Cover-ups should disqualify Denver’s DA from Moses-EL case

Denver District Attorney Mitch Morrissey’s office has withheld key evidence, twisted the facts and outright made stuff up to defend its wrongful conviction of Clarence Moses-EL, who spent 28 years behind bars for an attack to which another man has confessed.

Now, saying the office has “thwarted” Moses-EL’s “attempts to exonerate himself at every turn,” his defense lawyers are asking a judge to disqualify the office from the case and appoint a special prosecutor.

“Rather than admitting that it prosecuted and imprisoned an innocent man, the Denver District Attorney’s Office instead has engaged in a cover-up campaign by misstating the facts of this case to the legislature and the media,” reads a motion filed in Denver District Court on Moses-EL’s behalf.

The DA’s office won’t comment, saying it will file a response in court soon. That response wasn’t on file when The Colorado Independent last checked Friday.

Morrissey has been ordered to testify before Denver District Judge Kandace Gerdes later this month about the allegations that his office has withheld evidence and that he publicly misrepresented facts about the 1987 rape and burglary in Denver’s Five Points neighborhood for which Moses-EL spent 28 years in prison until Judge Gerdes released him earlier this winter.

Morrissey’s longtime spokeswoman, Lynn Kimbrough, also is scheduled to testify about misinformation she has given about the case.

Moses-EL, 60, was convicted and sentenced to 48 years for the attack that he said from day one he didn’t commit. The facts of the case back up his innocence claims. Among them:

• The victim named three other men – “LC, Earl and Darnell” — as her potential rapist immediately after her attack and before she named Moses-EL more than a day later. The first three men were not questioned as suspects.
• The only evidence linking Moses-EL to the case is that the victim said his identity came to her in a dream while she was sleeping.
• There’s no physical evidence tying Moses-EL to the attack. And all the evidence from the case has been destroyed by police. DNA testing wasn’t available when Moses-EL was tried and convicted in the late 1980s. Once it became accessible in the early 1990s, Moses-EL fought from prison to test the physical evidence so he could prove his innocence. A judge granted him a court order to have the rape kit, bed sheets and other pieces of evidence from the attack DNA tested – a process for which Moses-EL managed to raise $1,000, mostly from fellow prisoners. Denver police packaged the items in a box marked “DO NOT DESTROY.” But before the box was sent to the lab, they threw it in a dumpster.
• Moses-EL is a B secretor, meaning that B antigens would be found in any sample of his semen. Blood tests conducted before the evidence was trashed showed the semen found in the rape kit evidence didn’t contain B antigens.

Once the DNA was destroyed during his eighth year in prison, Moses-EL was left with no way to prove his innocence.

“Those were dark years,” he has told The Independent.

The case looked like it would take a turn in 2006, when Morrissey’s office announced that DNA from an unsolved 1992 Denver burglary and rape case – involving a 9-year-old girl and her mother – matched a man named LC Jackson. Given that Jackson was the first person the victim in the Moses-EL case named as her attacker, it seemed certain that Morrissey would question Jackson about the Moses-EL case. A district attorney’s duty, after all, is to seek the truth.

But Morrissey steadfastly refused to question Jackson, asserting – incorrectly – that the victim in the Moses-EL case never named Jackson as her rapist.

So Moses-EL sat in prison for another seven years with little hope of proving his innocence.

Then, in 2012, a letter arrived from Jackson, whom Moses-EL had met only in passing years earlier. “I have a lot on my heart,” Jackson wrote him. “Let’s start by bringing what was done in the dark into the light.”

He wanted to confess.

Instead of seeking to hear what Jackson had to say, Morrissey tried to silence him. After a few more years of opposition from the DA’s office, Moses-EL’s lawyers finally were able to schedule a hearing in which Jackson would testify.

Last July, Jackson took the stand and said under oath — several times, in several ways – that he had rough sex with the victim in Moses-EL’s case and beat her up in the exact place and time of the attack for which Moses-EL was convicted. Coming forward, he said, was his way of making things right with God.

Jackson’s girlfriend from 1987 — who lived two doors down from the victim — also testified this summer that Jackson had left the house at the time of the attack.

Also at the hearing, a University of Denver forensic scientist testified that it’s highly likely that someone with Jackson’s blood type was the attacker, and highly unlikely that it was someone with Moses-EL’s blood type.

Morrissey had fought, unsuccessfully, to keep all three witnesses from taking the stand. As a result of their testimonies, Judge Gerdes vacated Moses-EL’s convictions, granted him a new trial, and set him free on bond in December.

Moses-EL has been living with his wife in Commerce City, getting to know his children and grandchildren, and applying for jobs since his release. He’s studying for his driving test, which he hopes to take next week.

“Every day, every week, I’m taking more steps toward freedom in this big, new space out here,” he tells The Independent. “There’s a lot – a whole lot – of things to soak in.”

Big things, like managing his time, financial responsibilities and relationships in a world that’s much faster, busier and more expensive than it was when he was arrested in 1987. And little things, like figuring out how to use a smart phone and why people are always hankering for fancy coffee and this stuff called ‘frozen yogurt.’

Moses-EL is intent on rebuilding his life, even though Morrissey is posturing to re-try him this May.

But anything could happen if the judge agrees with the defense that the Denver DA’s Office should be replaced by a special prosecutor from another jurisdiction.  Two candidates for Morrissey’s job — Michael Carrigan and Beth McCann — have told The Independent that, if elected, they would drop the charges against Moses-EL. 

Morrissey worked in the Denver DA’s office in 1987, which was nearly 18 years before he was elected to lead it. He wasn’t personally involved in prosecuting Moses-EL, but has said, at the time, he managed the lawyers who did and he was familiar with the case.

Morrissey was elected in 2004 to replace his former boss, Bill Ritter, who went on to become a one-term governor. Morrissey defines himself largely by his work prosecuting crimes with genetic fingerprinting. “He is nationally known for his expertise in DNA technology, applying that technology in criminal prosecutions and working to ensure that DNA science is admissible in our courtrooms,” reads the first paragraph of his bio on his web page.

Given the importance Morrissey purportedly puts on DNA evidence, his take on the destruction of DNA evidence in Moses-EL’s case – basically, “tough luck” — was surprising.

Moses-EL’s legal team is arguing Morrissey’s office should be disqualified from the case because, among other reasons, it suppressed evidence. Their motion argues that the DA was out of line to not have handed over information about the 1992 rape for which his office nailed LC Jackson on a cold-case hit, especially when that case had so many similarities to the Moses-EL case. Among those similarities:

• The victim in the Moses-EL case lived two doors from his then-girlfriend, with whom Jackson was staying. The victims in the 1992 case lived in the same housing complex as Jackson’s girlfriend at the time. In both cases, Jackson was familiar with the floor plans. 
• In both cases, Jackson knew the adult victims and was aware they were living with their children and without men in their homes.
• The perpetrator in the Moses-EL case entered through a window; Jackson entered the home in the 1992 case through a window.
• Both attacks happened in the middle of the night – at about 2:30 am.
• The perpetrator in the Moses-EL case raped the victim while her infant and toddler were in the same room; Jackson raped the 9-year-old victim in the 1992 case while her two-year-old sibling was in the room.
• The perpetrator in the Moses-EL case told the victim to “shut up” after she expressed concern about her children; Jackson told his adult victim to “shut up” when she voiced similar concerns about her kids.
• The perpetrator in the Moses-EL case used a “do-rag” to cover the victim’s face while raping her; Jackson used a pillowcase to cover the face of his adult victim in the 1992 case.
• The perpetrator in the Moses-EL case choked and squeezed the victim’s neck during the attack; Jackson applied pressure to the necks of his victims in the 1992 rapes.
• Victims in both attacks sustained physical injuries to their heads.

Morrissey’s office was well aware that, for years, Moses-EL was trying to prove his innocence. Both the U.S. and state constitutions prohibit government from suppressing evidence that’s favorable to a person accused of a crime. Prosecutors have a legal duty to disclose that evidence even after a conviction.

“…The Denver District Attorney failed to disclose this information to Mr. Moses-EL for nearly a decade…,” reads the motion to disqualify Morrissey. “The Denver District Attorney’s office cannot be trusted to fulfill its ongoing duties to disclose favorable evidence to Mr. Moses-EL in connection with the upcoming new trial.”

Morrissey’s office – which as of this posting hasn’t responded to allegations that it withheld evidence about Jackson’s 1992 rapes of the mother and daughter – has filed its own motion to prevent that evidence from being brought forth at Moses-EL’s trial. As prosecutors apparently see it, the long list of striking similarities between the two attacks isn’t relevant.

What’s more, Morrissey’s office “submit(s) that there is no ‘signature’ evidence that would support that Mr. Jackson was involved in the rape” for which Moses-EL served 28 years, reads the prosecution’s motion, which was filed in February. 

You’ve got that right: The fact that Jackson repeatedly has confessed to having rough sex and slugging the victim in Moses-EL’s case at the same place and time she said she was attacked doesn’t, in Morrissey’s book, rise the level of “signature” evidence. 

Aside from withholding and trying to suppress evidence in Moses-EL’s case, Morrissey has told years of mistruths and outright lies.

They started immediately after The Denver Post published articles (reported and written by this reporter) as part of a 2007 investigative project about the loss and destruction of DNA evidences. Out of dozens of stories from across the country, Moses-EL’s led the week-long series partly because police throwing out a box of DNA evidence marked “DO NOT DESTROY” was so extreme, and partly because his innocence case was so compelling.

Because of Morrissey’s national reputation as a champion of DNA evidence, he bristled that doubts were being cast on his office and its handling of a wrongful conviction case in which officials trashed the DNA.

After reading the article, more than a dozen state lawmakers representing Denver wrote Morrissey in 2008 expressing concerns that Moses-EL may have been wrongfully convicted. They pointed out, correctly, that the victim in his case had named three other men as her rapist before she named Moses-EL.

Morrissey wrote back to the lawmakers, asserting that “The victim in this case did not name ‘three other suspects’ before identifying her attacker.”

“A review of the trial transcripts and police reports shows that that victim, who had been badly beaten, repeatedly said the names of three men she and her sister had been with earlier in the evening. Even the victim’s sister – to whom she mentioned the name – did not take her to be saying who raped her. Indeed, there was only one assailant, and yet when the victim mentioned these acquaintances she said all three names at once. This issue was brought up in full detail during testimony in the trial,” Morrissey wrote.

Contrary to what Morrissey claimed, the victim testified at the preliminary hearing that on the night she was attacked, she identified three men – “LC, Earl and Darnell,” in that order — as suspects. And at trial, she testified that she initially identified the same three men to the police right after the assault. The victim’s sister also testified that on the night of the attack she asked the victim who had done this to her and the victim named the other three men.

In 2008, then Senate President Ken Gordon proposed a bill that was inspired by Moses-EL’s case. Gordon – who died in 2013 – had been struck by Moses-EL’s lack of legal options after police trashed the DNA evidence he needed to prove his innocence. Gordon’s measure would have required a court to grant a new trial in rare cases in which biological evidence is destroyed in defiance of court orders to test it for DNA.

Morrissey didn’t let the truth get in the way of his opposition to the bill.

When trying to persuade members of the Senate Judiciary Committee to reject the measure in March 2008, Morrissey falsely claimed that the victim identified Moses-EL as her rapist immediately after her attack. This assertion was flat-out wrong, as is clear from police records and transcripts of Moses-EL’s trial – documents that had been provided to Morrissey months before his Senate testimony. Those records show that the victim first named the other three men – including Jackson – when asked who attacked her. The victim named Moses-EL more than a day later, while in the hospital.

In April 2008, Morrissey testified against the bill before the House Judiciary Committee, saying that Moses-EL’s efforts to prove his innocence were re-traumatizing the victim. Dubbing Gordon’s law the “Re-victimization Bill of 2008,” he defended his record and that of the DA’s office, asserting, as the motion to disqualify him notes, that Moses-EL’s case had been misrepresented by the media, the Senate and “throughout the halls of this building.”

With help from his fellow district attorneys – who repeated Morrissey’s misinformation about the case — Morrissey managed to kill Gordon’s bill, leaving Moses-EL stuck in prison for seven more years.

Morrissey’s mistruths continued last year as Judge Gerdes – a former prosecutor who used to work for him– was considering new evidence. And his lies didn’t stop when Gerdes ruled in December to vacate Moses-EL’s convictions.

On December 18, 2015, after the judge had made her decision, Kimbrough, Morrissey’s spokeswoman, issued a statement twisting the facts about the victim’s identification of Moses-EL.

“Those who now argue that he was convicted based solely on a dream are either unaware of the complete facts or disregard them. The victim was severely beaten, suffered multiple facial fractures, and was in a coma. It took some time after the attack before the victim was able to give her statement,” Morrissey’s press release read.

The statement not only contradicts Morrissey’s earlier assertion that the victim named Moses-EL immediately after being assaulted, but is also blatantly untrue. There’s no evidence the victim was in a coma after being assaulted.

“To the contrary, many trial witnesses testified that they had spoken with the victim after the attack and at the hospital. A police officer interviewed the victim immediately after the attack. He testified that the victim was able to speak to him and provide details,” reads the motion to disqualify Morrissey.

What’s more, the victim herself testified at trial that she went to her sister’s house after her attack and before she was taken to the hospital. The emergency room report shows she was conscious and able to describe her injuries to a doctor. And the ER doctor and the victim’s sister both testified at trial that she was conscious.

“The District Attorney’s factual misstatements have been repeatedly reported by the media and are highly inappropriate,” reads the motion to oust him from the case.

Morrissey’s press release also twisted other facts through flagrant omissions. It asserted there was no new evidence in Moses-EL’s case.

“What was presented as new evidence, resulting in the Court’s decision to grant a new trial, was a confession that was not true and was retracted,” it read. “In his statement to the District Attorneys investigator, (Jackson) admitted he had lied and made the confession up.”

What the press release left out – and reporters didn’t bother asking – was why Jackson signed a statement recanting his confession in the days before the hearing. The investigator Morrissey sent to interview Jackson in prison introduced himself by explaining that he had previously worked for the Denver Police Department and had arrested Jackson on a burglary case for which Jackson was convicted and served eight years in prison. Jackson later testified at the hearing that he had recanted only because he felt intimidated by the investigator to do so. He went on to testify that he had, in fact, attacked the victim in the Moses-EL case.

Moses-EL’s lawyers are arguing that Morrissey’s “misleading account” – which was repeated for weeks by print and TV reporters – “left the general public with the wrong impression that Mr. Jackson recanted his confession at the evidentiary hearing before this court.” 

They point out that, by prosecuting Moses-EL rather than Jackson all those years ago, the District Attorney’s office allowed Jackson “to remain free on the streets of Denver to commit additional violent crimes, including the 1992 sexual assaults and burglary for which he was successfully prosecuted by this same Denver District Attorney’s office in 2006.” Morrissey has a “personal interest” in prosecuting Moses-EL because he has a “vested interest in persuading the legislators, the media and the public” that his office and police didn’t wrongfully convict an innocent man or let a rapist walk free to rape others, the motion argues.

When it comes to Moses-EL’s case, Morrissey has long been out of line. He not only let an innocent man sit for years in prison — ignoring and actively suppressing new evidence — but also bullied lawmakers and all too many members of the media with years of lies and cover-ups. It’s his job to seek justice, not to protect his reputation at all costs.

When asked in 2007 if he could put himself in Moses-EL’s shoes, Morrissey answered “No. I’ve never raped anybody.” Yet his conduct on this case is its own kind of foul violation. 

“This thing smells worse than a feedlot. Mitch Morrissey is obsessed with this case. He’s so committed to covering up years of missteps that it’s almost like a personal vendetta for him,” says attorney David Wymore, who defended Tim Masters in fighting his wrongful murder conviction.

Masters went on to win nearly $10 million in his civil rights suit against the officials who wrongfully arrested and prosecuted him.

The longer Morrissey drags on his win-at-all-costs approach with Moses-EL, the more he puts taxpayers at risk for paying out in a civil suit for 28 years of wrongful imprisonment.

Nina Morrison, senior staff attorney for the Innocence Project, says for the public to trust the judicial system, it’s crucial that prosecutors recuse themselves in cases where there’s alleged misconduct.

“Most prosecutors understand the law and work hard every day to fully apply it,” she says. “But there’s a small minority of prosecutors who have been found to have deliberately withheld evidence or not told the truth. Because of that small minority, there’s a growing trend nationwide to take a hard look at serious prosecutorial misconduct. We’re focusing on this issue and the public is starting to stand up and take notice.”

Added Wymore: “It doesn’t take a legal genius to see Morrissey should have recused himself from this long ago. That would have been the high road. But, instead, he’s taking the road lower and lower. It’s the road into the bog and Mitch is fighting with mud.”

Photo credit: Jeffrey Beall, Creative Commons, Flickr.