Editor’s view: BAD FAITH

The retrial of Clarence Moses-EL for a 1987 sex assault starts Nov. 7th in Denver District Court.

Moses-EL, 60, served 28 years in prison before a judge threw out his convictions last December. Newly discovered evidence, the judge ruled, was pertinent enough “to allow a jury to probably return a verdict of acquittal in favor of the Defendant.”

The new evidence includes the statements of a man who testified that he had rough consensual sex with the victim and beat her up at the exact same time and place she said she was attacked. That man was the first person the victim named in her statement to police, who never investigated him as a suspect. He’s also a convicted rapist.

You’d think that would be enough for Denver District Attorney Mitch Morrissey to drop the case against Moses-EL, who has proclaimed his innocence since the day he was arrested.

But it isn’t.

Nearing the end of his three terms in office, Morrissey is risking his reputation by re-prosecuting an apparently innocent man for an attack to which a known sex offender has confessed. Morrissey is gambling his legacy as a pioneer in DNA evidence on a case in which city officials trashed all the physical evidence before it could be tested. It’s a long shot for the DA’s office, considering its only evidence against Moses-EL is that the victim claimed his identity came to her in a dream. That’s right. A dream.

Nothing about this case – and Morrissey’s decision to keep pursuing it – has ever made sense. Not to Moses-EL. Not to his defense lawyers. Not to me.

I have covered the surreal twists and turns of Moses-EL’s conviction for 10 years. Know right now that I’ve come to believe in his innocence. Know, too, that for reasons I cannot understand, Morrissey – who has declined an interview for this column – has been hell-bent on pursuing this case, and has attacked my credibility and twisted facts to the media and to lawmakers.

The new trial is scheduled to start the day before the most attention-grabbing election in recent U.S. history. That means the story behind The People v. Clarence Moses-EL is likely to be drowned out by other news. So hear me out about the case Morrissey keeps pursuing in our names.

In a reporting career that’s almost as long as Moses-EL’s struggle to prove his innocence, I’ve never pressed this hard on my keyboard. I’ve never felt more of a call to make a story heard.

A dream

It is an August evening in 1987. Some friends gather to drink in a housing project in Denver’s Five Points neighborhood.

One of the women later says in court that she drinks “probably five or six” Schlitz Malt Liquor Bulls before heading home a few doors down where her young children are sleeping. She passes out on her couch. Soon after, a man enters their home, penetrates her vaginally and anally, and then beats her so hard that she permanently loses use of one eye. The intruder also rifles through her wallet before he leaves.

Police arrive and ask who attacked her. The victim – whose identity The Independent is protecting – tells them she didn’t get a good look because the lights were out, she has terrible eyesight and the assailant blindfolded her. Then she names as possible assailants three of the men with whom she had been drinking earlier that night. “LC, Earl, Darnell,” she says. The police report and transcripts from Moses-EL’s preliminary hearing and trial show she names the same three men in the same order to her sister, as well.

A day and a half later at the hospital, the victim changes her story by naming Moses-EL. She doesn’t know him, but they’re neighbors and she knows his wife, with whom she reportedly had been fighting earlier that week. Moses-EL’s identity, she tells police, came to her in a dream. The victim apparently puts a lot of stock in her dreams. Notes from the hospital, where she undergoes an evaluation to assess her trauma, indicate she says she “has had premonitions/visions/daydreams on a # of occasions that have come true.”

*  *  *

At trial, the victim’s dream statement was the only evidence presented that linked Moses-EL to her rape. His defense attorney – whom Moses-EL later said was incompetent – didn’t have the blood evidence fully analyzed nor ask to have the physical evidence DNA tested. He insisted that Moses-EL not take the witness stand. His strategy relied largely on witnesses testifying that Moses-EL was at home with his son and brother-in-law at the time of the attack.

Prosecutors poked holes in that defense, pointing out inconsistencies in alibi witnesses’ testimonies. And that’s how the  jury came to convict Moses-EL, handing down a 48-year sentence for first-degree sex assault, second degree assault and second-degree burglary.

“A dream,” Moses-EL told me from prison in 2006, when I first reported his story for The Denver Post. “I’m in here because of a dream.”

Dawn of the DNA era

Where were you during the O.J. Simpson trial?

Moses-EL was watching from the Crowley County Correctional Facility in 1995. While his fellow prisoners grumbled about the racism that tainted the police investigation, he was struck by something else: defense attorney Barry Scheck’s work with DNA evidence, which then was a frontier in criminal law.

Moses-EL was one of scores of prisoners who wrote Scheck in New York seeking help with their cases. He was elated when Scheck agreed. Scheck said he’d handle the post-conviction appeal for free if Moses-EL paid $1,000 to test the physical evidence for DNA.

Genetic fingerprinting wasn’t widely available when Moses-EL was arrested eight years earlier. This was his chance, finally, to prove he wasn’t the assailant.

From prison, he managed to raise the $1,000, mostly from fellow inmates who had heard him talk about his innocence month after month, year after year. Anyone familiar with how prisons work knows it’s no small task to scrape together that much money. For one thing, inmates don’t part lightly with the scant amount of cash available to them. For another, if a DNA test that fellow prisoners paid for out of their good will came back pointing to Moses-EL, it wasn’t only his appeal that was in jeopardy, but also his safety.

“The fact that Clarence asked for that money in the first place has always, to me, shown he’s innocent,” Tim Masters, the first wrongfully convicted Coloradan to prove his innocence with DNA testing, told me earlier this year. “If he’s not innocent, there’s no way in the world he was going to make that calculation, with the whole prison looking. No way. That’d be insane.”

“DO NOT DESTROY”

The most reliable proof of Moses-EL’s guilt or innocence likely was written in genetic code on the sex assault kit, two stained bed sheets, a pair of men’s briefs, and a pink and black outfit worn by the victim the night of the attack. He won a court order in November 1995 to test those items, which Denver police packed in a box they labeled in Magic Marker with large bold letters. “DO NOT DESTROY.”

About a month later, before the box could be sent to the DNA lab, someone in the police department’s evidence room ignored the label and threw the box in a dumpster.

James Huff, the lead detective in the case, had signed a form authorizing the box to be destroyed. Huff later said the Denver’s District Attorney’s office hadn’t told him that Moses-EL’s appeal was pending or that the judge had ordered the DNA evidence be made available for testing.

Tossing out the box clearly defied the judge’s order, city policy, and common sense. Yet no one in the police department or DA’s office was reprimanded.

Moses-EL remembers the day he learned police had trashed the physical evidence. He said it felt like being “given cement shoes and thrown in the water just to sink.”

Without the ability to prove his innocence through DNA analysis, he asked for a new trial. The judge sided with the District Attorney’s office, which argued that his case didn’t meet the legal standard set by the U.S. Supreme Court for criminal defendants seeking legal remedies when government agencies mishandle or destroy evidence. Defendants are required to prove authorities acted out of malice or “bad faith.”

That legal precedent pre-dated genetic fingerprinting, but still stands today, even now that DNA testing is widely available and capable of revealing scientifically irrefutable truths in criminal investigations. Legal experts say “bad faith” is almost always impossible to prove. That leaves defendants like Moses-EL with no recourse when key evidence goes missing or is scrapped presumably out of negligence or human error.

In 2006, during one of several interviews I had with Moses-EL in prison, he was still chafed by authorities’ refusal to give him a new trial.

“They broke their own rules and threw out the only key to my freedom,” he told me. “If that ain’t bad faith, man, I don’t know what is.”

“I’ll be right back”

Moses-EL was raised in West Baltimore by a single mom who had eight kids. As the eldest son, he felt compelled to quit high school and help her with the bills. He did that by stealing – petty stuff at first, but then pricier items like jewelry. He served four stints in prison for larceny in Maryland before moving to Colorado in 1986.

“I was a thief,” he admits. “But that didn’t make me no rapist. That didn’t justify giving me 48 years for something I didn’t do.”

Like a watched pot, time passes slowly in prison. Moses-EL kept his frustration from boiling over by reading everything he could. He read religious scripture, which helped solidify his belief in an Islamic-based faith known as Moorish Science. He read philosophy treatises, law books, books on chess, historical novels and biographies. He found purpose in those texts and wisdom in their words – wisdom he shared with young prisoners who came to him for advice.

At Kit Carson Correctional Facility in Burlington, the prison chaplain loaned his office to Moses-EL to counsel fellow prisoners about quitting drugs and gangs. Moses-EL urged them not to let their hearts sour. That’s what he said he told himself every day, trying to stave off bitterness.

I first met Moses-EL in that office. The chaplain sat and listened for what I recall was our nearly three-hour interview.

Moses-EL remembered riding his bike with his then 3-year-old son, Anthony, when police stopped and arrested him in 1987. He recalled telling Anthony not to worry and assuring him, “I’ll be right back.” He talked about Anthony growing up without his dad and visiting him less frequently, and then not at all as he realized his “pops” wasn’t coming back any time soon. He spoke of the helplessness he felt at times, and the suspicion that the world was conspiring against him. He described his faith in Allah and in his mom, and about her unyielding belief in his innocence.

“She told me, ‘Son never admit to something you did not do even if it costs you your life or you staying in prison.’”

Moses-EL was more than 18 years into his sentence when I met him. He spoke with disbelief and defiance about the 29 years in prison still ahead of him at that time. I asked what he’d say to Mitch Morrissey if he were there in front of him.

“I’m an innocent man,” he said, looking directly into our video camera. “Various people has been named. The evidence has been destroyed. There’s nothing that links me to this crime other than the victim’s statement. Was the victim’s testimony credible? These are the things that I want you to think about when you go to bed at night, Mr. Morrissey.

“I’m gonna be like a mosquito, a gnat. I’m gonna bug you. I’m gonna bug society. I’m going to bug the courts. I’m gonna bug the governor. I’m gonna bug the president if I have to. What does it take for an innocent man to get out?”

LC Jackson

Norm Early was Denver’s district attorney at the time of Moses-EL’s trial in 1988, and Morrissey one of the prosecutors in the office. Though Morrissey didn’t handle the case, he has said he was assigned to the same courtroom and worked closely with the prosecutor who did.  

When Moses-EL’s evidence was destroyed in 1995, Bill Ritter was the elected district attorney and Morrissey one of Ritter’s deputies. Ritter went on to become governor and refused to grant leniency on Moses-EL’s sentence.

Morrissey became DA in January 2005, having been elected largely on his expertise using DNA evidence to prosecute crimes. The crime solving tool, he promised voters, would help keep people safe.

A year into his first term, his office touted its role solving the 1992 cold case rapes at knifepoint of a 9-year-old girl and her mother. The DNA matched a man named LC Jackson, the same “LC” first named by the victim after the attack for which Moses-EL was convicted.

The 1992 assault took place about a mile and a half from the scene of the Moses-EL case, and the two incidents, as police reports and court testimony show, shared striking similarities.

Jackson knew the adult victims in both attacks and was aware that they were living with their children and without men in their homes. The victim in the Moses-EL case lived two doors from Jackson’s then-girlfriend, with whom he was staying; the victims in the 1992 case lived in the same housing complex as Jackson’s girlfriend at the time. He was familiar with both homes’ floor plans.

Both attacks happened in the middle of the night, at about 2:30 a.m. Jackson entered the home in the 1992 case through a window, just as the perpetrator is believed to have entered the scene of the Moses-EL case.

Jackson raped the 9-year-old victim in 1992 while her two-year-old sibling was in the room. The victim in the Moses-EL case was assaulted with her infant and toddler in the room. Jackson used a pillowcase to cover the face of his adult victim in the 1992 case. The perpetrator in the Moses-EL case used a “do-rag” to cover the victim’s face. Jackson applied pressure to the necks of his victims in the 1992 rapes. The perpetrator in Moses-EL’s case choked and squeezed the victim’s neck during the assault. Victims in both incidents sustained injuries to their heads.

When Morrissey’s office nailed Jackson for the 1992 rapes in 2006, Trip DeMuth, Moses-EL’s lawyer at the time, pointed out that police had never questioned Jackson as a suspect in the Moses-EL case. I have never been able to glean an answer from police about why – nor an answer from Moses-EL’s trial attorney about why he didn’t bring the holes in the police investigation to the jury’s attention.

DeMuth also raised other red flags with Morrissey’s office, including comments made by James Huff, the lead police detective in Moses-EL’s case. In a sworn statement from 2005 Huff said he always had reservations about Moses-EL’s involvement and wondered if a personal vendetta led the victim to frame him. A week before the attack, she had been fighting with Moses-EL’s wife, Stephanie Burke, over a scuffle between their two young sons. The victim told police she “had problems with Stephanie Burke before and was always being threatened by her,” according to a police report. As Burke tells it, the victim publicly vowed that she was going to “get back” at her.

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

Those factors seemed enough to at least question Jackson about his possible involvement in the Moses-EL case once the DNA implicated him for the 1992 case. But 19 years into Moses-EL’s prison sentence, Morrissey refused to reopen the investigation, asserting that the victim had never named Jackson as her assailant.

“What appears is that Mr. Jackson was somebody that the victim knew. …There’s nothing to indicate that he was involved with this in any other way,” Morrissey told me in 2007. “She never indicated that he raped her.”

That assertion, which he made several times, was wrong. The police report and transcripts of Moses-EL’s preliminary hearing and trial clearly show that when police and her sister asked who had attacked her, she answered, “LC, Earl, Darnell.” Morrissey’s office had full access to those documents, which I also photocopied and handed him during that same interview. But written proof that the victim did, in fact, first name Jackson as a possible assailant did nothing to persuade the DA to correct the record or change his mind about the case.

If police and prosecutors had done their jobs in 1987 and questioned Jackson, he may have been charged, prosecuted and yanked off the streets. That’s a painful “what-if” for the adult victim in the 1992 attack.

“The first guy named and they don’t investigate him? I don’t get that,” she told me in 2007.

Calling the mishandling of DNA evidence in Moses-EL’s case “outrageous,” she added, “I think somebody should pay for the destruction of evidence and the guy should be set free because of it.”

In our 2007 interview, Morrissey defended the discarding of the evidence.

“It got destroyed through the normal course of the destruction-of-evidence policies of the Denver Police Department,” he told me.

I pointed out that the Denver Police Department’s operational manual at the time specifically stated that police must “honor all valid court orders” regarding evidence, and that “it is the responsibility of the office or investigator” being asked to sign a destruction order to “determine the status of the case…”

I also pointed out records of the city’s probe into the destruction incident showing Moses-EL’s evidence was, in fact, trashed in defiance of Denver policy.

“Defied?” Morrissey asked me. “How are you defining ‘defy’?”

After nailing Jackson on the cold case rape, Morrissey wouldn’t agree to re-investigate Moses-EL’s case or to grant him a new trial.

“There’s nothing to support any reason to reopen the case,” he told me. “The defendant has had his day in court.”

I asked if he could empathize with Moses-EL or put himself in his shoes.

“No,” Morrissey said. “I’ve never raped anybody.”

Trashing the truth

Moses-EL’s story led a 2007 Denver Post investigative series that I co-reported and wrote with my colleague at the paper, Miles Moffeit. Our year-long project, “Trashing the Truth,” was about the loss and destruction of DNA evidence.

At the time, Morrissey had emerged as a national leader in using genetic fingerprinting to prosecute crimes and solve cold cases. He had testified before Congress and snagged millions of tax dollars for a DNA lab and lab work in Denver. Given the importance he puts on DNA evidence, his  “tough luck” response to evidence destruction – especially in a possible innocence case – is especially puzzling. Every wrongful conviction is, after all, a cold case.

In 2008, when Columbia University named “Trashing the Truth” one of three finalists for that year’s Pulitzer Prize for investigative journalism, Morrissey contacted the Pulitzer Committee to say my reporting about the Moses-EL case was inaccurate. He went on to gun for my job at the paper, telling anyone who’d listen – including my bosses – that the story was wrong. At least one member of his office even falsely spread word that I was romantically involved with Moses-EL.

In 2008, then state Senate president Ken Gordon, a former public defender, read about Moses-EL’s case and proposed a bill to address precisely his situation. The law would have required courts to grant new trials in rare cases in which law enforcement agencies destroy biological evidence in defiance of court orders to test it.

Morrissey set out to kill the bill, arguing that granting new trials would needlessly negate jury verdicts. In trying to persuade the Senate Judiciary Committee to reject the measure in March 2008, he claimed in testimony he gave to that committee that the victim identified Moses-EL as her rapist immediately after her attack. That was untrue, as is clear from, among other documents, this part of the trial transcript when the reporting police officer was testifying.

Defense attorney: “When you took the offense report, Officer, did (the victim) say anything about Clarence Moses?”

Officer: “No.”

After the Senate approved the bill, Morrissey told the House Judiciary Committee in April 2008 that Moses-EL’s efforts to prove his innocence were re-traumatizing the victim. Dubbing Gordon’s measure the “Re-victimization Bill of 2008,” he defended his record and that of his office, asserting that the case had been misrepresented by the news media, the Senate and “throughout the halls of this building.”

The bill died, leaving Moses-EL still stuck in prison.

I saw Gordon two or three times before he had a fatal heart attack in 2013. Each time, he expressed frustration about not being able to right the wrongs he felt had been done to Moses-EL, who still had more than a quarter century left in his prison sentence. The last time I ran into him, Gordon asked me to tell Moses-EL he was sorry he couldn’t have done more to help.

What was done in the dark

In the spring of 2012, a letter arrived for Moses-EL in prison. It was from LC Jackson, who by then was serving a life sentence for the 1992 cold case Morrissey’s office had solved in 2006. Moses-EL and Jackson didn’t know each other, having met only once in passing years earlier.

“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. “I don’t know who (sic) working on this, but have them come up and see me. It’s time. I’ll be waiting.”

Moses-EL’s lawyer went to see Jackson, and he confessed.

The defense filed a motion for a court hearing in which Jackson could tell his side of the story. But, in several court filings and hearings, the DA’s office fought to keep Jackson from taking the stand. At first, it argued – with no evidence – that through prison connections Moses-EL tried to coerce or bribe Jackson into confessing. Later, the DA argued that Jackson’s statements to Moses-EL’s lawyer weren’t valid because he didn’t have his lawyer present. 

The fight dragged on as two judges were replaced in the courtroom to which the appeal was assigned. Finally, a third judge was assigned to the case. Kandace Gerdes was fairly new on the bench, having been appointed straight from many years working as a prosecutor in Morrissey’s office. She granted approval for the hearing process to move forward.

In the summer of 2015, more than three years after Jackson sent Moses-El the letter, Jackson took the stand. Under oath, he said he had been with the victim in the same place and at the same time of the attack for which Moses-EL was convicted. He said he had rough, consensual sex with her that night 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.

Having let Moses-EL serve so much time for his crime, he said, 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, 50, suffers from health problems. Confessing, he explained, was his way to “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.”

Also at that hearing, Jackson’s girlfriend from 1987 – who lived two doors down from the victim – testified that Jackson had left her house at the time of the attack. And a University of Denver forensic scientist testified that, based on data analysis of evidence collected at the scene, it’s “highly likely” that someone with Jackson’s blood type was the assailant, and “highly unlikely” that it was someone with Moses-EL’s blood type.

As a result of their testimonies, Judge Gerdes vacated Moses-EL’s convictions and set him free on bond in December.

The victim has declined comment about the case since at least 2006, describing any attempt to interview her as harassment. That’s why I have not tried to reach her to ask her thoughts about Moses-EL’s release and his upcoming retrial. The DA’s office won’t say if she’ll be testifying.

Moses-EL, for his part, has tried to move forward. He has worked two jobs at an inventory service in Westminster and at a Wendy’s in Commerce City. He has reunited with his son and daughter, who were 3 when he was arrested. He has come to know his 12 grandchildren whom he had been too proud to let see him behind bars. He’s working toward building a Moorish Science Temple in Colorado. He’s relishing fresh air and mobility. And he’s acclimating to freedom in the 21st Century – Internet, iphone and all.

“Gotta stay plugged in, connected,” he said about the earbuds always around his neck and the smart phone constantly ringing and beeping and buzzing. “I have lots of time to make up for.”

Morrissey’s last stand

Morrissey could have let Moses-EL move on to rebuild his life after the judge lifted his convictions last winter. But he didn’t.

Instead, four days after the judge’s ruling, the DA’s office issued a statement. It read, in part: “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 [emphasis mine]. It took some time after the attack before the victim was able to give her statement.”

That assertion not only contradicted Morrissey’s earlier claim that the victim had named Moses-EL immediately after being assaulted, but the victim’s medical records, presented as evidence in the court file, contain no mention of her being in a coma after being brutalized. 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 “logical/coherent”, “easy to engage, verbal, cooperative.” The ER doctor and the victim’s sister both testified at trial that she was conscious.

In December, The Denver Post editorial page urged Morrissey to drop Moses-EL’s case.

“Let him enjoy the freedom that was taken from him decades ago,” the editorial read. “The case is weak with little more evidence than a dream.”

“He needs to let this go,” added state Rep. Beth McCann, the Democrat running to replace Morrissey once he’s term-limited out of office in January. If elected, she has said she’d drop the charges. McCann’s opponent, Helen Morgan, who’s running for the seat as an independent, hasn’t commented on how she’d handle the case because she works in Morrissey’s office. There’s an “ethical prohibition against me talking about it in public,” she said at a Colorado Independent debate in September.

Defense lawyers sought to disqualify the DA’s office and appoint a special prosecutor. They argued Morrissey’s office has “thwarted” Moses-EL’s “attempts to exonerate himself at every turn.”

“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,” read a motion filed on Moses-EL’s behalf. “The District Attorney’s factual misstatements have been repeatedly reported by the media and are highly inappropriate.”

Moses-EL’s lawyers also argued that Morrissey’s office should be disqualified because, after the DNA evidence pointed to Jackson in the 1992 rapes, it withheld information about similarities to his case. Both the U.S. and Colorado constitutions prohibit prosecutors from withholding evidence that’s favorable to a person accused of a crime, even after a conviction.

“…The Denver District Attorney failed to disclose this information to Mr. Moses-EL for nearly a decade…,” read 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.”

Bonnie Benedetti, the chief deputy district attorney Morrissey assigned to preserve Moses-EL’s conviction, countered that there was nothing to disclose because “there is no ‘signature’ evidence that would support that Mr. Jackson was involved in the rape” for which Moses-EL served 28 years.

In a press release, Morrissey’s office said there’s no new evidence in the case because Jackson’s confession “was not true and was retracted” in a private meeting with its staff before the 2015 hearing. “In his statement to the District Attorney’s investigator, (Jackson) admitted he had lied and made the confession up,” it reads.

But at hearing, Jackson testified before Judge Gerdes that the investigator sent to interview him by the district attorney’s office had intimidated him into changing his story. The investigator, Jackson said, prefaced the interview by saying 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.

Benedetti has suggested that, since the August 2015 hearing, Jackson has again recanted his confession. Given those vacillations, it’s unclear how he’ll testify at the retrial.

Moses-EL’s lawyers asked Judge Gerdes to postpone the trial until the winner of the Nov. 8th election takes office in January. Gerdes denied that motion on grounds that the trial date already has been pushed back once and that juror summonses already had been issued. She also twice refused to appoint a special prosecutor.

Defense lawyers filed an emergency petition with the Colorado Supreme Court asking for a special prosecutor. The request alleged years of misconduct by Morrissey, saying he had a personal interest in his office’s prosecution of the case. Benedetti has countered in court that, “To continually say that this is somehow a personal vendetta of Mitch Morrissey is simply without basis.” The court denied the emergency petition earlier this month without comment.

Jury selection for the two-week trial is scheduled to start on Nov. 4. Morrissey’s office asked that jurors not be allowed to hear that authorities trashed all the physical evidence nor that Moses-EL already spent nearly three decades in prison on the case. Those facts — both of which cast the DA’s office in unfavorable light — could cause jurors to “unfairly sympathize” with Moses-EL, Benedetti argued. Judge Gerdes agreed, saying, “Sympathy has no place in a criminal trial.”

“What they gonna think?” Moses-EL asked me a few weeks ago about the jurors in his retrial. “They gonna think I been hiding out all this time, 28 years hiding out somewhere, instead of the reality of the thing – that I done spent 28 years locked up for this already.”

Fairness

Over the past 10 years, I’ve read volumes of legal documents and court transcripts, conducted dozens of interviews and written umpteen stories about Moses-EL’s case. Never has he strayed from the details he laid out in our first interview in the prison chaplain’s office. Never has he hesitated when I asked a tough question. And never has anyone involved in that ugly August night in 1987 assured me that this case is even remotely fair.

I’ve come to admire Moses-EL’s strength and dignity throughout his ordeal. I’ve come to count him as a friend. I admit I’m no longer objective about this case, but I assert that I am factually right.

It would be unfair to blame Morrissey for the shoddy police work in 1987. It would be unfair to hold him personally responsible for the department’s failure to interview LC Jackson, letting him ­walk free then. It also would be unfair to fault Morrissey directly for letting all the truth-telling DNA evidence get tossed in a dumpster.

Yet, in straining to justify those and other mistakes, Morrissey acts in bad faith, continuing to trash the truth of this case.

The district attorney had more than enough evidence in 2006 to re-examine Moses-EL’s convictions. Now, by continuing to hang charges over Moses-EL’s head, he’s stripping even more time from a man who’s already lost nearly half a lifetime to this case while the man who admits he attacked the victim goes untried and unpunished. That is the greatest unfairness of them all.

“DO NOT DESTROY” is a warning about more than just boxes of criminal evidence. It also applies to the people over whom prosecutors hold enormous power. It’s a caution about the lives they can wreck when they take that power and stubbornly, persistently misuse it.

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

LC Jackson photo from Colorado Department of Corrections. Mitch Morrissey photo from Denver District Attorney’s website.