Conviction vacated in 28-year innocence case
First, Denver tossed the DNA evidence in a dumpster. Then, Denver DA Mitch Morrissey spent years fighting the facts of Clarence Moses-EL’s appeal.
A judge has lifted convictions against a Denver man who has served more than 28 years behind bars for an attack he said from day one he didn’t commit.
The prosecution of Clarence Moses-EL hinged on a sole piece of flimsy evidence – an assertion by the victim of the 1987 rape and assault that his identity as her attacker came to her in a dream.
“The weight of that dream has been pressing down on me, pressing down on me hard, for more than 28 years,” Moses-EL said in an interview with The Colorado Independent earlier this month.
Today, during a phone call just after learning of the ruling, an elated Moses-EL – who turned 60 last week – said that weight is finally lifted.
“A whole lot of stress has been taken off me knowing I don’t got to deal with the badness no more,” he said.
“Victory!” he continued. “Right is on my side. And it has been on my side the whole time.”
Today’s ruling by Denver District Judge Kandace Gerdes comes after District Attorney Mitch Morrissey has fought for years to uphold the conviction despite increasing evidence of Moses-EL’s innocence.
Denver officials’ missteps include:
- Destroying all DNA evidence. After a judge granted Moses-EL an order to test the rape kit, the victim’s clothes and other key evidence for genetic fingerprinting, authorities in 1995 put the evidence in a box marked “DO NOT DESTROY.” Then, they threw it in a dumpster. Destroying the evidence prevented Moses-EL from proving his innocence for more than two decades.
- Refusing to re-open the case in 2006, when Morrissey’s office started prosecuting L.C. Jackson for a similar rape of a mother and her daughter. Jackson was the first man the victim in the Moses-EL case named in her outcry, but police and prosecutors never investigated him. Even though Morrissey knew of Jackson’s criminal past, the DA asserted — incorrectly — that Jackson was never named by the victim in Moses-EL’s case.
- Ignoring a statement by the lead police investigator that he always had doubts about the case
- Trying to suppress new blood evidence showing it’s highly likely that someone with L.C. Jackson’s blood type was the attacker, and highly unlikely that it was someone with Moses-EL’s blood type
- And trying to prevent L.C. Jackson from confessing in court
Morrissey’s office didn’t return inquiries today about the new ruling.
In a 2007 interview with this reporter for a story in The Denver Post, Morrissey was asked if he could put himself in Moses-EL’s shoes. He answered without hesitation.
“No,” he said. “I’ve never raped anybody.”
As Moses-EL’s son, Anthony Burke, tells it, wrongfully convicting an innocent man and yanking him from his family for more than 28 years is as hurtful as you can get.
This case “took a lot of years from my dad, my family. This affected a lot of people,” Burke said.
Burke was three when he was riding on the handlebars of his father’s bike in Denver’s Five Points neighborhood and the police stopped and arrested him. Burke, his sister, mother and extended family since have stuck by Moses-EL, who has long asked them not to visit him in prison because he doesn’t want them to see him behind bars.
Of the twelve grandchildren whose photos he keeps in his cell at the Bent County Correctional Facility — a private prison in Las Animas — Moses-EL said, “I want them to meet me as a free man. I want their first memory of me to be a positive one.”
Moses-EL’s ordeal started in August 1987 when his neighbor returned home to her apartment after a night out drinking at a party. In the dark, she was raped and beaten so badly that she lost use of one eye.
The Colorado Independent has a policy of not naming rape victims.
In her outcry to police, the victim named three men she had been drinking with as her possible attackers – “L.C., Earl or Darnell.” None of those men were investigated because, a day and a half later, the victim told police that Moses-EL attacked her. She knew, she testified, because his identity had come to her in a dream.
That dream was the only evidence tying Moses-EL to the case for which a jury convicted and sentenced him to 48 years in prison.
Moses-El professed his innocence from the day of his arrest.
“My innocence is all I’ve had. I’ve held on to it more tightly than anything,” he said.
From prison in the early 1990s, Moses-EL wrote Barry Scheck, the New York City defense attorney who used DNA to help clear OJ Simpson of murder charges. Scheck agreed to take his case if Moses-EL could raise $1,000 for DNA testing.
Moses-EL scraped together the cash mostly from his fellow inmates who listened to him talk about his innocence day in and day out. In 1995, he won a court order to analyze several pieces of evidence – tests that may have proved his innocence that year. The Denver DA’s office failed to notify the police investigator about that court order. As city officials have explained it, that’s how the evidence in Moses-EL’s case – which was stored in a box labeled “DO NOT DESTROY” in Magic Marker — got thrown in a dumpster. Nobody in the DA’s office or police department was reprimanded for its destruction.
“When they told me that, when they said, ‘Moses, your evidence is gone,’ man, it took weeks – months — for me to believe it,” Moses-EL said.
Before his death, the lead police detective on the case, James Huff, explained that he always wondered whether Moses was guilty.
“I always have had doubts about this. I could never prove it either way,” Huff said in a sworn statement in 2005. “This is one of those cases where I really wish there was DNA.”
Morrissey ignored Huff’s statement when it was brought to his attention.
He also ignored obvious signs of L.C. Jackson’s possible involvement. Those signs came from Morrissey’s own office, which used DNA to crack the 1992 cold-case rape of a mother and daughter at knifepoint not far from the scene of the Moses-EL case. Even though the DA’s office was well aware as early as 2005 of Jackson’s pattern of sexual violence, Morrissey kept insisting, incorrectly, that Jackson was never named in Moses-EL’s case.
More than three years ago, Jackson sent Moses-EL a letter in prison.
“I have a lot on my heart,” he wrote. “Let’s start by bringing what was done in the dark into the light.”
After it took years for Moses-EL to have his appeal heard in court, Morrissey’s office vigorously tried to keep Jackson from testifying last summer – going so far as to send an investigator to, as Jackson said, try to intimidate him into recanting his confession. Jackson confessed nevertheless, admitting that he had rough sex with the victim in the Moses-EL case and beat her up at the exact time and place she said Moses-EL attacked her.
He was coming clean, he told the judge, to “make things right” with God.
It’s implicit in Judge Gerdes’s six-page ruling vacating Moses-EL’s sex-assault, burglary and 2nd-degree assault convictions today that she found L.C. Jackson’s sworn confession credible.
Gerdes is giving the lawyers 30 days to contact her chambers about setting a new trial. If Morrissey decides to re-prosecute Moses-EL, his office would face several major legal hurdles, including Jackson’s confession, new blood evidence that points to Jackson and not Moses-EL, and sworn testimony by Jackson’s then live-in girlfriend that Jackson had left their house during the time the victim was attacked a few doors away.
“Mr. Moses-EL has waited a long time for justice in this case,” said Gail Johnson, one of his lawyers. “We hope that he will soon be freed so he can return to his family, who have always believed in his innocence.”
On the phone from prison earlier today, Moses-EL said he’s trying to think positively and hopes Morrissey will drop the case rather than having a new trial. At age 60, he said, he has plenty of parenting and grand-parenting to do.
“I’ve got lots of time to make up for.”
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