The law may give him a new chance

Times Staff Writer

The evidence from a 1987 rape sat securely in police storage for eight years.

Then a judge ruled it could be tested to see if new technology might resolve whether DNA on it came from the man convicted in the assault.

One month later a detective, who later testified he didn't realize there was a court order protecting the evidence, gave the OK to destroy the rape kit and victim's clothing. They went in the trash.

So, seemingly, did any chance for Clarence Moses-El to prove that the DNA of the attacker was not his.

Now, 13 years later, a Colorado state senator is proposing legislation he believes would right a wrong: by giving a new trial to Moses-El and any other prisoner whose evidence is destroyed after a judge orders it preserved.

Colorado Senate Majority Leader Ken Gordon recently visited Moses-El, 52, in an eastern Colorado prison to deliver the news. "I didn't know if I could help him, but I was going to try."

Gordon, a Democrat from Denver, is a former defense attorney who has been a state lawmaker for 16 years. An attorney for Moses-El convinced him the case warranted legislative attention.

Preserving evidence

Gordon's proposal comes at a time when Colorado and other states -- rattled by high-profile exonerations of convicted murderers and rapists, made possible by new DNA testing in old cases -- are looking for ways to guard against wrongful convictions, such as by saving biological evidence longer and more carefully and by improving eyewitness identification procedures.

Wyoming is considering a bill to allow inmates to challenge their convictions through DNA testing; Vermont passed a similar law last year. Georgia and West Virginia are studying how to improve eyewitness identification practices -- which California considered last year.

About half of states in the country have laws requiring the preservation of evidence. Most were passed in the last decade as states have tried to keep pace with scientific advancements that allow for tests that weren't possible before the 1990s.

But the laws vary widely in the length of time they require the evidence to be saved, said Rebecca Brown, policy analyst for the Innocence Project, which seeks to exonerate wrongly convicted people through DNA testing. Some, including California, call for the evidence to be saved for the length of the inmate's sentence. Others say the evidence can be thrown away when the appeals process ends.

Such matters are contentious. Prosecutors say they want to guard against convicts who would abuse the system, forever challenging verdicts and traumatizing victims.

For police, the issue is managing ever-growing piles of evidence. "It's a warehousing nightmare," said Joe Latta, executive director of the International Assn. for Property and Evidence. "I'll keep it as long as you want, but give me a place to put it."

Colorado law does not require evidence to be saved. But that could change; a bill introduced last week would compel police to save DNA evidence in major crimes for the length of the inmate's sentence.

Gordon's legislation addresses situations in which key evidence is destroyed after a judge has ordered it preserved. Gordon said he knows of only one person the law would benefit -- Moses-El, now serving a 48-year sentence for his conviction in the 1987 rape of a Denver woman.

Questions arose

Gordon and Trip DeMuth, an attorney who has represented Moses-El for the last six years, say the case against him was never strong.

They point to the fact that the victim did not immediately identify him as her attacker, but rather spoke the names of three men she'd been with earlier in the night.

A day and a half later, she named Moses-El, whom she knew, as the rapist. "She admitted under oath his face came to her in a dream," DeMuth said.

DeMuth said several factors make the victim's identification of Moses-El unreliable: She had poor eyesight, was attacked in a dark room and was struck in the eyes.

Moreover, DeMuth said, Moses-El's blood did not match the sample taken from the victim; he had Type B blood, and the sample from the victim appeared to be Type O. But the public defender didn't challenge that during the trial, DeMuth said.

The lab analysis at the time was inconclusive, said Denver Dist. Atty. Mitch Morrissey, whose office prosecuted Moses-El.

Morrissey said trial testimony indicated that the victim -- who was so badly injured that she did not remember talking to police that night -- did not name the three men as suspects, but rather as people she'd spent time with that night.

He noted that all of the issues DeMuth raises were considered by the jury that convicted Moses-El. He said he had reviewed the case but found no grounds for a new trial.

In the mid-1990s, Moses-El's attorney discovered that the biological evidence still existed and asked a judge for permission to test it. The judge granted the request and ordered the evidence to be saved. Moses-El raised $1,000 from other inmates to pay for the test. But when his attorney went to pick up the evidence, it was gone.

His attorney asked for a new trial, saying his rights had been violated. A trial court judge and three appeals court judges denied the request, ruling that the destruction of evidence didn't violate his rights because it had been unintentional.

DeMuth appealed to legislators to change the law. Gordon agreed with DeMuth that the case was weak. He also felt Moses-El shouldn't be penalized for the loss of the evidence.

"If we have the opportunity to correct those injuries, we should," Gordon said.

Prosecutors said they couldn't comment on the bill because they hadn't read it, but emphasized their concerns about inmates abusing the system and forcing victims to relive their trauma.

"The verdict needs to be final unless there's a very compelling reason -- that being actual innocence," said Ted Tow, Colorado District Attorneys' Council executive director.

The law that allows for a new trial only if evidence destruction is in bad faith "is well-established in the U.S.," Morrissey said. In this case, he said, the destroyed evidence might have yielded inconclusive results. Or "it could prove he did deposit a bodily fluid. Or it could've shown someone else was responsible."

A test would have done the latter, Moses-El said in a statement from prison. "It would have proved my innocence," he wrote.

Even in the absence of that evidence, Gordon and DeMuth are optimistic that a new trial could result in acquittal. So is Moses-El, but guardedly so.

"The gates of the prison have not opened for him yet," DeMuth said.

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