Defendant's Attorney: Katherine M. Field for the City and County of Denver
Andrew David Ringel and Matthew Joseph Hegarty for Mitchell R. Morrissey, et al.
Description: Denver, Colorado civil rights lawyers represented Plaintiff who sued Defendants claiming that his constitutional rights were violated as a result of being arrested and convicted for a crime that he did not commit.
During the evening of August 15, 1987, T.S. attended a party at a friend's house, which was two doors from her own home in a Denver low-income housing project. At about 2:15 a.m., T.S. left the party and returned home. Soon after that, she fell asleep on her living-room couch with her infant child and toddler in arm's reach.
Minutes later, an assailant entered her home (apparently through a kitchen window) and repeatedly raped and severely beat her. The beating fractured T.S.'s facial bones and swelled her eyes shut. During the attack, T.S. temporarily lost consciousness.
After the assailant left, T.S. went to her sister's home, arriving at about 3:30 a.m. Her physical condition was such that her sister didn't immediately recognize her. At that time, T.S. described the physical attack, and her sister's boyfriend, Floyd Wesley Howard, called the police.
At about 3:50 a.m., the police arrived. T.S. told an officer "that she did not get a good look at [her attacker] because it had been dark and the lights were out." Joint App. Vol. 2 at 230. But she mentioned that two men at the party-"L.C. and Earl"- had slick-back, wavy hair, like the rapist. Joint App. Vol. 2 at 230. An ambulance then took T.S. to the hospital.
A few hours later, when T.S.'s sister asked who had attacked her, T.S. replied, "Darnell, Earl, L.C."-listing three men who had been at the party. Joint App. Vol. 2 at 228, 231. T.S. gave the police the same names.
More than a day later, while still in the hospital and medicated, T.S. had a dream in which she "re-lived" the attack. Joint App. Vol. 2 at 231. Based on that dream, she then identified Moses-EL-a neighbor who hadn't attended the party-as her attacker.
James Huff, a detective in the Denver Police Department, was assigned to investigate T.S.'s physical assault and rape. During his investigation, he learned of a feud between T.S. and Stephanie Burke, Moses-EL's then-wife.[2] The feud stemmed from a dispute between their two- and three-year-old boys. The hostility between T.S. and Burke led Detective Huff to question T.S.'s identification of Moses-EL. He conveyed these concerns to the Denver District Attorney's Office ("DA's Office") and memorialized them in a sworn statement. Even so, the Denver Police Department and DA's Office remained focused on Moses-EL.
Three days after the attack, the authorities arrested and charged Moses-EL with first-degree sexual assault, second-degree burglary, and second-degree assault. The Denver Police Department had earlier collected vaginal swabs from T.S., prepared a rape kit, and obtained some of T.S.'s clothing. Moses-EL alleges that he repeatedly asked his defense counsel to obtain DNA testing of this evidence, but his counsel refused.[3]
In the ensuing investigation, Dr. Kathren Brown (currently known as Dr. Brown-Dressel), a forensic serologist employed by the Denver Police Department, conducted blood-type testing from vaginal swabs collected from T.S. The swabs contained concentrations of semen and sperm. From her testing, Dr. Brown-Dressel reported to Detective Huff that no male, including Moses-EL, could be excluded as a suspect. Her laboratory notes preceding Moses-EL's first criminal trial summarized this conclusion: "Results-can't exclude anybody." Joint App. Vol. 2 at 241.
In April 1988, Moses-EL's case was tried to a jury. Dr. Brown-Dressel testified that T.S. was an O secretor and that Moses-EL was a B secretor. This meant that they would both have secreted antigens into their bodily fluids, such as vaginal fluid or semen. And these antigens would have revealed their blood types. Dr. Brown-Dressel testified that although the evidence showed the presence of an O secretor (which matched T.S.'s blood type), it contained no evidence of B antigens. Despite no B antigens in T.S.'s samples, Dr. Brown-Dressel concluded that these results just meant that she couldn't "exclude any males from depositing that seminal fluid." Joint App. Vol. 2 at 244. Moses-EL's counsel didn't offer competing expert testimony.
;Moses-EL did not testify at his trial. The jury ultimately convicted him on all three charges. The court sentenced him to 48 years on the sexual-assault conviction and 16 years each for the other two convictions, all to be served concurrently.
B. Moses-EL's DNA Exoneration Efforts
In August 1992, four years after his conviction, Moses-EL filed a pro se Rule 35(c) motion in Colorado state court, arguing that his trial counsel had provided ineffective assistance by choosing not to obtain DNA testing. The trial court denied the motion without a hearing. But in September 1993, the Colorado Court of Appeals reversed the trial court's decision and remanded the case for a hearing on the ineffective-assistance-of-counsel claim, as well as to determine whether the samples were still available for DNA testing.
On November 11, 1993, the Denver Police Department asked about the availability of the rape kit and clothing from T.S.'s 1987 assault and learned that the trial court still had them.[4] On November 20, 1993, the evidence was reentered into the Denver Police Department's Property Bureau to evaluate whether DNA remained available to analyze. That same day, Detective Huff received a memorandum updating him on this development.
At some point between 1993 and 1995, Moses-EL's counsel requested that the Denver Police Department and DA's Office preserve the evidence until Moses-EL could hire a laboratory to conduct DNA testing. Moses-EL then began raising funds from his fellow inmates. By 1995, he had raised the needed $1, 000 for DNA testing.
In May 1995, Robin Whitley, the Deputy DA assigned to Moses-EL's case, contacted Ann Perry, a serologist in the Denver Police Department. Deputy DA Whitley asked Perry to determine whether the crime-scene samples were still available and, if so, to preserve them.[5]
In July 1995, Perry determined that the samples were still available. Perry packaged the samples and prepared them for shipping to the DNA laboratory by putting them in a sealed box marked "DO NOT DESTROY." Joint App. Vol. 2 at 253. On July 19, 1995, Perry notated in a computer entry, "HOLD FOR DA ROBIN WHITLEY." Joint App. Vol. 2 at 253. Perry left the samples with the Denver Police Department Property Management Bureau. That ended Perry's involvement with the samples. Perry never advised Detective Huff of the need to preserve the evidence.
On October 5, 1995, R. Cubbage, a Denver Police Department Property Management Bureau Technician, sent Detective Huff a printout of the invoices of case evidence in the Department's possession and asked whether he should hold, destroy, or sell the evidence. Included within the listings in that printout was the evidence from T.S.'s attack.
On October 11, 1995, Detective Huff looked at the invoice and saw that it included evidence from an August 1987 case. He didn't read the "comments" section of the invoice, which stated: "HOLD FOR DA ROBIN WHITLEY." Joint App. Vol. 2 at 255. He assumed that the evidence would no longer be needed and marked it for disposal. The Amended Complaint includes this highlighted copy of the invoice:
(Image Omitted)
Joint App. Vol. 2 at 255.
Detective Huff later testified that the DA's Office usually advised him directly when evidence needed to be saved. But neither Perry nor Deputy DA Whitley told him of the need to "hold" this evidence. Detective Huff also testified that he didn't know that Moses-EL's case was still active. Notably, two years had passed since November 1993, when he had been notified that case evidence was being reentered into the Denver Police Department's Property Bureau.
On October 26, 1995, Deputy DA Whitley wrote a letter to Moses-EL's defense counsel advising him that the evidence was available to be picked up from the police department after the court signed an authorizing order. Deputy DA Whitley had apparently not checked to see that the evidence had been marked for disposal before notifying Moses-EL's attorney.
On November 2, 1995, the prosecution and defense jointly stipulated to the release and shipping of the rape kit and clothing to a lab in California for DNA testing. That same day, the court ordered the release of the evidence for testing which, Moses-EL asserts, required the defense to promptly ship it by Federal Express.
But Moses-EL's counsel didn't pick up the package for shipping that day. Instead, his attorneys deferred retrieving the evidence until they could obtain and include a saliva sample from Moses-EL.[6] Moses-EL's attorneys had to await his transfer "to a Denver facility" before they could get his saliva sample. Joint App. Vol. 2 at 258.
On December 3, 1995-after another month passed with Moses-EL's attorneys still failing to collect the package and send it to the laboratory for DNA testing- Cubbage, acting under standard procedure, retrieved the invoices marked for property destruction and had them destroyed. This included the evidence from T.S.'s attack.
In January 1996, Deputy DA Whitley learned that the evidence in Moses-EL's case had been destroyed. Soon after, someone from the government sent Moses-EL's attorneys a letter informing them of this development.
In April 1997, before the Rule 35(c) hearing, Dr. Brown-Dressel completed another report analyzing the serological evidence in Moses-EL's criminal case. In this report, she detailed her expected testimony and reiterated that she couldn't exclude any sperm-producing male as a suspect.
In May 1997, the district court again denied Moses-EL's Rule 35(c) motion.
C. Publicity on Moses-EL's Case in the Ensuing Years
In July 2007, The Denver Post profiled the evidence destruction in Moses-EL's case as part of an investigative series. In response, the DA's Office issued a press release in which the current District Attorney, Mitchell Morrissey, asserted that he had reopened Moses-EL's case, had personally reviewed it, and had spoken with the original prosecutors and defense counsel. Based on his review, DA Morrissey concluded "that everything that could be presented to a jury, or could be presented to a jury now, was presented at trial and considered by a jury." Joint App. Vol. 2 at 268 (brackets omitted).
In March 2008, a Colorado State senator sponsored and introduced Senate Bill 08-205, which Moses-EL alleges was inspired by his case. According to Moses-EL, as originally proposed, the bill would have entitled him to a new trial.
;Moses-EL alleges that DA Morrissey improperly opposed the bill by misrepresenting important facts about his case in testimony to the legislative committee and in statements to the media.
In the end, the state legislature passed a "watered-down version" of the bill that did not apply to Moses-EL's case.
D. L.C. Jackson
In April 2012, more than twenty years after T.S.'s assault, L.C. Jackson-one of the three men whom T.S. had originally identified as having been at the party- sent a letter to Moses-EL. The letter stated that Jackson had "a lot on [his] heart" and wanted to bring "what was done in the dark into the light." Joint App. Vol. 2 at 273. The Amended Complaint contains a reproduction of the letter:
(Image Omitted)
Joint App. Vol. 2 at 273.
Jackson began making admissions of partial culpability to Moses-EL's attorneys and investigators.[7] Jackson asserted that on the night of T.S.'s attack, he left his girlfriend's party at which he and T.S. had been drinking, entered T.S.'s home, engaged in consensual sexual intercourse with T.S., and then beat T.S. repeatedly after becoming upset with her. Based on this information, in December 2013, Moses-EL filed a second Rule 35(c) motion asking for a new trial.
In September 2014, the district court granted Moses-EL a preliminary evidentiary hearing based on his Rule 35(c) motion. At this hearing, Bonnie Benedetti, then the Chief Deputy DA, questioned the credibility of Jackson's admissions, noting that the statutes of limitations had run for the charged crimes. At Moses-EL's request, the district court issued a writ to bring Jackson from prison to court to testify in the upcoming Rule 35(c) hearing.[8]
In May 2015-before the scheduled Rule 35(c) hearing-Chief Deputy DA Benedetti and Jeffrey Carroll, an investigator with the DA's Office, visited Jackson in prison. There, Investigator Carroll issued Jackson a Miranda warning. After Jackson asked if he was under arrest, Investigator Carroll told him that he could face charges based on the admissions that he made. Along this line, Chief Deputy DA Benedetti told Jackson he could be charged with perjury. Jackson later claimed that their statements during the visit "[c]onfused" and "spooked" him. Joint App. Vol. 2 at 276. So that night, Jackson wrote a note recanting his earlier statements.
Three days after visiting Jackson, Chief Deputy DA Benedetti requested that the district court appoint Jackson his own counsel to protect his right against self-incrimination. She asserted that the DA's Office could still prosecute Jackson for kidnapping T.S., because, in Colorado, kidnapping has no statute of limitations.
In late July and early August 2015, the court held Moses-EL's evidentiary hearing. Jackson, now represented by counsel, returned to his earlier position: that he had consensual sex with T.S. and beat her after getting upset with her. Jackson also testified that he regretted writing the recantation note for Chief Deputy DA Benedetti and Investigator Carroll and had done so because they had intimidated him.
Moses-El v. City & Cnty. of Denver (10th Cir. 2022)
Outcome: Complaint dismissed.
Notice of Appeal, filed by Clarence Moses-El, 148 USCA Order/Opinion/Judgment : (USCA Case No. 20-1102) (sdunb, ) (Entered: 09/08/2022)
Plaintiff's Experts:
Defendant's Experts:
Comments: Moses-El also filed a claim for state compensation. In February 2019, newly-elected Colorado Attorney General announced that the state would not oppose $2 million in compensation, calling the case a "travesty of justice. Ultimately, Moses-El was awarded $2,304,979 in state compensation."