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Conviction Set Aside as Boy Recants : Justice: Judge tosses out guilty verdict in case of man who spent 1 1/2 years in state prison.

SPECIAL TO THE TIMES

A judge Wednesday set aside Kelvin Wiley’s conviction on charges that he tried to strangle a girlfriend with a belt.

Superior Court Judge J. Morgan Lester ruled that false testimony by the woman’s 11-year-old son, and missing key witnesses, had wrongly put Wiley in prison for 1 1/2 years.

“Prison was a nightmare,” said Wiley, 30, of La Costa, who claims he was the victim of revenge by a jilted lover. “You’re among violent, degrading human beings--society’s worst. . . . Now we’re getting to the truth and clearing my name.”

Wiley was released from Soledad State Prison in February after the boy recanted testimony that he saw Wiley’s truck parked outside the boy’s Encinitas townhouse on the morning that his mother, Toni DiGiovanni, was found on the floor, choking with a belt around her neck.

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“I said I saw Kelvin’s truck because I wanted to protect my mom,” the sixth-grader said in a taped interview with a district attorney’s investigator that was played in court Wednesday. “The true thing is, I didn’t see Kelvin’s truck.”

On the tape, recorded in January, the boy says he was visiting his mother’s parents for Thanksgiving last year, when the subject of honesty came up in conversation.

Feeling guilty, he told his grandparents the truth, he said, even though he still believed his mother’s assertion that Wiley attacked her.

By the time the boy admitted his lie, Wiley had already spent nearly a year behind bars.

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San Diego writer Colin Flaherty also helped Wiley’s cause, rooting out several new witnesses, including a neighbor who said she saw DiGiovanni let a chubby blond man into her house the morning she was assaulted. Wiley is black.

As Wiley sat in the nearly empty courtroom with his court-appointed attorney, Judge Lester said he probably wouldn’t have been convicted without the child’s lie, and with the missing witnesses.

“I’ve been at this a long time and it appeared to me the boy was very credible,” Lester said. “He was clean-cut and didn’t appear to be under the thumb of his mother.”

Lester’s ruling paves the way for the district attorney’s office to refile charges against Wiley if it chooses.

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Because the conviction was “vacated"--essentially wiped out- double jeopardy rules do not apply and Wiley can be tried again for the same crime, attorneys said.

Deputy Dist. Atty. Laura Tanney said the case will be sent to the state attorney general’s office for review before a decision is made on refiling it.

Wiley maintains that the thrice-divorced DiGiovanni accused him of attacking her because he was trying to end their stormy 18-month relationship.

He said DiGiovanni sent him crude notes, slashed his tires and stalked him. He said he attempted to get a restraining order from her a day before the assault, but went to the wrong agency.

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He admits that the two fought and that DiGiovanni once called the police and had him hauled off in handcuffs. But he says they never came to blows.

“I’ve never hit a woman in my life. Never,” said the tool designer. “And I despise any man who would.”

The night before the Sept. 23, 1990, assault, Wiley said, he declined a dinner invitation from DiGiovanni, but the two met accidentally at a bar. Wiley was with a female friend.

He said he found an obscene note from DiGiovanni on his door early the next morning, and later was arrested for the assault.

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DiGiovanni and her son were absent from Wednesday’s hearing. Defense attorney Kevin McLean said attempts to find and subpoena the pair were unsuccessful.

After the hearing, McLean criticized the police and defense investigations and suggested that, “If Wiley had been a white prosecutor, they might have done a lot more investigation.”

Wiley says he is considering a lawsuit to compensate him for his time in prison.


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