frontier. “I was like ‘Did you guys find it?’” The item, a manilla envelope, had been found in a dry police storage facility located elsewhere in Tulsa. It wasn’t the rape kit, but it was something better. They had located slides containing biological evidence from the rape kit, material that had already been identified as containing semen. Months later, the sample was sent to a forensic testing laboratory in Virginia. The lab responded via email on April 13, 2023, saying the results excluded Jamerson as the source of the sample. Smolen told The Frontier he anticipated the test results would end the case, and Jamerson would finally have his sentence vacated. But prosecutors took a different approach. The Tulsa County District Attorney’s office response maintains that the DNA test results do not qualify as a reason to vacate Jamerson’s conviction. “The lack of Jamerson’s DNA from the latest round of testing does nothing for him,” a prosecutorial filing states. “It does not overcome a conclusive identification of him made by GD (Dubbs).”
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STORY: "DNA evidence casts doubt on Henry Jamerson's rape conviction after 24 years in prison. Prosecutors are fighting efforts to clear his name," by Reporters Dylan Goforth and Ziva Branstetter, published by The Oklahoma Frontier, on December 28, 2023. ("The Frontier has a mission to produce fearless, independent journalism with impact. We hold those in power accountable, give a voice to the powerless and tell stories that matter to Oklahomans. We’re tracking the impact of the stories we publish on this page.")
SUB-HEADING: "A new discovery follows years of claims that the evidence had been destroyed. The victim says doubts about the case always haunted
GIST: "Kayleen Dubbs was sitting in her car on a summer night in 1991, listening to the radio while waiting for her boyfriend to get off work.Two men approached Dubbs’ car and one held a gun, telling the second man to watch her while he went inside to rob the Tulsa diner where Dubbs and her boyfriend worked. Just 16 and newly pregnant, Dubbs told police she was terrified as the lookout man pulled her from the car, pressed what she thought was a stun gun to her neck and raped her behind a dumpster.
Minutes later, the robber emerged from the diner’s back door as Dubbs lay on the ground, pretending she fainted. Both men ran off into the darkness.
Whoever robbed the store that night, May 24, 1991, was never found. A Tulsa Police Department detective wrote that the robbery investigation “bogged down” and the file was turned over to the sex crimes unit.
Dubbs, the only witness who reported seeing the rapist, told police she thought she could describe her attacker.
By late July, police prepared a report for prosecutors alleging that William Henry Jamerson, a 22-year-old former busboy at the diner, Ma Bell’s, was the rape suspect. Jamerson was arrested, charged, tried and convicted in a whirlwind of three months.
Trial transcripts show prosecutors based their case on two pieces of evidence: testing on semen recovered during Dubbs’ sexual assault exam they said put Jamerson in a “narrow class” of people who could have been the rapist, as well as Dubbs’ supposed identification of Jamerson, including in a police photo lineup.
Advanced DNA testing wasn’t widely used in 1991, but a chemist testified during the trial that Jamerson was among the 20% of people who are “non-secretors,” meaning their blood type is not detectable in their semen. Police said tests done on the rape kit showed the semen belonged to a non-secretor. Jamerson’s attorney opted not to cross examine the chemist, telling jurors he feared the testimony would only confuse them.
Jamerson’s trial lasted only two days. His attorney, who lost his license to practice law in 1995 for “disciplinary reasons” according to the Oklahoma Bar Association, did not give an opening statement and did not call any witnesses. Jurors took about three hours to come back with a guilty verdict and Jamerson was sentenced to 34 years on three felony counts.
It was a verdict that Jamerson, who was 22 years old when he was sent to prison, has spent the last 30 years trying to undo.
For decades, he begged the Tulsa County District Attorney’s Office in letters and court motions to find and test the rape kit for DNA. Tulsa police said each time that the sexual assault examination evidence had been destroyed.
But those repeated claims by police, including under oath in a 2020 court hearing, were wrong. The evidence police insisted for more than two decades had been destroyed was instead found last year in a police property storage facility. Once that evidence was tested, Jamerson was excluded as being the source.
Jamerson spent nearly 24 years in prison before being released in 2015. He has to register as a sex offender until 2025. Jamerson’s long quest to clear his name is detailed in a 56-page petition filed in August by attorneys Dan Smolen and Allen Smallwood seeking to throw out his conviction.
Prosecutors are pushing back against Jamerson’s efforts. Dubbs described the rape as only taking place for a matter of minutes and never testified the assailant ejaculated, so the sample not belonging to Jamerson doesn’t exclude him from being the rapist, they say. Prosecutors also argue Dubbs’ alleged identification of Jamerson as her attacker in 1991 is still evidence of guilt.
Police records state Dubbs picked Jamerson out of a photo lineup. But now, Dubbs, who still lives in the area, told The Frontier she didn’t remember seeing a photo lineup. It was Tulsa Police, Dubbs said, who told her Jamerson was her rapist.
The Frontier does not identify victims of sexual violence without their consent. In multiple interviews, Dubbs consented to The Frontier publishing her name.
“I was 16, I was pregnant, I was scared … I just did what Vicki (Sousa, the prosecutor) told me,” Dubbs said. “I got on the stand and did what they said and answered the questions. It’s always bothered me.
“Things don’t add up to me. It’s been eating me alive ever since.”
Tulsa County District Attorney Steve Kunzweiler, as is his custom with an ongoing case, declined to be interviewed for the story. He also declined to view The Frontier’s recorded interviews with Dubbs.
After two decades in prison, Jamerson cuts a soft-spoken, humble profile. He said he’s worked to overcome the anger that filled him years ago at being accused and imprisoned for a crime he says he didn’t commit. He said he wants to clear his name while his mother, Donna, 81, is still alive.
“I kept fighting because I knew I didn’t do anything wrong,” Jamerson said.
Smolen notes Jamerson’s case didn’t happen in a vacuum. Police also repeatedly insisted DNA evidence had been destroyed in the case of Sedrick Courtney, convicted in 1995 of armed robbery after a woman was blindfolded and beaten during a break-in of her apartment in Tulsa.
She told police she believed it was Courtney who had attacked her. A Tulsa police laboratory analyst testified hair found at the scene was similar to Courtney’s. As in Jamerson’s case, it was too early for advanced DNA testing. Courtney was convicted based on the victim’s identification, including from a photo lineup, and testimony about the recovered hair.
The Innocence Project began requesting access to the DNA evidence from Courtney’s case in 2007, but Tulsa Police said the evidence had been destroyed. It was eventually located, and when tested, ruled out Courtney as the source. His conviction was overturned and he later won an $8 million settlement against the city of Tulsa for his wrongful conviction.
Oklahoma ranks 10th per capita in the country in overturned convictions with 45 since 1989, according to data provided by The National Registry of Exonerations. Sixteen of those wrongful convictions occurred in Tulsa, data shows.
Years of denials, then a surprising twist
In 1991, advanced DNA techniques now taken for granted in courtrooms were not widely used. Instead, prosecutors in his case relied on serology, the study of blood. At the time of Jamerson’s trial, DNA testing was in its infancy. So investigators would look within the semen to see if blood had been secreted, and then use that information to determine blood type.
Jamerson’s conviction rested on two things: Dubbs’ alleged identification of Jamerson and the serology results done on semen collected during her sexual assault examination. Trial transcripts show prosecutors told jurors the results of the tests couldn’t confirm Jamerson as the source, but they couldn’t rule him out, either.
During closing arguments, prosecutor Vicki Sousa told jurors the case was air-tight.
“In some cases you only have circumstantial evidence,” Sousa said. “And in other cases, you have just the eyewitness or victim’s testimony. Ladies and gentlemen, in this case, you have both.”
Reached by phone, Sousa declined to be interviewed by The Frontier.
As DNA testing became more prevalent and reliable, Jamerson pleaded from prison for someone to test the sample, convinced it would rule him out as a suspect. The Oklahoma Indigent Defense System, which provides legal services for people in the criminal justice system who can’t afford an attorney, even obtained a grant in the years after Jamerson’s conviction to test DNA in questionable convictions.
But no matter who asked for the sample, they were met with the same roadblock: The Tulsa Police Department claimed to have destroyed it.
In 2001, Jamerson asked lawyers for the Indigent Defense System to test the rape kit, but they informed him it was impossible.
“As you already know, the Tulsa Police Department destroyed whatever evidence they had in their possession,” Indigent Defense attorney Kathleen Smith wrote to Jamerson.
Jamerson wrote to Tulsa Court Clerk Sally Howe-Smith in 2002, asking her to check for evidence, but none was found.
The Indigent Defense System wrote to Jamerson in 2014 that the DNA Forensic Testing Program had been discontinued. But the letter gave Jamerson a lifeline, something that would connect him with the attorney who made a crucial breakthrough in his case.
“However,” wrote Indigent Defense investigator Kim Marks, “I found a document from the Tulsa Police Department’s legal advisor in which the status of the evidence in your case …(is) addressed.”
The document was a 2001 memo from the Tulsa Police Department’s legal advisor at the time, telling the Indigent Defense System that the rape kit Jamerson was seeking had been in an evidence building known as the Trenton Facility, but was destoyed via court order in 1995.
In 2016, one year after being released from prison, Jamerson traveled to Smolen’s office, holding a nearly 20-year-old story from the Tulsa World. Smolen, a civil rights attorney whose firm has a history of taking on law enforcement misconduct, immediately took an interest in Jamerson’s case.
In the 2001 news article, then-Tulsa Police Chief Ron Palmer told the paper evidence from 10 cases, including Jamerson’s, had not been destroyed, and in fact, remained in the department’s possession “untouched.”
The article stated two Indigent Defense attorneys were investigating the evidence, which was “held at a city facility at 105 N. Trenton Ave.”
Smolen said he had worked on other cases where supposedly destroyed or missing evidence had been found, so Jamerson’s assertion that his innocence could be proven if they could locate the DNA wasn’t outlandish. But it was mostly Jamerson’s patient and calm demeanor that drew Smolen in.
Over the next four years, Smolen would repeatedly ask for Tulsa Police to produce the rape kit, which he was convinced still existed. And for years, Tulsa Police would tell him it had been destroyed.
At least once, those assurances even conflicted with what Tulsa police said internally. A Tulsa police captain emailed city attorneys in 2016 that “this is 25 years old but I believe the items listed on the receipt may still be in the property room.”
Yet police continued to insist to Smolen that the rape kit and other evidence had been destroyed, including in an evidentiary court hearing in November 2020.
In 2022, after years of getting nowhere, Smolen convinced a judge to let him search for the evidence. But when he actually gained access to the Tulsa Police property room that summer, he faced a different problem – he had no idea how to find what he was looking for.
Closely watched by property room staffers and officers, Smolen spent hours that day looking for the rape kit and other evidence, growing increasingly disappointed as it appeared it was no longer there. Eventually he found a lead: The back of an original property receipt listing evidence retained in Jamerson’s case showed an as yet-unseen item identified as “fibers.”
By 3 p.m., having blown past lunch, Smolen was informed the people supervising his search needed to take an hour break. Smolen was buoyant, he said, having found a new lead for the first time in years. But the possibility existed that it would turn out to be another dead end.
“I was like, ‘this is going to give me the opportunity at least to go in front of a judge and argue I should be able to go back and look for more stuff,’” Smolen said.
When he returned to the property room, he said the vibe had shifted.
“When we walked back in … it’s a completely different feeling in the room,” Smolen told The Frontier. “I was like ‘Did you guys find it?’”
The item, a manilla envelope, had been found in a dry police storage facility located elsewhere in Tulsa. It wasn’t the rape kit, but it was something better. They had located slides containing biological evidence from the rape kit, material that had already been identified as containing semen.
Months later, the sample was sent to a forensic testing laboratory in Virginia. The lab responded via email on April 13, 2023, saying the results excluded Jamerson as the source of the sample.
Smolen told The Frontier he anticipated the test results would end the case, and Jamerson would finally have his sentence vacated. But prosecutors took a different approach.
The Tulsa County District Attorney’s office response maintains that the DNA test results do not qualify as a reason to vacate Jamerson’s conviction.
“The lack of Jamerson’s DNA from the latest round of testing does nothing for him,” a prosecutorial filing states. “It does not overcome a conclusive identification of him made by GD (Dubbs).”
‘A remarkable resemblance’
In an Oct. 31 response to Jamerson’s petition to vacate his conviction, prosecutors continued to maintain that Dubbs identified Jamerson as her attacker when she chose him from a photo lineup.
The Tulsa County District Attorney’s response states a detective presented Dubbs with a photo lineup and included a form with Dubbs’ signature saying she chose Jamerson’s photo from it. The evidence gathered by law enforcement, however, did not include a recording of Dubbs identifying Jamerson from a lineup or the actual photos from that lineup.
Dubbs testified during Jamerson’s trial that she viewed a photo lineup of five people and picked Jamerson out of the series of photos. She told the prosecutor she had no doubt Jamerson was her rapist.
But police records from the case show how detectives, not Dubbs, came up with Jamerson as their prime suspect before a photo lineup.
Because witnesses described the robber and rapist as Black men and there were suspicions the robbery could have been an inside job, a store manager, not present on the night of the crimes, gave police the names of three current and former restaurant employees who were Black, including Jamerson.
Though no witnesses had named Jamerson as a suspect and some named another man they thought was responsible, police nonetheless pulled Jamerson’s photo taken during an earlier encounter and added it to the case files on the Ma Bell’s rape and robbery.
Two months after the robbery, Det. David Witt was brought into the investigation to create a composite drawing of the rape suspect. The composite was created based on an interview with Dubbs, police records state.
“Witt … was not certified and had no formal training as a forensic artist. The drawing he created is not a forensic drawing,” Jamerson’s petition states.
According to police records, the robbery detective assigned to the case saw Witt’s drawing of the rape suspect and “noticed the resemblance of that composite to … a standard police mug shot of William Henry Jamerson.” The robbery detective, J. Hunter, shared the composite and photograph of Jamerson with Det. Deborah Daniels, who agreed there was a “remarkable resemblance” between the two, police records state.
Jamerson’s petition claims officers created the composite drawing, then informed Dubbs that it had allowed them to identify Jamerson as the attacker. “TPD never disclosed to the District Attorney’s Office that they – not Dubbs – had identified Jamerson as the assailant,” Jamerson’s petition claims.
During Jamerson’s trial, the state did not call either Hunter or Daniels – who investigated the case and were integral in identifying Jamerson – as witnesses to testify about that process. The state did enter a “stipulation” outlining that Daniels would, if called, testify about collecting bodily fluids from Jamerson after his arrest. Prosecutors now say they aren’t sure “why the State did not call” the detective responsible for the alleged photo line up, “or include anything about the photo lineup” in its stipulation about Daniels’ testimony.
In interviews with The Frontier, Dubbs said while she recalled helping Witt draw a composite sketch of her attacker’s face, she did not recall participating in a photo lineup.
“I don’t remember any lineup, I don’t think so, and I remember everything,” Dubbs said.
Dubbs said she had never met Jamerson and that she first heard his name from police. “They said they had … found the guy that they believe is the guy that did it and that his name was Jamerson,” she said.
She said she described what her attacker looked like to police, pointing to the composite drawn two months after the attack, and doesn’t know how police came up with his name.
“I gave them the face I saw and they’re the ones who later on was like ‘Oh this is who this is.’’’ Dubbs said police told her “his identity was a perfect match” with the composite sketch. “But they could be lying to me, I don’t know.”
‘No Negroid hairs so far!’
While police told Dubbs they had identified her attacker, some evidence pointed to another possible suspect. But records show that exculpatory information wasn’t turned over to Jamerson or his previous attorney before trial.
Tests from the Tulsa Police lab on Dubbs’ clothing from that night found numerous pubic hairs from a Caucasian person. Jamerson said those tests were among hundreds of pages of documents the prosecutor didn’t share with his attorney.
Despite finding no hairs from a Black assailant, records show prosecutors and police were clearly looking for them during their bid to tie Jamerson to the rape.
A Tulsa police crime lab examiner’s notes about tests on Dubbs’ clothing from that night state that Sousa called the examiner on Sept. 23, 1991 – about a month after Jamerson was arrested.
“She said that she needs to know if there are any negroid hairs in order to obtain known samples from the suspect!” the examiner’s notes state.
The next day, the examiner’s notes state: “No negroid hairs so far!”
In a sworn statement filed in the case, Sousa stated while she doesn’t have detailed memories, “it was my practice to provide defense counsel with all police reports in my possession as an (assistant district attorney) assigned to a case.”
The U.S. Supreme Court ruled in 1963 that the government’s failure to disclose evidence favorable to a criminal defendant and that could determine guilt or punishment is a violation of the 14th Amendment’s right to due process. Withholding evidence can be used to overturn convictions in some cases.
‘I kept fighting’
During the nearly 24 years he spent in Oklahoma prisons, Jamerson waged a lonely quest to prove his innocence. He spent most of his time in law libraries, writing appeals and letters to anyone who might help.
While those appeals were turned down, he struggled to rise above the everyday horrors of prison life. Jamerson saw the aftermath of a teen cellmate’s suicide by hanging and the fatal stabbing of a prison cafeteria worker. He was unable to grieve with his family after his father and brother died.
Yet through those years, he rejected multiple chances to win early release through parole, a process that would have required him to admit guilt in the case.
“I ain’t going to accept a crime that I didn’t do,” he said.
When freedom finally came in 2015, Jamerson said he remained determined to prove his innocence, even after serving out his time. He had to register as a sex offender, making it nearly impossible to find a steady job to support himself. He said he can find temporary employment, but it almost always ends as soon as his employers learn about his criminal past.
His memorabilia from days as a standout basketball player had been removed from a display at Central High School. If his conviction is vacated and he’s found legally innocent of the crime, he could be eligible for compensation from Oklahoma’s Wrongful Conviction Fund. But the payout is capped at $175,000 and it could take years to be compensated.
Most of all, Jamerson said he wants to prove his innocence and clear his name to make life easier for his mother, who never wavered in her support for him during her son’s two decades in prison.
“She always tells me ‘I’ll be glad to have this over with,’” he said.
Jamerson said he has worked for years to overcome his anger at how the case played out.
While watching Dubbs’ video interview with The Frontier, in which she expresses doubts about his conviction, Jamerson shook his head and exhaled.
“I didn’t lose no hope … I just stayed focused,” he said.
Dubbs said it’s important to remember that even if Jamerson’s conviction is vacated, she is also a victim in the case. She said she was a traumatized, pregnant teen who did what police and prosecutors told her to do.
“I feel like they put a story together … I’m not here to convict people that aren’t guilty. I was 16, I was pregnant. I was scared.” She said if she had been older and more confident to stand up for herself, the outcome might have been different.
“It’s a very emotional thing to sit there with a jury and (be) pregnant and being so young. And your parents are sitting there and … the lawyers are asking you, ‘If you could see his penis again could you identify it.’”
The possibility that she might have been wrong about who attacked her that night is deeply upsetting to her.
“I am damaged and still a victim. Now I get to live with the fact that my rapist wasn’t caught.""
The entire story can be read at:
| 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.
