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Inmate Claiming Innocence Just May Have a Case : Justice: Son of alleged assault victim has recanted testimony. Shoddy investigation, it is contended, helped convict Cardiff man.

TIMES STAFF WRITER

Soledad State Prison is filled with criminals who say they were framed.

Kelvin Wiley might be just one more voice in the exercise yard claiming his innocence. But this 30-year-old Cardiff man who already has spent nine months behind bars has something going for him that most of the others don’t: A boy who admits lying on the stand. A writer who turned up witnesses the defense attorney never found.

And a prosecutor who said Tuesday he has reopened his investigation into the case.

“We don’t want to see an innocent man completing a prison term,” said Deputy Dist. Atty. Jeff Silver in Vista. “I want to consider the new facts that have come forward, investigate them, and verify them independently.”

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Wiley’s attorney plans to file papers in Vista Superior Court this week to get Wiley released from prison, where he has been serving a four-year term since April for assaulting his former girlfriend.

Wiley broke off with the woman in the fall of 1990, saying she was smothering him and demanding more attention than he could give her. And, after he dropped her, he said, she pursued him incessantly for the next two weeks--calling him at home, pounding on his front door, stalking him as he drove to work.

Finally came that Sunday morning, two weeks after the breakup, and the incident that resulted either in righteous conviction or the miscarriage of justice.

The thrice-divorced woman, Toni DiGiovanni, claimed in court that Wiley attempted to strangle her and left her to die on Sept. 23, 1990, in her Encinitas townhouse, two weeks after they broke up.

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Wiley, a design engineer who works on medical devices, contended he was home that Sunday morning watching a Chargers football game on television. He said DiGiovanni, whom he had dated for a year and a half, reacted to being jilted in a “Fatal Attraction” sort of way: by feigning her own strangulation, then pointing the finger at him.

Wiley was charged with attempted murder; the jury convicted him of assault in December, 1990. Testimony described Wiley’s violent outbursts--although he had no criminal record. But the most damning words came from the victim herself, corroborated by her 10-year-old son, who said yep, he saw Wiley’s pickup truck that morning in the cul-de-sac outside their home.

But that boy has now given sworn testimony recanting the story. He says he never saw Wiley’s truck that morning outside his home but made up the story to protect his mother. That now leaves only the testimony of the alleged victim herself, which, legally, is enough for a conviction, depending on whom the jury believes.

Furthermore, a neighbor who was never questioned by police or by Wiley’s then-defense attorney said that, on the morning of the attack, she saw a white man enter the victim’s apartment, but not Wiley, who is black.

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Based on the boy’s new statement, and the word of the new witness, court-appointed defense attorney Kevin McLean says he will ask Vista Superior Court Judge J. Morgan Lester to release his client from prison.

“Somebody is lying,” prosecutor Silver said of the case that essentially pits DiGiovanni’s word against Wiley’s. “That’s why we have trials.”

The first time the jury decided Wiley was lying, he said, but he is unsure whether the jury would come to the same conclusion in light of the new evidence.

“I’ve seen plenty of people go to prison who profess their innocence at trial and continue to even when they’re in prison,” Silver said. “The difference here is that Mr. Wiley has an attorney who’s still out there digging. You don’t often see recanting witnesses and new witnesses coming forward with new information.”

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Wiley greeted the news of the reopened investigation with caution. “Maybe now we’re getting somewhere,” he said.

“This whole case has been a roller-coaster, up and down, up and down,” Wiley said by telephone from Soledad. “I’m not bitter at the boy. He’s just victimized by his mother. And I don’t harbor any anger against Toni, either. She needs help, psychological help.”

Wiley isn’t counting the days before he might be released. “I have another year or so to go (to an early release thanks to good-time credit). I might still be here for the duration.

“If I’m going to be released, that means the system ultimately works. But I had to make it work by bringing attention to the facts. If I just lay down and did my time, nothing would have come of this.”

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Wiley was aggressive in claiming his innocence. He solicited the help of San Diego writer Colin Flaherty, who was smitten by Wiley’s claims of being done wrong.

Flaherty undertook his own investigation. He interviewed neighbors of DiGiovanni, friends of Wiley, and others who said they had never been interviewed by investigators from the Sheriff’s Department, the district attorney’s office or the county Public Defender’s Office, which represented Wiley at his trial.

Time and time again, Flaherty’s investigation, which he detailed in an article for the weekly San Diego publication The Reader last fall, raised issues about DiGiovanni’s credibility and the thoroughness of the investigation into the incident.

Flaherty, for instance, turned up the neighbor who said she saw the white man, not Wiley, visit DiGiovanni that morning. And he spoke to Wiley’s apartment manager, who said that he never saw Wiley’s truck leave his home that Sunday morning, substantiating Wiley’s own claim that he was plopped in front of the TV set.

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“I don’t know in my own mind if the crime was staged or they have the wrong guy, but I’m convinced the police didn’t do a proper investigation, and the defense didn’t conduct a proper investigation,” Flaherty said.

Defense attorney John Jimenez of the Public Defenders office in Vista said he could not talk about the case--or defend himself against claims of shabby investigative work--because the case is being appealed.

Jimenez is the attorney who, last year, won the freedom of another client, a popular Oceanside athlete who was arrested and convicted of robberies. After his client was jailed, Jimenez’s investigators found that their client was the victim of mistaken identity, and the district attorney’s office agreed it had gotten the wrong man.

The turning point in Kelvin Wiley’s case may well be the decision by the boy, now 11, to recant his story.

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The boy lives with his mother, who moved to Las Vegas after the trial and could not be reached for comment.

When the boy was in San Diego a month and a half ago visiting his maternal grandparents, he confided in them that he had lied at Wiley’s trial, said attorney Mark Hansen, whom the grandparents contacted for advice.

“With time, his conscience worked away at him, and he realized he hadn’t done the right thing,” Hansen said.

“The boy confided in his grandparents, and they encouraged him to do the right thing, which was to admit he told a lie and to correct it,” Hansen said. That was last Thanksgiving--11 months after Wiley was convicted.

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When the boy revisited his grandparents for Christmas, he officially recanted the story under oath.

The recommendation to have the boy offer his new testimony behind his mother’s back “was something I struggled with,” Hansen said, “and a decision I’ll live with. But I feel we handled it the right way, and (the boy) was very relieved afterward.”

The youngster said he manufactured his story “to protect his mother. She told him that Kelvin Wiley was the one who harmed her, and he believed his mother, and his mother had led him to believe there may be some danger if Kelvin was not convicted,” Hansen said.

There was no indication, Hansen said, that DiGiovanni instructed her son to lie about the truck. The boy was in the neighborhood but not inside his mother’s townhouse at the time of the incident.

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McLean, who was appointed by the court to handle Wiley’s appeal before the new evidence came out, said he is incorporating the recanted testimony and the additional witnesses into a writ of habeas corpus which he hopes to put before Judge Lester this week.

The writ would claim that an innocent man is behind bars and should be released promptly.

Wiley said he had felt confident before his trial, after he met with attorney Jimenez, that his defense was in good hands.

“My parents were willing to mortgage their home so I could hire my own attorney, for $25,000,” Wiley said. “But I didn’t think the case would get that far. Jimenez seemed positive and confident and ready to jump in, so I told my parents not to worry.”

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In retrospect, Wiley said, he felt he got short shrift by the lack of a defense investigation--one that failed to turn up the witnesses that writer Flaherty did on his own, a year later.

Flaherty’s article, Wiley said, turned things around for him.

“I give credit to Mr. Flaherty for giving me the benefit of the doubt that maybe I was innocent. That opened my (attorney’s) eyes, who dug even deeper.”

Still, Wiley remains in prison, convicted of assault. He is still guilty of assault, until judged otherwise.

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Silver, the deputy district attorney, says he’s wary of reacting too quickly to the new information coming his way that suggests Wiley’s innocence.

“I don’t want to be taken advantage of,” he said. “Some of this information might not check out, and it may turn out there are other motives behind the boy coming forward.”

He said he will interview the new possible witnesses and the boy himself and, eventually, confront Toni DiGiovanni about the new evidence.

“We’ll take it from there,” he said.

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