Greene: Beth McCann, Colorado’s newest innocence denier

Beth McCann won her seat as Denver District Attorney on a promise to restore public confidence in an office notorious for defending law enforcement at all costs. A year later, she’s poised to break that promise by perpetuating one of the city’s longest and most perverse injustices.

As a deadline approaches Friday by which McCann could bring closure to Clarence Moses-EL’s 30-year innocence battle, she’s instead planning to stonewall him. In doing so, she’s parroting her predecessor’s cop-outs about the case and letting false narratives eclipse facts.

“Beth used Moses-EL’s case to win. And now, just like Mitch Morrissey, she’s throwing him under the bus,” says Roshan Bliss, a Denver civil rights activist and member of a citizen advisory council McCann formed to purportedly address the DA’s office decades-long refusal to hold rogue law enforcement officials to account.

Moses-EL, you may remember, did more than 28 years of a 48-year sentence for a brutal 1987 rape and assault in Denver’s Five Points neighborhood that he said from day one he didn’t commit. In prison in the early 1990s, he raised $1,000 from fellow inmates to test the DNA evidence. But after DAs failed to notify Denver police of a court order allowing DNA testing, cops took the box of evidence – clearly marked “DO NOT DESTROY” – and threw it in a dumpster. They said it was an accident.

Ten years later, Morrissey’s work with genetic fingerprinting led his office to make a cold case hit in two other rapes – those of a mother and daughter in a 1992 attack at knifepoint that bore striking similarities to the one for which Moses-EL was doing time. DNA pointed to a man named LC Jackson, who happened to be the first person the victim in Moses-EL’s case had named as her assailant right after her attack. While he successfully prosecuted Jackson for the 1992 cold cases, Morrissey refused to reopen the Moses-EL case, insisting – falsely – that Jackson had no connection.

Had Morrissey admitted that Denver police erred by failing to question Jackson in 1987, and had he recognized that his office and police blundered by letting the DNA evidence be trashed, he would have had to acknowledge the city’s culpability not only for locking up an innocent man for decades, but also for letting a rapist free to rape again.

Instead, Morrissey let Moses-EL sit for nearly another decade behind bars, stubbornly blocking his attempts to prove his innocence even after Jackson confessed in the case. When a judge vacated Moses-EL’s conviction and set him free in 2015, Morrissey dug his heels in even further by dispatching one of his chief deputies, Bonnie Benedetti, to retry him.

A jury acquitted Moses-EL in November 2016 – the same week McCann was elected DA after having repeatedly said that, unlike Morrissey, she wouldn’t have retried the case.

Moses-EL since has been trying to rebuild his life. At 62, he has no job training, little work experience, and slim prospects of building a career. In October, he applied to be compensated for having lost nearly half his life behind bars for another man’s crime. Colorado’s 2013 compensation law gives $70,000 a year to applicants who were wrongfully convicted and are able to prove what’s called “actual innocence.” That means there’s more than $1.9 million at stake for Moses-EL, who as recently as Saturday couldn’t afford to fill his gas tank. The law also would give him, his son and daughter free attendance at a public university in Colorado.

“All I want, all I’ve ever wanted, is to move forward with my life,” he told me.

McCann could easily make that happen by supporting Moses-EL’s compensation claim. Both she and Attorney General Cynthia Coffman have until this Friday, Jan. 26, to file court motions in the matter. DAs typically lead the compensation process, with the state echoing their stance. Deferring to Coffman – who’s expected to oppose the request – is McCann’s tacit way of killing it.

McCann called me last week to explain her decision, saying she had met with the victim and with Benedetti, whom McCann has kept in the DA’s office and says she has trusted “for many, many years.”  She told me she’s persuaded by their insistence that Moses-EL is the true assailant.

She said she was specifically struck by the victim’s claim that she caught a look at her attacker when he briefly flipped on the bedroom light to put on his shoes.

Yet 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 assailant’s face because her house was dark throughout the ordeal. What’s more, her eyesight was extremely poor before the attack, and got worse during it when her attacker struck her face, causing her to lose sight in one eye.

McCann says she also is persuaded by Benedetti’s assertion that the victim named Moses-EL as her assailant the night she was attacked. That claim has been refuted by the police report, hospital records, and transcripts of the preliminary hearing and original trial – all of which show the victim named Moses-EL a day and a half later when she said his identity as her attacker came to her in a dream she had in the hospital under sedation.

Despite the fact that even the victim stuck by that version of events while testifying under oath during Moses-EL’s 2016 retrial, McCann for some reason is sticking with Benedetti’s different scenario. At the retrial, Benedetti flew in a witness named Floyd Howard who testified that the victim told him the night of the incident that Moses-EL attacked her. But there are holes in his claims. Big ones. Howard didn’t mention anything about Moses-EL when questioned by police in 1987, nor when questioned in 2007 about his memory of that night. During the retrial, he testified that he had been drinking heavily and likely shooting cocaine (and possibly crack and heroin) on the night in question. And, when interviewed by a defense investigator before trial, he rated his memory of the night as “1 out of 10.” He said his sudden memory improvement at trial came from “the universe” which seems to have morphed reality with 30 years hindsight.

McCann says the judge’s decision to vacate Moses-EL’s conviction and the jury’s not-guilty verdict at the retrial aren’t proof of Moses-EL’s “actual innocence” – the legal standard required for state compensation. I asked if she read trial transcripts in which she would have seen that witness after witness gave credible testimony refuting the claims she finds so persuasive. “Parts of them,” she told me about the transcripts. But, notably, not all.

“This is, you know, a he-said-she-said kind of situation,” she added. “It’s a murky case.”

But there is, in fact, nothing murky about it.

Clarity of Moses-EL’s innocence is written in the raw data from tests of the evidence before police tossed it in the dumpster. They show it’s highly likely that a man with Jackson’s blood type raped the victim, and nearly impossible that the assailant had Moses-EL’s blood type.

Evidence of Moses-EL’s innocence is spelled out in a note LC Jackson wrote him in prison in 2012 reading, “I really don’t 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 went on to confess to defense lawyers and then under oath in court, saying he hit and had rough sex with the victim on the same night and in the same place as her attack. 

Moses-EL’s innocence was clear to the inmates who served time with him in prison and helped him raise $1,000 to test the evidence for DNA. It was clear to his prison chaplain and to his caseworker, who told me “I have no doubt he didn’t do it.” It was clear to the DA’s office, which court documents show quietly inquired about whether Moses-EL would accept a plea deal for time served instead of facing retrial. It was clear to the jury that acquitted him. And it’s clear to the National Registry of Exonerations, which lists his among 2,158 wrongful convictions nationwide and counting.

In the face of all that clarity, McCann’s claims that she believes revised versions of 30-year-old events is beyond comprehension.

Even more mindblowing is another point she’s using to justify her decision not to support the compensation claim. Because Moses-EL named certain officials in her office in a federal civil rights lawsuit he filed last year, she says she needs to defend her staff and their involvement in this case. In other words, facts be damned – she has an office to protect, even at the cost of her own credibility.

It’s questionable enough for any Denver DA to block compensating a man who lost so many years to that office’s missteps. But it’s jaw-dropping coming from the former candidate who long touted her “much-needed fresh perspective” and “determination to let facts and evidence” guide the office’s legal decisions.

“Sometimes, you have to stand up and do the right thing,” she told me during an August 2016 interview that, in retrospect, seems almost laughable.

On the phone last week, McCann said she stood by her stance that she wouldn’t have retried Moses-EL – as if that matters at this point. What she didn’t say is that by standing in the way of his compensation claim now, she’s effectively forcing him to face yet a third trial in which a panel of six jurors will decide whether the state should pay the nearly $2 million for nearly three decades he’ll never get back.

“I just want to say that this is deeply disappointing,” says Bliss, who had a similar phone call from McCann. “You can’t say ‘I won’t put him through the ringer again’ and then do just that –  put him through the ringer again – without people noticing the hypocrisy.”

By the same token, you also can’t run an office that’s partly responsible for having trashed the DNA – the only evidence that unequivocally would have proved Moses-EL’s innocence – and insist, after a jury acquitted him, that he’s not “actually” innocent. At least, not with any integrity.

The U.S. Supreme Court ruled long ago that prosecutors’ main role isn’t to win cases, but to “do justice.” By “justice,” the court meant the willful airing of all evidence and, sometimes, admissions by conscientious prosecutors that the police they rely on and they, too, can be wrong.

Both Denver DA’s office and Coffman’s Attorney General’s office have demonstrated discomfort with admissions of fallibility. They beat out proposals by defense attorneys and civil rights advocates for $2.6 million in federal grants to review thousands of prosecutions in Colorado, combing for wrongful convictions. When they announced that they’d identified only one such case – that of Robert Dewey in Mesa County – Boulder attorney Elizabeth Wang was skeptical and sought records to analyze the thoroughness of their review. Both offices blocked her request, and Wang sued, unsuccessfully. In the end, Denver prosecutors and the Attorney General won the right to keep shrouding in secrecy the data behind a questionably researched project their offices have used to claim that wrongful convictions aren’t a problem in Colorado.

All that for $2.6 million in tax dollars, plus the tax dollars it cost to defend their secrecy in court. But agreeing to $2 million in compensation for the 28 years Moses-EL spent wrongfully behind bars? Nah.

Kristy Martinez, director of the Korey Wise Innocence Project at the University of Colorado, Boulder, says her organization believes unequivocally in Moses-EL’s innocence. Although she understands McCann’s instinct to protect her office and staff,  she said that instinct undermines the kind of self-reflection for which Colorado’s compensation law was passed.

Martinez said she had been inspired during the 2016 Denver DA’s race by McCann’s candidacy and what seemed like her openness to clean up what stunk during Morrissey’s 12 years in office. She even used McCann as an example for her law students of “how prosecutors can get it right.” But now that McCann claims not to see innocence in the Moses-EL case, Martinez wonders if she can see innocence at all.

Perhaps more than any aspect of governance, Martinez says the possibility of a wrongful conviction should prod public officials to embrace the humanity of their jobs, to look deeper than their instincts to protect themselves and their colleagues, and to fearlessly do the right thing. On the campaign trail, that was McCann’s rally cry – at least as it pertained to Morrissey.

With three days left until Friday’s deadline in Moses-EL’s quest for compensation, Martinez echoed that cry nearly word for word as a challenge to McCann herself: “She has time. There is still time for her to change her mind, step up, and do what’s right.”

Photo courtesy of Beth McCann for DA.