Denver DA’s office argues it should stay on Moses-EL case

Denver’s District Attorney Mitch Morrissey’s office is fighting an attempt to disqualify it from an innocence case in which it has been accused of withholding evidence and lying.

At issue is the case of Clarence Moses-EL, whose convictions were vacated by a judge earlier this winter after he spent 28 years in prison for a 1987 attack to which another man has confessed. Despite that confession and a dearth of evidence against Moses-EL, Morrissey’s office wants to retry him this spring.

Moses-EL’s lawyers are calling for a special prosecutor, saying Morrissey and his office can’t prosecute fairly because they’ve long twisted facts to cover up their many missteps.

A court filing from Morrissey’s office doesn’t debunk allegations that it has lied about the case. Rather, it tries to justify Morrissey’s and his office’s many misstatements by saying “the prosecution perceives and argues the facts of this case differently than do the defense attorneys.” In other words, the argument goes: Indisputable facts — even those recorded in black and white on police records and court transcripts — are somehow open to prosecutors’ subjective perceptions and interpretation.

“The People submit that there is nothing unique about such opposing views in the adversary setting of the criminal justice system,” reads the DA’s legal response.

Moses-EL, 60, was convicted for the 1987 rape and burglary of a woman in Denver’s Five Points neighborhood. There was no evidence linking him to the crime other than that the victim named him as her assailant after she said his identity came to her in a dream. That dream took place after the victim repeatedly named three other men – “LC, Earl or Darnell” – when asked the night of the attack who hurt her.

The first of those men, LC Jackson, was prosecuted by Morrissey’s office a decade ago for the unsolved 1992 rapes of a mother and her 9-year-old daughter at knifepoint 1.4 miles from the scene of the Moses-EL case. Morrissey’s office didn’t disclose evidence from the 1992 case to Moses-EL, even though details closely match those of the 1987 incident for which he was convicted — and even though Morrissey’s office was aware he was trying to prove his innocence.

Prosecutors have a duty to hand over evidence that’s favorable to a criminal defendant or convict.

Once it came to light that Jackson was the first man named in the Moses-EL case, Morrissey still refused to question Jackson about his involvement. Morrissey insisted, incorrectly, that the victim never named Jackson as her attacker. Police reports and court transcripts – all of which were made available to Morrissey — clearly disprove his assertion.

Morrissey went a step further by trying to shut out new evidence.

In 2012, Jackson wrote Moses-EL from prison saying he wanted to confess.

“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 wrote.

Morrissey’s office fought to keep Jackson from testifying. But Denver District Judge Kandace Gerdes ordered Jackson to take the stand last summer, when he admitted that he had rough sex and beat the victim of the Moses-EL case in the same place and at the same time of her 1987 attack. Coming forward after all these years, Jackson said, was his way of making things right with his god.

Since Jackson testified last summer and since Judge Gerdes lifted Moses-EL’s convictions this winter, Morrissey’s office has done everything it can to discredit the confession.

Its most recent legal filing suggests Jackson is taking the rap for Moses-EL because Jackson is already spending life in prison for the 1992 attack — so, like, why not? (Never mind that the two men barely know each other, having met only in passing years ago. Or that rapists get seriously messed with in prison. Or that an inmate who let another man do 28 years of his time likely would get messed with even more.)

“Mr. Jackson consistently and repeatedly has told the DA investigator and this deputy DA that he did not commit nor has he ever had sexual relations with the victim,” the DA’s office goes on to write. “He has recanted his testimony both before and after his testimony” last July.

But the DA’s filing fails to address a key reason Moses-EL’s lawyers want the office ousted from the case: Jackson testified that, a few days before the July hearing, the DA’s investigator and Deputy DA Benedetti intimidated him into recanting his confession. The filing also fails to explain why Benedetti chose an investigator who introduced himself to Jackson by letting him know he was the former Denver cop who had arrested him years earlier in a burglary case for which Jackson spent eight years in prison.

The intimidation allegation goes unaddressed in the DA’s office’s response.

About allegations that Morrissey has lied, the office wrote: “The People submit that there is sound factual basis for the information conveyed by Mr. Morrissey…”

But the soundness of that “sound factual basis” is questionable.

The DA’s filing strains to justify flat-out lies that Morrissey told the 2008 legislature. “Mr. Morrissey outlined the facts of the case in their totality rather than in isolation,” it argues – whatever that means.

The filing also tries to parse a misstatement the DA’s office made in a press release after the judge freed Moses-EL on bond in December. In its statement to the media, the office strained to explain why the victim waited more than a day to name Moses-EL as her assailant after she had named three other men. She “was in a coma” the night of her attack, it asserted.

The victim was not, in fact, in a coma. She made several statements that night that were clearly discernible to police, doctors and her own sister.

Instead of admitting its inaccuracy, Morrissey’s office digs in its heels in its legal filing, noting that on the night of her assault, the victim had difficulty speaking, had been beaten so badly her sister hardly recognized her, had an eye injury that was so severe a doctor had difficulty examining it, and seemed out-of-it to a police officer who questioned her. The implication was that somehow those details, taken as a whole, made the victim kind of, sort of coma-like.

But the coma was a flat-out fabrication, the latest in the DA’s office’s long string of attempts to justify its feeble case against Moses-EL. Morrissey’s office for years has misstated facts like throwing pasta against a wall to see what sticks. Many of its misrepresentations have, in fact, stuck as some unquestioning media outlets continue to repeat them in their news coverage.

In response to the allegations that it withheld evidence that years ago would have helped Moses-EL’s innocence claim, the DA’s office wrote that it didn’t disclose similarities between the 1987 and 1992 cases because it didn’t deem them noteworthy. The parallels the DA’s office blew off include the following:

• The perpetrator in the Moses-EL case entered through a window; Jackson entered the home in the 1992 case through a window.
• Jackson was familiar with the floor plans of both homes and knew that no men were in the houses
• 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.

“Although there are some similarities as outlined in the defense motion, the great majority of the similarities outlined are common in nearly every sexual assault,” the DA’s office wrote.

In its filing, Morrissey’s office writes about Moses-EL’s convictions as if they should have been immutable.

“The defense in this case seems to gloss over the fact that there was a jury trial…,” it argues.

But what the prosecution glosses over are the facts that Jackson has confessed since the jury trial and, based largely on his confession, the judge has lifted Moses-EL’s convictions. It also glosses over the fact that, despite Morrissey’s attempts to suppress it, blood analysis from the case shows it’s highly likely that someone with LC Jackson’s blood type was the attacker, and highly unlikely that it was someone with Moses-EL’s blood type.

One of the many rubs in Moses-EL’s case is that the identity of the real assailant likely could have been settled by testing the rape kit, bed sheets and clothing from the assault.

Genetic fingerprinting wasn’t available at the time Moses-EL was arrested, tried and convicted after having claimed his innocence from day one. So, from prison in the 1990s, he fought for and won a court order to test the evidence – a process for which he raised $1,000, mostly from fellow inmates. Police packaged the evidence in a box marked “DO NOT DESTROY.” But, before the box was sent to a DNA lab, police tossed it in a dumpster.

In its legal filing, the DA’s office notes that the case was tried and evidence destroyed long before Morrissey took office in 2005.

“…The DA’s office made every effort to prevent the destruction of the DNA evidence,” its filing reads. “The issue of the destruction of evidence was fully litigated and it was determined that there was no bad faith on the part of the District Attorney’s office or the police and no legal basis for a new trial.”

To borrow from the DA’s office’s own parlance, those arguments are correct in isolation, but not in their totality.

Morrissey has defended the methods by which authorities scrapped Moses-EL’s evidence.

“It got destroyed through the normal course of the destruction of evidence policies of the Denver Police Department,” he told this reporter in 2007.

That wasn’t true.

The Denver Police Department Operations Manual from 1995, when Moses-EL won a court order to test evidence for DNA, stated, “It is the responsibility of the officer or investigator … to determine the status of the case” before ordering evidence to be destroyed. Denver Police acknowledged that Moses-EL’s evidence was trashed because “communications problems occurred between either the detectives and the Assistant Deputy District Attorney or detectives from two different bureaus.”

The lead police detective on the case, James Huff said the DA’s office never told him that a judge had ordered the evidence to be made available for testing.

In a 2007, Morrissey blamed Huff for the destruction of the evidence.

“I think that everybody knows who’s responsible for it. Detective Huff signed the…destruction form,” he said.

Then, twelve minutes later, in the same interview, Morrissey said it wasn’t Huff’s fault.

“I never said who was responsible for this,” he said. “I didn’t hear the evidence in this case, and I can’t say Detective Huff was responsible, that the property bureau was responsible. I can’t tell you that.”

Before Huff died, he said he always had misgivings about Moses-EL’s case.

“…I always have had doubts about this. I never could prove it either way,” reads his sworn statement from 2005. “This is one of those cases where I really wish there was DNA.”

Moses-EL, who’s trying to rebuild his life and family after 28 years in prison, echoes those sentiments.

“The DNA would have revealed the truth way back 20-something years ago when it was supposed to get tested,” he told The Independent.

“But sometimes the truth takes longer than it should. And, if I’ve learned anything in all this, it’s that the truth always finds a way to reveal itself, no matter how long it takes and who tries to get in its way.”

Photo credit: Denver District Attorney