Conviction Vacated in 28-Year Innocence Case

Susan Greene, Colorado Independent December 15, 2015

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. (http://www.coloradoindependent.com/156659/conviction-vacated-in-28-year-innocence-case)

This arti­cle orig­i­nal­ly appeared on the Col­orado Independent

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 withThe 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.”

A recov­er­ing news­pa­per jour­nal­ist and Pulitzer final­ist. Her crim­i­nal jus­tice report­ing includes Trash­ing the Truth,” with Miles Mof­feit, and The Gray Box.” susan@​coloradoindependent.​com | 7202958006 | @greeneindenverThis arti­cle orig­i­nal­ly appeared on the Col­orado Independent
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