Reasonable Doubts

Denver District Attorney’s nine-year efforts to overlook new evidence in a rape case raise questions about his commitment to seeking justice

Reasonable Doubts

A convicted rapist has confessed in a 1987 sex assault case for which an apparently innocent man is spending his 28th year behind bars.

In light of the confession and other new evidence, Denver District Judge Kandace Gerdes has until October to decide whether to grant a new trial to Clarence Moses-EL, who’s serving a 48-year sentence for an attack he has said – unwaveringly and repeatedly, from day one — he didn’t commit.

Now that Moses-EL’s long-awaited appeals hearing has ended this week, the big question looming over the decades-old rape, beating and burglary case is less “Who Dunnit?” than why District Attorney Mitch Morrissey and his office keep trying to quash facts about what looks increasingly like a wrongful conviction.

“What this case shows is the absolute inability of the criminal justice system – particularly the prosecutorial part of that system – to own up to its mistakes,” said David Wymore, one of the lawyers who in 2008 helped free Tim Masters from Colorado’s most notorious wrongful conviction.

New evidence supporting Moses-EL’s innocence claim includes the following developments:

• Rape convict L.C. Jackson has confessed to having sex with and beating the victim at the same time and place she said she was attacked.

• In court Monday, Pamela Sanders, Jackson’s live-in girlfriend in 1987, corroborated his testimony that he had left their house during the time the victim was attacked a few doors away.

• And blood evidence shows it’s “very likely” the perpetrator’s semen came from a man with Jackson’s blood type and “very unlikely” it came from a man with Moses-EL’s blood type, a University of Denver forensic expert testified.

Defense lawyer Eric Klein argued Monday for another trial.

“Mr. Moses EL has been waiting a long time for this day — almost exactly 28 years,” he said. “We’ve got abundant evidence pointing to L.C. Jackson. At the end of the day, a jury would have reasonable doubt.”

Morrissey defends the conviction. For nine years, he steadfastly has refused to reopen Moses-EL’s case and denied that Jackson may have had a role in that attack.

“There’s nothing to suggest the victim in this case ever named L.C. Jackson,” he told this reporter in an interview for The Denver Post’s 2007 “Trashing the Truth,” an investigation of Moses-EL’s, Tim Masters’ and other cases.

But, in fact, records show that Jackson was the first man the victim named as her possible assailant. Police and prosecutors failed to question Jackson as a suspect. Instead, they pursued Moses-EL based on the victim’s assertion a day and a half later that his identity came to her in a dream. That dream was the only evidence linking Moses-EL to the case.

“A dream,” Moses-EL has said from prison. “I’m in here because of a dream.”

Morrissey’s repeated assertions that nothing linked Jackson to Moses-EL’s case weren’t just factually wrong. They were inconsistent with what the DA well knew about Jackson’s propensity for violent rape.

In 2006, Morrissey’s office touted its DNA hit tying Jackson to the unsolved 1992 rapes of a mother and her 9-year-old daughter at knifepoint. Solving that case marked a coup for his cold case unit, which has earned Morrissey national renown for cracking unsolved cases with genetic fingerprinting. His office won convictions and a 135-year prison sentence against Jackson.

The north Denver home of the mother and daughter victims of that attack is 18 blocks from the scene in Moses-EL’s case. Several details about the incidents are similar. Among them:

• Jackson has said he was drinking malt liquor on the nights of both attacks.

• Jackson has claimed that he had sex with the victim in Moses-EL’s, like he had sex with the mother and her 9-year-old in 1992, consensually

• The 1987 victim was assaulted with a baby in the room, as were the mother and daughter five years earlier

• Jackson raped the mother in 1992 after shoving a scarf in her mouth and a pillowcase over her head; the victim in the Moses-EL case was blindfolded with a do-rag.

• The mother in the 1992 case and the victim in Moses-EL’s case each had valuables stolen out of their purses after they were attacked.

In court this week, Chief Deputy District Attorney Bonnie Benedetti downplayed the similarities as common in rapes. Like Morrissey, Benedetti has strained to de-emphasize Jackson’s links to the Moses-EL case.

Despite having been shown documentation to the contrary, Morrissey kept misstating the facts about Jackson’s potential involvement when testifying at the state legislature. He incorrectly told lawmakers that the victim in Moses-EL’s case never named Jackson as a possible assailant. His 2008 testimony helped kill a bill proposed by then-state Senate President Ken Gordon to reinvestigate criminal cases in which officials destroy biological evidence that courts had ordered to be tested as part of post-conviction innocence claims. In other words – cases like Moses-EL’s.

Gordon, who died in 2013, was convinced of Moses-EL’s innocence and “appalled,” he often said, by Denver’s mishandling of the case – especially the destruction of DNA evidence.

It happened like this…

From prison, Moses-EL – like much of the nation – watched the OJ Simpson trial and paid close attention as defense lawyer Barry Scheck worked with the then-nascent forensic science of DNA fingerprinting. Moses-EL wrote Scheck asking for legal representation to prove his innocence with the DNA evidence gathered in his case. Scheck agreed, provided that Moses-EL could raise $1,000 to have the evidence tested.

Moses-EL went on to win two court orders for DNA testing and raised the $1,000 from fellow prisoners. Police packaged the rape kit, bed sheets and victim’s clothes in a box they marked “DO NOT DESTROY.” Then, before the box could be sent to the lab, an officer tossed it in a dumpster.

Had the evidence been tested, DNA results likely would have revealed the truth about Moses-EL’s innocence claims more than 20 years ago.

“It’s painful how it all went down – years of freedom in the trash with that box,” Moses-EL, 59, told The Colorado Independent.

Morrissey has defended police and prosecutors’ handling of the evidence, saying its destruction didn’t warrant a new trial.

Morrissey kept defending Moses-EL’s conviction even after learning that Jackson has admitted to having sex with and belting the victim.

Benedetti spent months trying to block Jackson from testifying. She even expressed concerns about his legal rights, saying she feared he could incriminate himself if he took the stand, even though she had said the statute of limitations in the case had tolled.

Still, Jackson spoke out.

Bent with health problems, the 48-year-old limped into court with a cane last week, nodding to the judge and then, solemnly, to Moses-EL. Both men have been housed in the state prison system, but hadn’t seen or spoken with each other since 1987.

Jackson first reached out to Moses-EL in a letter.

“I really don’t know what to say to you,” it reads. “But let’s start by bringing what was done in the dark into the light.”

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It took three years and much legal wrangling for Moses-EL to be allowed a hearing in which new evidence could finally be exposed.

In court Thursday, Jackson testified that, after drinking with the victim and other friends on the August 1987 night in question, he had sex with her in a position he has said he found “nasty.” He got angry, he said, and lashed out in what he described as a “Dr.-Jeckyll-and-Mr.-Hyde” outburst.

“I can’t remember if it was a punch or a slap. I know I hit her, like two or three times.”

The victim’s face and eye were severely – and permanently – damaged.

Letting Moses-EL serve time for his crime, Jackson testified, sat heavily on his heart for years.

“It was hard for me to stand up,” he said. “I guess I was being selfish.”

He needed to clear Moses-EL of involvement in order to clear his own path to “the kingdom of heaven,” he told the judge.

“I just think this is the way I can relieve myself and not carry all this with me.”

Benedetti tried to discredit Jackson, arguing his testimony didn’t amount to a confession because he admitted only to consensual sex, not rape. The fact that he admitted to clobbering the victim seemed inconsequential to her view of the case.

She went on to theorize – with little or no evidence – that Jackson is making admissions either because he’s mentally ill, felt bullied by Muslims in prison (Moses-EL is Muslim), wants money from Moses-EL (who has none), is doing a favor for a buddy (they’re not friends), wants to retaliate against Morrissey for prosecuting him for the 1992 rapes or is being puppeted by “someone.” Who that someone may be, in Benedetti’s mind, she didn’t say.

Coming from Benedetti, the “puppeting” theory is especially ironic. At her request during a prison interview in May, Jackson wrote a short statement saying he recanted his confession. Benedetti cites that letter as proof of his credibility problems and evidence that he had no involvement in the attack. Jackson, in turn, says he wrote the statement because Benedetti threatened him with prosecution for perjury. He noted that the investigator she choose to bring with her to the interview introduced himself to Jackson as the officer who arrested him in 1987 on a charge for which Jackson went on to spend eight years in prison.

“I felt kinda, like, intimidated, a little bit,” Jackson said on the witness stand. “I shouldn’t have wrote that note.”

In her closing, Benedetti argued that Jackson’s confession wasn’t a confession, that new blood type evidence wasn’t new and that Moses-EL’s lawyers put on “absolutely no new evidence in this case whatsoever.”

“There is nothing new,” she told Judge Gerdes, her former colleague in Morrissey’s office. “The people urge the court to uphold the jury’s verdict in this case and not grant a new trial in this case.”

Morrissey, for his part, is staying mum.

“Out of an abundance of caution, I think it would be better not to comment until after… the judge makes a ruling,” said his spokeswoman, Lynn Kimbrough.

An “abundance of caution,” if that approach had been taken from the start 28 years ago, would have led law enforcers to question Jackson as a suspect, given that he was the first possible assailant the victim named after her attack.

A cautionary approach would have given police and prosecutors pause about pursuing Moses-EL merely on the victim’s dream.

Caution, years later, would have led DAs to make sure police preserved the truth-telling DNA evidence Moses-EL had two court orders to have tested. And it would have kept police from throwing out a box marked “DO NOT DESTROY.” After the evidence was tossed – partly due to the DAs failure to communicate — caution would have prompted prosecutors to let the case be retried.

An adherence to caution probably would have inspired Morrissey to reopen the case after he nailed Jackson on an unsolved rape near the scene of the attack – a case that shared many marked similarities.

And, certainly, even the smallest modicum of caution in the case would have led Morrissey to invite Jackson’s admissions rather than trying to shut them down.

“I am surprised that the DA’s office is resisting the introduction of relevant evidence to allow a judge to make a fully informed decision,” said Beth McCann, who’s running to replace Morrissey as DA and has had what she calls “concerns” about the Moses-EL case. “The job of the DA is to seek justice, not just convict.”

“I absolutely believe that the worst thing a prosecutor can do is put or keep an innocent person in prison,” added candidate Michael Carrigan.

Civil rights activists and others critical of Morrissey’s record – especially his decisions never to prosecute an officer for deadly excessive force — had over the past months sought to oust him through a recall election. They announced this week that they failed to collect enough signatures to make the ballot. Still, they say, they’ve succeeded in publicly raising doubts about his record. Big doubts, they say. Reasonable doubts.

Watchdogs are decrying Morrissey’s long pattern of defending law enforcement at all costs. In Moses-EL’s case, they say, that pattern has caused the DA to stand behind a conviction, regardless of whether the facts suggest his office prosecuted the wrong man.

“Mitch Morrissey has shown time and time again his disregard for justice and fairness,” said Mike Roque, executive director of the Colorado Progressive Coalition, which watchdogs police and prosecutors. “The Moses-EL case is just another glaring example of Morrissey’s arrogant behavior towards the residents of Denver.”

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Susan Greene

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