Colorado Senate Majority Leader Ken Gordon can’t shake his belief that Clarence Moses- EL is innocent of the rape charges that have kept him behind bars for the past 20 years.
Gordon can’t shake the notion that the victim said Moses-EL’s face came to her in a dream. He can’t shake the knowledge of Denver police tossing the DNA evidence into a Dumpster after a judge’s order to preserve it.
And he especially can’t ignore the old serology analysis that showed Moses-EL’s blood type was different from what was found in semen swabbed from the victim’s body.
Gordon, a former defense attorney, had no role in the case. But after immersing himself in the trial transcripts, the 16-year lawmaker is poised to create legislation giving a new trial to Moses-EL and any other prisoners who might have been prevented from pursuing DNA tests because their case evidence was lost.
The condition: A judge must have ordered it preserved.
“There should not be a wrong without a remedy,” Gordon says.
It’s a law that might have only one beneficiary: Moses-EL. Last year, a Denver Post survey of defense attorneys turned up no other examples where all the biological evidence in a case was discarded after a court order.
State law and current legislative proposals provide no remedies for evidence destruction, although Gordon, D-Denver, and a gubernatorial task force are seeking to require retention of DNA evidence in major felonies for the life of the defendant.
A spokesman with the Colorado attorney general’s office declined to comment on Gordon’s plans until the bill’s language can be reviewed. Gordon said he expects to submit the legislation this week.
Denver District Attorney Mitch Morrissey has refused to reopen the Moses-EL case at the request of new defense attorney Trip DeMuth — even though Morrissey’s office prosecuted a man named LC Jackson, initially identified as a suspect by the victim in the Moses-El case, last year for a rape 18 blocks away.
Morrissey declined to comment on Gordon’s effort.
Five Points attack
The Moses-EL case began in 1987, when a woman was attacked in her Five Points apartment after falling asleep on her couch. She initially mumbled the names of the three men she had shared drinks with that night — “LC, Earl, Darnell” — as being responsible.
Later at the hospital, where a rape kit was collected for biological specimens, including sperm, the victim named Moses-EL, a neighbor she knew as “Bubbles,” as the rapist. She said she could see the man’s profile and hear his voice during the rape and that when she relived the attack in a dream while asleep in the hospital, she realized the man was Moses-EL.
From that point, she didn’t waver on the stand in her identification of Moses-EL. No physical evidence ever linked him, or anyone else, to the crime.
Based on her testimony and prosecutors’ ability to cast doubt on witnesses who contended Moses-EL was at home during the assault, he was convicted.
But Moses-EL claimed his innocence from the beginning. And although DNA analysis was available, his defense attorneys never pursued it to determine whether the semen found on her belonged to him.
Authorities did perform blood typing on the sample, discovering a blood group different than Moses-EL’s. But his lawyers did not cross-examine the prosecution’s forensic expert, who called the blood test inconclusive, about that discrepancy. Nor did they call their own scientist to explain how the results tended to exclude Moses-EL, according to DeMuth, who describes the mistake as fatal to his client’s defense.
“Why . . . didn’t the defense attorney cross-examine at trial on this issue? It could have raised reasonable doubt in jurors’ minds.”
Any chance that the sample could be retested using advanced DNA tests was upended when Denver police threw away the rape kit and victim’s clothing in 1995.
Money collected for lab work
The move came after Moses-EL had collected $1,000 from fellow inmates for the lab work. It also came after he won a judge’s order to preserve the evidence. Morrissey contends that Moses-EL’s attorneys cannot place sole blame on Denver police because the evidence purge came weeks after the court order, giving his lawyers time to pick it up.
On appeal, Moses-EL cited the lost evidence in seeking a new trial. But he was refused based on oft-criticized Supreme Court precedent that requires bad faith be proved before relief is granted. Colorado law, which flows from that standard, also provides no duty to preserve DNA evidence, and thus no remedies for losses.
But Gordon believes the evidence destruction does rise to a constitutional violation that should be addressed through a statute.
Additionally, the serology discrepancies, the “dream” testimony, the flawed victim eyewitness ID and no indication of an inquiry into LC Jackson justifies a new trial, at the very least, for Moses-EL, Gordon reasons.
Clutching a Denver Post documentary on CD chronicling Moses-EL’s case, the Democratic lawmaker has walked the state Capitol corridors in recent weeks, staging private viewings and collecting backers for a bill. No colleague has yet to oppose his effort, he says.
He also intends to meet with Morrissey.
The DA, who has championed the use of DNA in winning convictions, downplayed the value of the lost DNA evidence to Moses-EL’s innocence bid during an interview with The Denver Post last year.
“The defendant has had his day in court,” Morrissey said.
Miles Moffeit: 303-954-1415 or mmoffeit@denverpost.com
CLARIFICATION: Regarding Denver District Attorney Mitch Morrissey’s action in the case of Clarence Moses-EL. Morrissey has reviewed transcripts of the proceedings, interviewed prosecutors assigned to the case and requested a new search for the lost evidence, according to his spokeswoman.
