‘Bringing what was done in the dark into the light’

DENVER– A Colorado man who has spent more than a quarter-century in prison for a rape in which the victim claimed her attacker’s identity came to her “in a dream” is appealing his conviction based on new evidence.

Clarence Moses-EL is asking for a new trial that would include statements made over the past year by LC Jackson, the man the rape victim first named as the assailant in her 1987 attack in her home here. Jackson – who is serving what amounts to a life sentence for other rapes nearby five years later – wrote Moses-EL last year saying, “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 asked that Moses-EL send a lawyer to interview him. “I’ll be waiting,” he ended his letter.

In statements on three different occasions, Jackson since has admitted to having had rough sex and beaten the victim on the night – and at the time – of the attack for which Moses-EL was convicted and sentenced to 48 years.

“I wanted to tell Moses that this was my involvement with her, this is what happened between me and her that night… There are certain things that need to be cleaned up,” he told an investigator.

Mark Burton, Moses-EL’s lawyers, calls Jackson’s detailed statements about the night in question “an outright confession.”

“This is a case in which the only evidence was the victim’s dream. If this confession had been available at trial, there’s no question it would have resulted in an acquittal.”

[dropcap]T[/dropcap]he story of Moses-EL’s long quest to prove his innocence is a case study in negligence by the criminal justice system. It also shows the lengths prosecutors will go to defend their offices’ convictions despite new evidence casting doubts on whether justice has been served.

On August 27, 1987, the victim had been drinking at least five Schlitz Malt Liquor Bulls at the home of her friend on Arapahoe Street in Denver’s Five Points Neighborhood. Jackson was among the people she had been drinking with that night. Moses-EL was not one of them.

The victim told police she returned home and fell asleep on her couch when an intruder entered her home. She said she couldn’t see her attacker because her home was dark and because she wasn’t wearing her glasses, without which she said she was essentially blind. She said the assailant raped and severely beat her. Bones were broken in her jaw and eye socket, leaving her without the use of one eye.

Immediately after, when police asked who attacked her, she said it was one of three men with whom she had been drinking – “LC (Jackson), Earl (Jackson, LC’s brother), (or) Darnell.”

She answered the question the same way later at the hospital.

But she changed her story a day and a half later when she named Moses-EL, her neighbor whose wife she had been feuding with the morning before her attack.  Moses-EL’s identity, she said, had come to her in a dream while she was sleeping in the hospital. According to her psychiatric examination, she claimed to have had “premonitions/visions/daydreams on a number of occasions that have come true!”

Denver police never investigated Jackson or the two other men the victim had been drinking with and named in her first outcries. Rather, police deemed the victim’s dream – and Moses-EL’s two prior robbery and burglary convictions in Maryland, where he used to live — to be enough to arrest him for the attack.

From the start, he pleaded for police to test the biological evidence. They didn’t.

He was convicted and sentenced to 48 years in prison.

Like much of the nation, Moses-EL followed the O.J. Simpson murder case from prison during the mid 1990s. He wrote Simpson’s lawyer, Barry Scheck, asking for help testing the DNA from the physical evidence in his case – tests that weren’t accessible to criminal defendants when he was tried seven years earlier. Scheck agreed on the condition that Moses-EL pay $1,000 for the lab test. Penniless, Moses-EL raised the money from fellow prisoners who for years had been listening to him profess his innocence.

In November 1996, Moses-EL won a court order to test the rape kit, two bed sheets and the victim’s outfit from the crime scene. The evidence was placed in a box marked “DO NOT DESTROY.” Prosecutors failed to tell the main police detective on the case about the court order. Four weeks after the order, while Moses-EL’s lawyer was arranging to send someone to go to Moses-EL’s prison and swab his mouth for a DNA sample to compare to the evidence, Denver police threw the box in a dumpster, destroying all evidence in the case and, it seemed, Moses-EL’s ability to prove that he was not the victim’s attacker.

Moses-EL recalled hearing about the destruction.

“I literally broke down in the cell,” he told this reporter for a story that ran in The Denver Post.

“I said, ‘Man, I know that didn’t happen.’ I was blown away. Broken. I felt like a person who was given cement shoes and thrown in the water just to sink.”

Jackson, in his statement to investigators, said: “Me having my DNA there, it probably would have been me. Then she (the victim) would have had to come clean, saying me and her were together.”

No police or prosecutors were reprimanded in what was deemed their failure to communicate about the DNA evidence.

Moses-EL appealed his conviction partly because of the evidence destruction. The judge denied his request for a new trial based on a Supreme Court ruling that destroying criminal evidence doesn’t violate constitutional due process rights unless you can prove it was done in “bad faith.”

Many criminal defense experts decry the 1988 Arizona v. Youngblood ruling, saying that the “bad faith” standard is nearly impossible to prove in court. The Youngblood case pre-dated the use of DNA testing. Despite the destruction of evidence in his case, Larry Youngblood’s lawyers ultimately found DNA samples that exonerated him. Criminal defense experts, including those at Scheck’s Innocence Project, have said that cases like his and Moses-EL’s illustrate the need to require better evidence preservation now that DNA testing is such a reliable truth-teller.

[dropcap]T[/dropcap]wenty years after the Denver rape for which Moses-EL was convicted, his story became known in 2007 when The Denver Post featured it in the first of a national investigative series about evidence destruction called “Trashing the Truth”

At around that time, Denver District Attorney Mitch Morrissey’s office was prosecuting a man for a 1992 cold case rape of a mother and her 9-year-old daughter at knifepoint about a mile and a half away from the site of the attack in Moses-EL’s case. Morrissey’s much-touted cold case unit had found a genetic hit linking the 1992 rapes to a familiar name: LC Jackson.

Although well aware of Jackson’s dangerousness, Morrissey refused to acknowledge the possibility that Jackson had a link to Moses-EL’s case. In an on-camera interview and under testimony to the state legislature, he insisted that the victim in the Moses-EL case didn’t name Jackson in her outcry. Based on those assertions – which are contradicted several times in police records and court transcripts — Morrissey managed to kill a legislative bill to give Moses-EL a new trial.

Six years later, Morrissey still won’t reopen Moses-EL’s case, even in light of Jackson’s apparent confession. In a recent meeting with Morrissey, Burton, Moses-EL’s lawyer, said the DA seemed eager to defend Moses-EL’s conviction in court.

Morrissey’s office said it will review the appeal “to see if a comment (is) appropriate.”

The motion for a new trial, which Burton filed in court late Monday afternoon, outlines the details of the night of the attack from the point of view of Jackson, then a young 200-pound weight lifter and occasional strip club dancer. He told investigators that the victim had been flirting with him earlier in the evening and gave him her key to meet at her house. He said they had rough sex on her couch until, at some point, he became enraged that she had inserted his penis into her anus – a practice he views as medically unsafe and “nasty.” He remembered feeling “really pissed off,” “upset” and mad” about the smell of feces on his body. In what he described as a “split second reaction,” he said he struck the victim in rage.

“It was like pow…take this for doing that,” he said. “I was pretty strong so maybe what I thought was a slap could have been putting her in a coma or something.”

“I just hate that I reacted the way I did,” he added.

Jackson, now 47, described his religious faith to investigators, saying that “I did not find God, God found me.” Coming forward about his involvement the night of the 1987 attack, he said, is “helping me because I had never said anything about it.” He and Moses-EL, although both in Colorado’s prison system, have met briefly, but don’t know each other.

At the time of Moses-EL’s trial, the only physical evidence that could be used to identity the attacker was semen that was tested for specific plasma markers.  It appeared that the donor of the semen was a secretor of what’s called an H antigen.  Moses-EL was tested and found to be of B blood type, which means that you would expect to find secretion of H and B antigens.  Jackson is strictly an H secretor, a closer match to the semen found in the victim.

James Huff, the lead detective in the case, said in 2005 that he wondered whether the victim framed Moses-EL because of a personal vendetta against his wife.

“Due to the fighting and the bickering, the jealousy, the pettiness, all of that, I always have had doubts about this. I could never prove it either way,” reads Huff’s sworn statement. “This is one of those cases where I really wish there was DNA.”

Huff has died since giving that statement. Meantime, defense investigators have interviewed Ruby Hardy, a neighbor of the victim, who said she saw Jackson hurriedly leave the victim’s house at about the time the victim said she was attacked.

Moses-EL’s wife, Stephanie Moses, says that after she had been feuding with the victim about their young sons the day leading up to the attack, the victim threatened to retaliate against her. She sees the accusation against her husband as a form of retaliation.

“I’ve known he was innocent from day one. Everyone knew it. He was just railroaded,” she said

Moses-EL, 58, has spent nearly half his life serving time on this case. He has missed raising his son and daughter and hopes that an exoneration will give him the chance to help his wife and children raise his many grandchildren.

He sees Jackson’s statements as an affirmation of what the system has refused to hear for 26 years.

“I have sat here, banging my head against the wall, trying to get someone to wake up and listen,” he told The Independent. “But I’m a patient man and a believer in the truth. However long this takes, I know the truth is coming out. People will hear the truth. And it will set me free.”

(Clarence Moses-EL is pictured at the left above. LC Jackson is pictured at the right. Mug shots provided by the Colorado Department of Corrections)