GREENE: Jury finds Clarence Moses-EL not guilty

Update to “update”: Susan Greene is working on a post-mortem of the Moses-EL case.

Update: Nearly three decades after going to prison for a rape he said he didn’t commit, Clarence Moses-EL walked out of Denver’s Lindsey-Flanigan Courthouse a free man. A jury of eight women and four men found Moses-EL not guilty on all three charges in the case.  Judge Kandace Gerdes read the verdict at 1:23 pm Monday, ending a retrial pursued by outgoing Denver District Attorney Mitch Morrissey.

(Video originally published by The Denver Post, 2007)

This is the story of an August night in 1987.

It’s about a brutal rape, the gauzy lines between dreams and memory, and the web of distortions Denver law enforcement has been willing to weave in the name of victim advocacy. It’s about DNA evidence tossed in a dumpster and a man freed after 28 years in prison only to be re-tried again by a district attorney who’s ignoring the confession of another man, the first person the victim named as her assailant. And it’s about a new trial in which the jurors haven’t been allowed to hear some of the most basic facts, including that the defendant whose freedom they control already has spent nearly half his life behind bars for the same, sick case.

The setting: A housing project in Denver’s Five Points neighborhood.

The plot: A woman drinks a six-pack – or maybe one can less or two or three cans more – with friends before falling asleep at her home in the middle of the night. She wakes soon after to something choking her in the darkness. A fist punches her face. She is raped from the back and from the front by a man she says she couldn’t see but later claims she could because, somehow, her memory is sharper almost three decades later.

The characters: The victim identifies three men as her possible assailants. None – including the first man, now a known rapist – is questioned as a suspect because the identity of a fourth man, she says, came to her later in a dream.

That dream identification, this nightmare, the victim’s blurring of memory and prosecution’s bending of facts, its effort to win at all costs regardless of reason, regardless of doubt, unfolded before a jury last week in room 5B of Denver District Court.

In the name of the victim, the Denver District Attorney’s office spent four days straining to justify the nearly three decades it has messed with an innocent man. The name of that man is Clarence Moses-EL.

His innocence, it seems, wasn’t presumed 29 years ago when authorities prosecuted him merely on the victim’s dream statement. Nor a year later when he was convicted on that dream and sentenced to 48 years in prison. Nor years after that when authorities fought against letting Moses-EL test the DNA evidence. Nor two years after that, when they refused to grant him a new trial after throwing the DNA in a dumpster. Nor a decade later when they wouldn’t reopen Moses-EL’s case even though they were prosecuting the first man the victim named in her outcry for raping a girl and her mom in a similar fashion. Nor nine years after that when the DA’s office tried, but failed, to keep that rapist from confessing in court. Nor since December of last year when a judge finally vacated Moses-EL’s convictions.

That’s how Moses-EL landed back in court last week, with DA Mitch Morrissey hell-bent on re-trying the case and throwing him back behind bars before leaving office in January.

And it’s how it happened that, at the end of her closing arguments Thursday, Morrissey’s chief deputy embraced the victim’s daughter in the courtroom with a look of pained regret.

“Well, we may not win,” she told her. “But we gave it a good try.”

*   *   *

The trial started Monday afternoon after 12 jurors and two alternates were picked from a pool of 150. None is black like Moses-EL, even though African Americans make up more than 10 percent of Denver’s population.

The defense objected that this isn’t a jury of Moses-EL’s peers. The prosecution argued “there’s no evidence showing that there’s a systematic exclusion” of black jurors. Denver District Judge Kandace Gerdes ruled “the procedure was properly followed.”

Gerdes’ appointment to the bench came after years as a top prosecutor in Morrissey’s DA office. Her ruling about the jury’s racial make-up was just one in a months-long string of decisions she has made almost exclusively in favor of the prosecution. When the jury isn’t present, she uses one tone of voice for Deputy District Attorney Bonnie Benedetti, her former longtime colleague in the DA’s office, and another for the lawyers representing Moses-EL. After multiple hearings on his case and four days of trial, she has barely bothered to look at the defendant.

Both sides laid out the facts for the jury.

The victim — whose name The Colorado Independent is not using — lived in a housing project in Denver’s Five Points neighborhood that since has been torn down. In the summer of 1987 she had been feuding with a neighbor named Stephanie Burke who accused the victim of burning Burke’s 3-year-old son with a cigarette. The victim, in turn, accused Burke’s son of hitting the victim’s 2-year-old son with a rock.

The victim is small— 4’11’’ and 98 lbs. On the evening in question, she drank five to eight cans of Schlitz Malt Liquor Bulls without having much to eat. She was drinking with a group of friends at her best friend’s house. Then she returned home where her toddler son and baby daughter were sleeping, alone, in the living room. She threw up, cleaned up, then fell asleep on the couch with her baby.

She woke soon after with a do-rag around her neck, choking her. The man holding it then pummeled her so hard in the face that she permanently lost partial use of one eye. In the dark, he raped her anally, then dragged her upstairs and raped her vaginally. Out of self-defense, she said, she pretended to fall asleep when he was done.

The assailant left and the victim put on a robe, then walked a few doors down to the home of her best friend, who didn’t answer her door. The victim walked a block or two to the home of her sister, Denise Cousins, whom at first didn’t recognize her because her facial wounds were so severe.

For last week’s trial, the prosecution flew from Louisiana a witness named Floyd Howard who was living with Cousins in 1987. He testified that the victim named “Bubbles” — Moses-EL’s nickname at the time — when they asked who attacked her.

But there were holes Howard’s testimony. Big ones.

He didn’t recall Cousins’ last name, even though he had lived with her for a year. He said he was drinking heavily and likely shooting cocaine (if not also heroin and crack) on the night in question. He didn’t mention anything about “Bubbles” when questioned in 1987 and again in 2007 about his memory of that night. Even more problematic is that, when interviewed by a defense investigator earlier this year, Howard rated his memory of the night as “1 out of 10,” yet testified last week that it’s now a vivid “10 out of 10.” His sudden improvement in memory, he testified, came from “the universe.”

Police arrived at Cousins’ house shortly after attack and asked her sister who raped her. The police report shows the victim said “LC, Earl or Darnell,” three of the men with whom she had been drinking at her friend’s house earlier that night. She made the same identification later, again, to her sister at the hospital. And she confirmed at subsequent court hearings that she had named each of those three men as a possible attacker.

Doctors at Denver Health Medical Center tended to the six broken bones in the victim’s face and worked up a “rape kit” by swabbing her body. She then was sedated and slept for about a day. A day and a half after her assault, she spoke with her sister by phone and said her assailant’s identity, Bubbles, had come to her in a dream while she had been sleeping. The victim had told doctors she has premonitions and visions that come true.

Her dream statement was the only evidence against Moses-EL in 1988 when he was tried, convicted and sentenced to 48 years in prison. He spent decades appealing his sex assault and burglary convictions, which Judge Gerdes lifted in December after new evidence — detailed below — came to light.

Trying to buoy the credibility of the victim’s dream statement, the prosecution last week called Dr. Sara Mednick of the University of California-Riverside’s psychology department as an expert on sleep and memory. Mednick is the author of a book called Take a Nap! Change Your Life. She testified that sleep helps with remembering emotional events.

In cross examination, defense attorney Eric Klein asked about one of Mednick’s published works in which she wrote that “Dreams are fanciful. They incorporate strange ideas that you would never incorporate in real life.” When asked about that assertion, she testified, “I don’t know if I would say that.”

The defense called Dr. Daniel Reisberg, a memory expert from Reed College, to testify. He said some people – especially those like the victim who believe in their premonitions and visions – mistake their dreams for reality. He called the victim’s dream statement unreliable, especially as criminal evidence, and said the witness identification in this case was one of the weakest he has ever seen.

“There’s a very high danger that it might be wrong,” he testified. “I would never dream of relying on it.”

The victim, now 53, took the stand Tuesday and said although she had been drinking on an empty stomach and threw up before her attack, she wasn’t drunk enough to have impaired her memory of it. At the prompting of prosecution, she downplayed the dream that was the main evidence against Moses-EL at his first trial in 1988. This time, she said she got a look at her assailant when he briefly flipped on the bedroom light to put on his shoes.

“I seen Bubbles,” she said.

Police found no fingerprint evidence from the light switch. And, more importantly, the victim had told police and repeatedly testified in court in 1987 and 1988 that she hadn’t seen her attacker’s face because her house was dark throughout the ordeal.

The victim is nearsighted and had said that she was “blind” without her glasses. Because her glasses were off and she was brutally punched in the face, she had no vision in one eye and at best weak vision in the other which, by her admission, she cracked open only slightly to catch a glimpse at her assailant when, she now says, he switched on the light.

She said she had met Bubbles — Moses-EL — in the housing project when he had asked if she’d buy some shampoo and lotion he was selling. At that point, she said, she called him “ugly.”

She knew Moses-EL mainly as the husband of Stephanie Burke, the neighbor with whom the victim had been fighting about their sons. Burke testified that she had beaten up the victim shortly before the night the victim was raped. The victim reported the fight to the landlord to get Burke evicted.

“She had bad feelings against me,” the victim testified.

The defense’s cross-examination of the victim was one of the most compelling points in the trial

Attorney Gail Johnson asked if she remembers telling police that she didn’t get a good look at her assailant because the lights were out. The victim said she didn’t’ remember.

Johnson asked about a hearing transcript in which the victim testified that her assailant had “slicked back wavy hair” with lots of grease like LC and Earl Jackson, two of the men she named in her outcry. “Well, if it’s on there. But I didn’t say that,” the victim answered.

Moses-EL’s hair was cut so short in 1987 that he was practically bald.

Johnson then called the victim’s attention to a part of a transcript from two months after the attack showing the victim’s sister asked her “who did this to you?” The victim answered, “LC, Earl, Darnell.”

“Did you say this?” Johnson asked.

“No,” the victim said.

Johnson pointed to a transcript of another hearing, again showing the victim’s sister and best friend had asked who raped her. She named “LC, Earl, Darnell.”

“You identified LC Jackson as your attacker the night you went to the hospital,” Johnson said.

“No, I did not,” the victim said. “I never said that LC, Earl or Darnell attacked me.”

“You see the transcript,” Johnson continued. “It says the words, but they’re not correct?”

“I don’t remember saying that,” the victim said.

Johnson: “Ms. [victim’s name], you said that under oath, right?”

Victim: “I don’t remember.”

Johnson moved on, asking, “Would it be true to say that at some point you had a dream and you relived it?”

“Right,” the victim answered.

“And that’s when you realized it was Clarence?” Johnson asked.

“Right.”

The victim tweaked her story when questioned by the prosecutor. She said she realized Moses-EL was her attacker not after her dream in the hospital, but a day and a half earlier in her bedroom when her assailant briefly turned on the light.

“I knew it before, but it wouldn’t come out,” she testified.

Benedetti asked if the victim knew LC Jackson at the time of her attack. The victim said yes, that Jackson was her best friend’s boyfriend.

“Did he assault you?” Benedetti asked.

“No.”

Jackson, 50, is relevant to the case not only because he was the first man the victim named as her assailant, but also because in 2006, through a hit on a DNA database, the Denver DA’s office nailed him on the 1993 cold case rape of a woman and her 9-year-old daughter at knifepoint. Their assaults took place about a mile from the attack in the Moses-EL case and in ways that bore many similarities.

In 2006, Morrissey refused to re-open Moses-EL’s case in light of Jackson’s involvement in the other sex assaults. Morrissey kept asserting, despite many records to the contrary, that the victim in Moses-EL’s case had never named Jackson as her assailant.

Before last week’s re-trial, Judge Gerdes ruled that jurors shouldn’t hear anything about the 1993 attacks, including a long list of similarities between them and the case they were hearing. Yet jurors did hear that Jackson is serving 135 years for a sex offense. And that from prison in 2012, he wrote Moses-EL a letter.

“I don’t really know what to say to you, but let’s start by bringing what was done in the dark into the light. I have a lot on my heart,” Jackson wrote. “I don’t know who (sic) working on this, but have them come up and see me. It’s time.”

Jackson told Moses-EL’s lawyers that he had rough, consensual sex with the victim and beat her up at the same place and time she said Moses-EL raped her. The DA’s office spent years unsuccessfully trying to keep Jackson from testifying in court. Under a ruling by Judge Gerdes, he finally took the stand in July 2015 and confessed to assaulting the victim. His testimony, among other new evidence, led the judge to vacate Moses-EL’s convictions and set him free from prison last December after 28 years.

Authorities brought Jackson from Arkansas Valley Correctional Facility to Denver to testify at last week’s trial. But he took the 5th to avoid self-incrimination.

In his absence, defense lawyers role-played a transcript from his July 2015 testimony. Under oath, Jackson said he had rough, consensual sex with the victim that night in 1987 in a position he found “nasty.” And he admitted that he got angry and lashed out in what he described as a “Dr.-Jekyll-and-Mr.-Hyde” burst of rage.

“I don’t think she really knew who done it,” Jackson said of the victim.

Having let Moses-EL serve so much time for his crime, Jackson said on the stand, had long weighed on his conscience. He told the judge that his mind went “back and forth and back and forth and back and forth” about whether to come forward. “It was hard for me to stand up,” he said. “I guess I was being selfish.”

Jackson likened himself to a scorpion that can’t change its violent nature. Confessing, he explained, was his way to enter “the kingdom of heaven.” “I want to just clear up a lot of things in my life,” he testified. “I just think this is the way I can relieve myself and not carry all this with me.”

Benedetti downplayed Jackson’s testimony to jurors, saying “Mr. Jackson has nothing to do with this case” and that he “will say whatever anybody wants him to say.” To advance that assertion, she called DA’s office investigator Jeff Carroll to the stand. Carroll – who happens to have been the police detective on a burglary case that landed Jackson in prison for many years – has helped Benedetti interview Jackson. He said Jackson told them he wasn’t at the victim’s house the night of her attack and never had sex with her.

“Did Mr. Jackson say he was more than willing to tell a few lies to help a friend,” Benedetti asked him.

“Yes,” Carroll said.

(Moses-EL and Jackson met briefly in the Denver jail in the late 1980s after Moses-EL was arrested. Despite the DA’s assertion, they’re not friends.)

When cross-examined by the defense, Carroll testified that Jackson said in a January 2016 interview that he was at the home of his girlfriend, Pamela Sanders, the entire night in question. But Sanders testified last week that Jackson left her home a few doors down from the victim for about 30 minutes that coincided with the attack.

Much of the trial focused on scientists.

Dr. Kathren Brown Dressel, the now-retired Denver Crime Lab forensic serologist who had tested evidence from the 1987 rape kit, testified that Moses-EL is what’s known as a B secretor. She found no B antigens on the swabs. Yet, using very conservative statistical standards, she wouldn’t eliminate Moses-EL as the perpetrator because she said she couldn’t tell if male antigens were present in a high enough concentration to be detectable separately from the victim’s antigens. In other words, she said, the female antigens traces may have masked the male blood type. So, she added, she could not exclude any male on earth from the sample.

Dressel’s conclusions were called into question by another forensic serologist, Dr. Robert Lantz, founder and director of Rocky Mountain Instrumental Laboratories in Fort Collins. He said Moses-EL is a “strong secretor,” meaning he’s genetically predisposed to secrete high levels of his blood antigen into his semen. That makes the “masking” that Dressel feared highly unlikely, he testified.

Defense attorney Klein asked if Moses-EL should be excluded as a contributor to the rape kit swabs.

“Yes. To a very large extent,” Lantz said.

Although he “couldn’t absolutely exclude” Moses-EL or any man from the sample, he said it’s extremely improbable, statistically, that Moses-EL was the assailant.

“We have to deal with the real world,” said Lantz, who’s still working well into retirement age. “I could play for the Broncos, but it’s not likely.”

Another defense witness, University of Denver forensic biology Professor Philip Danielson, also debunked parts of Dressel’s testimony. Based on analysis methods that are newer than Dressel’s, he testified that “there’s no indication of masking of male blood type in this case.” What that means statistically, he said, is that it’s highly unlikely the semen sample bore Moses-EL’s B blood type and highly likely the assailant was type O.

Jackson has type O blood.

DNA testing would, of course, have settled the question of the rapist’s identity. That’s why, from prison in the 1990s, Moses-EL – who maintained his innocence from the day of his arrest – raised $1,000 and won two court orders to have the rape kit swabs, bed sheets and other physical evidence tested for genetic fingerprinting. In 1995, Denver Police packaged those items in a box they marked “DO NOT DESTROY.” And then, before it could be sent to the DNA lab, they tossed it in a dumpster.

Judge Gerdes ruled that the jury shouldn’t hear evidence about events that took place after the original trial in 1988. So jurors weren’t told that there had been DNA evidence and that police trashed it. Without knowing that Moses-EL already served 28 years in prison on this case, they’re presumably wondering why he’s being tried nearly three decades later. They weren’t allowed to hear that the lead police detective, before his death, said in a sworn statement that he always had reservations about the case and suggested that the victim may have identified Moses-EL because of a personal vendetta against his wife. Judge Gerdes also wouldn’t let jurors hear about Jackson’s long list of known and suspected involvement in other sex assaults or about the many ways Denver police botched the investigation.

On Moses-EL’s behalf, Johnson argued with the judge’s decisions to exclude so much evidence that could exonerate him. “We should not be pursuing a fiction and hiding truthful evidence from the jury,” she told Gerdes. “It’s unimaginable that the court will be ruling that” the jury can’t hear how police “let an innocent man go to prison and allow a serial rapist to rape and rape again.”

The judge denied her objections.

Moses-EL didn’t take the stand in his four-day re-trial, which the prosecution ended by asking the jury to “return a guilty verdict” and “hold him accountable.” The defense pointed out that it’s not its job to prove LC Jackson was the assailant, but simply to raise reasonable doubts about Moses-EL’s involvement in a case that pivots on a dream.

“That dream has turned into Mr. Moses’s 29-year-old nightmare. It’s time for it to end. And it’s time for it to end now,” Klein said, calling what happened to the victim “a tragedy.”

“It’s also a tragedy to convict an innocent man,” he added. “Tragedy upon tragedy— that’s not justice. It’s the definition of injustice.”

Closing arguments ended late Thursday afternoon and the courthouse was closed Friday for Veterans Day. The jury will reconvene this morning to deliberate.

Beth McCann, the state representative elected last week to replace Morrissey when he’s term-limited out of office in January, has said she would have dropped the charges against Moses-EL and let him move on with his life. She said she’s especially frustrated that police trashed all the DNA evidence.

For his part, Morrissey has defended authorities’ mishandling of the DNA and twisted the facts about the case to news media and state lawmakers. He has stayed mum about his decision to re-try Moses-EL after Jackson confessed and Jackson’s ex-girlfriend said he slipped out of her house at the time of the attack.

It was a flimsy case, as Benedetti seemed to acknowledge when she was overheard after court Thursday telling the victim’s daughter that she may not win but gave it her best shot.

Her comment begs the question of why the DA’s office – which repeatedly, especially in cases of excessive force by uniformed officers, has said it doesn’t prosecute unwinnable cases – dug in so hard.

And it begs the question of why the office fought so long to suppress Jackson’s confession and keep new evidence from coming to light.

It raises questions about why a district attorney who has distinguished himself nationally as a champion of DNA evidence has, two months before leaving office, risked his legacy on a case in which police threw out all the DNA.

And it raises questions about why an elected official who ran on a promise of “even-handed justice” seems so intent, over and over again, on throwing an innocent man under a bus.

The answer may lie in Morrissey’s refusal to admit his office messed up. Or in his willingness to favor fiction over facts when it’s politically expedient. Or in what the DA tells audiences at his many Rotary Club speeches and other community forums: That he’s a champion for victims.

Which is ironic because, 29 years into Moses-EL’s legal odyssey, Morrissey seems willfully in the dark about who has done the most harm in this case and who has been most hurt.

Photo of Clarence Moses-EL by Marie-Dominique Verdier.

Photo of LC Jackson courtesy of the Colorado Department of Corrections.