The Denver District Attorney's office is moving forward re-prosecuting Clarence Moses-EL for an attack to which another man has confessed.
Mitch Morrissey's chief deputy convinced the judge Wednesday that, in a trial scheduled to begin May 16, jurors shouldn't hear evidence about two key aspects of the case:
- That Moses-EL served 28 years in prison for the assault before the judge ruled to lift his convictions in December
- And that Denver police tossed all the DNA evidence in a dumpster
“Sympathy has no place in a criminal trial,” said Denver District Judge Kandace Gerdes in ruling that the case must be decided only on the evidence of the 1987 attack and not on the jaw-dropping series of events in the nearly three decades Moses-EL has spent trying to prove his innocence ever since.
If the case goes to trial, as scheduled, Denver jurors will be carried back to the summer Ronald Reagan nominated Robert Bork to the Supreme Court, hippies celebrated the Harmonic Convergence and Michael Jackson released his album, “Bad.”
That , after 2:00 a.m. on an August night, was when someone entered the public housing unit of a woman in Denver's Five Points neighborhood. The victim had been at a neighbor's drinking before she returned home and, in the dark, was burglarized, sexually assaulted and hit so hard she permanently lost use of one eye.
In her outcry to the police later that night, she named three men as her possible attackers – “LC, Earl and Darnell,” the men with whom she had been drinking. None was questioned as a suspect because, about a day and a half later, the victim told police that Moses-EL was her assailant. His identity, she said, had come to her in a dream.
Based solely on the victim's identification, and with no other witnesses or physical evidence tying him to the attack, Moses-EL was convicted and sentenced to 48 years in prison.
He maintained his innocence from the day he was arrested. From behind bars in the early 1990s, he convinced O.J. Simpson's lawyer Barry Scheck to aid in his innocence claim by having evidence tested for DNA fingerprinting – technology that wasn't available when Moses-EL was tried in 1988.
Mostly in contributions from fellow inmates, Moses-EL raised $1,000 to test the rape kit, bed sheets, clothing and other evidence from the attack. Police had packaged those items in a box they marked “DO NOT DESTROY.” Then, because officers and district attorneys failed to communicate, police tossed the box in a dumpster.
At that point, in the mid-1990s, Denver's District Attorney's office fought Moses-EL's quest for a new trial despite its partial culpability in trashing his evidence.
The office continued refusing to reopen the case in 2007 when it prosecuted L.C. Jackson – the first man named by the victim in Moses-EL's case – for the 1993 cold case rapes at knifepoint of a mother and her 9-year-old daughter. The two attacks are similar in many ways. But Morrissey kept insisting, incorrectly, that the victim in the Moses-EL case never named Jackson as her attacker.
In 2013, Jackson contacted Moses-EL in prison saying that his heart was heavy with guilt.
“Let's start by bringing what was done in the dark into the light,” Jackson wrote.
Morrissey's office fought for nearly two years to keep Jackson from confessing in court. But Gerdes ordered a hearing last July in which Jackson admitted to having rough sex and beating up the victim in the Moses-EL case at the same time and place of her attack. Jackson's girlfriend at the time of the attack testified that he had, in the middle of the night, stepped out of their home a few doors down from the victim's. And a forensic expert also testified that it's highly likely that someone with Jackson's blood type was the attacker, and highly unlikely that it was someone with Moses-EL's blood type.
Based on those testimonies, Gerdes lifted Moses-EL's conviction in December. Days after his 60th birthday, and just before Christmas, he walked free on bond and now is living in Commerce City with his wife and grandchildren, trying to rebuild his life.
“It's coming together,” he told The Colorado Independent. “I always knew it would.”
Morrissey, in the meantime, seems hellbent on re-trying Moses-EL despite Jackson's confession. His office says Jackson is now denying he had sexual contact with the victim and that it has a duty to the victim to continue prosecuting Moses-EL.
At Wednesday's pre-trial hearing, Moses-EL's lawyers tried for a second time in that many months to convince Judge Gerdes that Morrissey's office should be disqualified from the case. They argued Moses-EL couldn't get a fair trial because of Morrissey's unwillingness to admit that by not having questioned and prosecuted Jackson years ago, his office failed to stop Jackson from rapes it could have prevented.
Defense attorney Gail Johnson argued the D.A.'s office has “a vested interest in covering up the fact that they let a serial rapist, LC Jackson, stay on the streets.” About Morrissey himself, she added that he has an “interest in not being the man that allowed this travesty to occur for decades.”
Morrissey's chief deputy Bonnie Benedetti came to her boss' defense.
“As it relates to the allegation that Mitch Morrissey has a personal interest in this case, frankly this has become a kind of outrageous allegation,” she said. “To continually say that this is somehow a personal vendetta of Mitch Morrissey is simply without basis.”
Judge Gerdes – who for years worked with Benedetti as a prosecutor in Morrissey's office – rejected the request for a special prosecutor, as she did an earlier request last month.
Both sides argued about what jurors should know if the case goes to trial as scheduled in less than five weeks.
Defense attorney Eric Klein warned that jurors would be confused about why the case is being tried 29 years after the attack, and why DNA test results aren't being presented at trial. He said the fact that Moses-EL not only sought DNA testing, but also asked fellow inmates to pay for it, are a strong indication of his innocence.
“These are actions that we submit that a guilty man would not take,” he argued. “It's our position that Mr. Moses-EL should have been out of prison 20 years ago when that DNA testing did not happen.”
“We want the jury to have the facts of this case… This is a truth seeking process,” Klein continued. “He should have a right to show the thoroughness of his efforts to prove his innocence.”
Benedetti countered that it would prejudice the jury to hear that Moses-EL already spent 28 years in prison on this case. And she said it would unfairly tug on jurors' emotions that police destroyed the DNA evidence.
“The fact that Mr. Moses-EL has been in custody is not relevant,” she argued. “The people would indicate that we believe there should be no history regarding the case.”
Again, Judge Gerdes ruled in favor of the prosecution. The whole sad story, she said, could unfairly prejudice the trial.
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