Professional Documents
Culture Documents
Clarence Moses-EL v. The City and County of Denver, Et. Al.
Clarence Moses-EL v. The City and County of Denver, Et. Al.
CLARENCE MOSES-EL,
Plaintiff,
v.
Defendants.
________________________________________________________________________
Klein, Amy Kapoor, and Aurora L. Randolph of Johnson & Klein, PLLC, hereby submits
I. INTRODUCTION
1. On August 18, 1987, Clarence Moses-EL, age 32, walked out of his front
door for what would be the last time for almost three decades. He started riding his bike
through Denver with his 3-year-old son Anthony Burke on his handlebars, not knowing
that he would be unable to share another ride with his young child ever again because he
was about to be arrested for a brutal sexual assault he did not commit.
2. Mr. Moses-EL was wrongfully convicted and imprisoned for more than 28
evidence, and prosecutors blinded by the desire to obtain and maintain convictions
regardless of the truth left Mr. Moses-EL in the cross-hairs of a powerful criminal-justice
3. The crimes for which Mr. Moses-EL was wrongfully convicted involved a
brutal sexual assault and physical beating of a woman in her own home in the middle of
the night. There is not now and never has been any physical evidence that Mr. Moses-EL
4. The sole reason Mr. Moses-EL was ultimately arrested and prosecuted for
these crimes was the victims dream-induced identification of him while she was on
medication at the hospital. But there were many other reasons why that identification
was unreliable.
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5. When police first interviewed the victim at her sisters house near the scene
of the crime, she said she had not gotten a good look at her attacker because it had been
too dark.
explaining that it was the same hairstyle as that of two men she had been drinking with
that night, one of whom was a man named L.C. Jackson. (The hairstyle she described did
7. Mr. Moses-EL lived in the victims neighborhood and was known to the
before her dream did the victim say that her attacker was Bubbles.
8. To the contrary, at the hospital, when pressed by her sister and then the
police to identify who had attacked her, the victim repeatedly identified three men she
9. It was only while she was under medication in the hospital, following a
dream in which she believed that she had re-lived the attack, that the victim awoke and
was the fact that the victim had been publicly feuding with Mr. Moses-ELs girlfriend.
The Denver Police Department and the Denver District Attorneys Office (Denver DAs
Office) were well aware of this bad blood. Defendant Detective James Huff, a Denver
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Police Department Detective who investigated the case, later revealed that due to the
conflict between the victim and Mr. Moses-ELs girlfriend, he had always had doubts
11. The man who did commit the crimes against the victim was L.C. Jackson.
Mr. Jackson was one of the three men the victim had identified, and he was one of two
men she said matched the physical description of the perpetrator. He also had a history
of committing sexual assaults. Despite all this, the Denver Police Department and the
Denver DAs Office failed to investigate Mr. Jackson as a suspect, instead doggedly
pursuing Mr. Moses-EL based on nothing more than an identification that was patently
unbelievable.
12. Despite a lack of probable cause, Mr. Moses-EL was charged with first-
degree sexual assault with serious bodily injury in violation of Colorado Revised Statutes
13. Beginning immediately after his arrest, Mr. Moses-EL sought to exonerate
himself through the collection and testing of physical evidence. While pending trial at
the jail, Mr. Moses-EL asked his attorney, a deputy public defender, to have DNA testing
conducted on the biological evidence that had been collected from the victim and her
home immediately following the rape. But the public defender refused to pursue any
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DNA testing, because his supervisors in the public defenders office believed that the
every case. And at trial, the forensic serologist presented by the Denver DAs Offices
misled the jury by opining in a misleading manner that there was no way Mr. Moses-EL
14. Because the Denver Police Department and the Denver DAs Office
focused their investigation on Mr. Moses-EL and failed to investigate L.C. Jackson as a
suspect in the August 1987 sexual assault against the victim, Mr. Jackson was left at
liberty to victimize other members of the Denver community. And he did just that. In
November 1987, Mr. Jackson burglarized the home of his aunt in Denver. Around 1992,
Mr. Jackson choked his then-girlfriend so hard the blood vessels in her eyeballs burst. In
1992, just about a mile away from the Denver location where he had sexually assaulted
and beat the victim in Mr. Moses-ELs case in her own home in the early morning hours,
Mr. Jackson raped a middle-aged woman and her nine-year old daughter in their
respective bedrooms in the upstairs of their home at around 2:30 a.m. And around 1997,
Mr. Jackson sexually assaulted another young girl in Denver, the daughter of a girlfriend
years fighting in the courts to obtain the ability to conduct DNA testing to exonerate
himself. In November 1995, he finally won, obtaining a court order requiring the Denver
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Police Department to preserve the biological evidence in the case for defense DNA
testing. Mr. Moses-EL had raised the money for the DNA test from other inmates in the
DOC.
16. But in December 1995, before the DNA test that would have exonerated
Mr. Moses-EL was conducted, the Denver Police Department destroyed all of the
biological evidence from the case. This was part of a pattern of their mishandling gravely
important evidence. All hope for Mr. Moses-ELs exonerationand for the conclusive
17. In 2006, the Denver DAs Office successfully prosecuted L.C. Jackson for
the sexual assaults of the mother and daughter that he had committed in Denver in 1992.
Ironically, the Denver DA Offices prosecution of Mr. Jackson for these 1992 rapes was
18. Although the Denver DAs Office knew that Mr. Jacksonone of the men
identified by the victim in Mr. Moses-ELs casewas a violent rapist, they did not re-
open the investigation into Mr. Moses-ELs case and did not investigate whether Mr.
Jackson was the true perpetrator of the crimes for which Mr. Moses-EL had now spent
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19. In 2008, Mr. Moses-EL was given a glimmer of hope when state legislators
took notice of the injustice of his case and began a legislative effort to provide him, and
others who had material evidence in their case destroyed, a new trial.
20. Mr. Moses-ELs moment of hope that the truth in his case would yet be
revealed was short-lived. Defendants Morrissey and Whitley used their political power
Moses-EL a new trial. These lies had their intended effect, causing state legislators to
pass only a watered-down version of the bill that did not apply to Mr. Moses-ELs case.
21. In April 2012, after Mr. Moses-EL had served 25 years of his sentence, he
received a letter from Mr. Jackson suggesting that he was ready to reveal information that
would be useful to Mr. Moses-ELs defense team. Over the course of several years, Mr.
Jackson repeatedly made multiple admissions that implicated himself in the crimes for
22. In December 2015, based on this and other newly-discovered evidence, the
Denver District Court vacated Mr. Moses-ELs convictions and granted him a new trial.
23. The Denver Police Department and the Denver DAs Office were then
forced to confront the fact that as a result of their woefully inadequate investigation, their
malicious prosecution of Mr. Moses-EL, and their continued efforts to keep Mr.
Moses-EL in prison, an innocent man was wrongfully imprisoned for more than 28 years
while a serial rapist had remained free to victimize Denver women and children.
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24. Defendants used every tacticboth legal and illegalto try and cover up
the decades of injustice perpetrated against Mr. Moses-EL. Defendants Benedetti and
Carroll intimidated Mr. Jackson into falsely recanting his admissions of culpability and
manufactured evidence to create probable cause against Mr. Moses-EL for a second trial
for the same crimes. Defendant Morrissey, having ultimately failed to stop Mr.
Moses-EL from receiving a new trial, and facing public pressure to drop the charges,
spread false information to the media and the public about the facts of the case.
the victim in the hospital, and notwithstanding the fact that a man she had previously
identified as her assailant had admitted to a violent sexual encounter with her at her home
at the time of the attack, the Denver DAs Office brought Mr. Moses-EL to a second trial
for the 1987 attack. On November 14, 2016, a Denver jury found Mr. Moses-EL not
26. This action arises under the Constitution and laws of the United States and
to 28 U.S.C. 1331. Jurisdiction supporting Mr. Moses-ELs claims for attorneys fees
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because all of the events relevant to the claims contained herein occurred in the State of
Colorado.
III. PARTIES
29. Defendant City and County of Denver was at all times relevant herein a
municipal entity created and authorized under the laws of Colorado. Defendant City and
County of Denver was, at all times relevant herein, authorized by law to maintain and did
maintain a police department known as the Denver Police Department. Defendant City
and County of Denver is responsible for the supervision, training, official policies,
customs, and actual practices of its agents and the Denver Police Department.
Colorado. He acted under color of law and in the scope of his employment when
engaging in the actions and omissions alleged in this Complaint. He is sued in his
individual capacity.
31. Defendant Bonnie Benedetti is a Chief Deputy District Attorney for the
Denver DAs Office in Denver, Colorado. She acted under color of law and in the scope
of her employment when engaging in the actions and omissions alleged in this
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32. Defendant Robin Whitley is a former Deputy District Attorney for the
Denver DAs Office in Denver, Colorado. He acted under color of law and in the scope
of his employment when engaging in the actions and omissions alleged in this Complaint.
Denver DAs Office in Denver, Colorado. She acted under color of law and in the scope
of her employment when engaging in the actions and omissions alleged in this
34. Defendant Jeff Carroll is an investigator for the Denver DAs Office and a
former Denver Police Department Detective in Denver, Colorado. He acted under color
of law and in the scope of his employment when engaging in the actions and omissions
Investigation and Denver Police Department Forensic Serologist. She acted under color
of law and in the scope of her employment when engaging in the actions and omissions
under color of law and in the scope of his employment when engaging in the actions and
omissions alleged in this Complaint. He is sued in his individual capacity. Because Mr.
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Serologist. She acted under color of law and in the scope of her employment when
engaging in the actions and omissions alleged in this Complaint. She is sued in her
individual capacity.
38. On the night of August 15, 1987, in Denver, Colorado, a group of people
were drinking alcohol at the home of Pamela (Poo-Poo) Sanders. The group at Ms.
Sanderss home included Ms. Sanderss close friend and neighbor, T.S.; Ms. Sanderss
then-boyfriend, L.C. Jackson; his brother Earl; and a man named Darnell. Ms. Sanders
lived in an attached unit of a low-income housing project, only two doors down from the
similar unit that was T.S.s home. L.C. Jackson was living at Ms. Sanderss home at that
time, and knew that T.S.s home had a similar floor plan.
39. T.S., a 411, 98-pound woman, had been drinking alcohol all evening and
continued to drink malt liquor at Ms. Sanderss party until around 2:15 am the next
morning, August 16, 1987. She drank at least five or six Schlitz Malt Liquor Bulls until
41. When she arrived home, T.S. was alone in the house with her two young
children, who were six months and two years old. Her boyfriend at the time was
1
This Complaint refers to the victim by her initials, T.S.
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allegedly in Georgia. T.S. was someone who believed she had premonitions or visions
that came true. She had recently had a premonition that something bad was going to
happen to her while her boyfriend was away. Therefore, she and the children were
42. Upon arriving home, T.S. took off her glasses and lay down on the couch in
the living room to sleep. She got up to go vomit and then lay back down.
43. All the lights were off, and the house was dark.
44. T.S. was extremely nearsighted, and her glasses were very thick. Without
45. While she was lying on the couch in the dark, an unseen person started
beating her so severely that several bones in her face were fractured, her eyes swelled
shut, and she was knocked unconscious. When she regained consciousness, the attacker
was choking her. He repeatedly sexually assaulted her, raping her both vaginally and
anally and penetrating her with his fingers and his penis.
46. While the assailant was in the midst of sexually assaulting T.S. on the
living-room couch, she accidentally kicked her baby from the couch onto the floor. The
assailant picked the baby up and swung her back up onto the couch.
47. The assailant then covered T.S.s face with his do-rag, put it around her
neck, and dragged her upstairs, where he raped her again in her upstairs bedroom.
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48. While they were upstairs, T.S. heard her baby starting to cry. She asked her
assailant if she could go get her baby. He hit her again in the face and told her to shut
up.
49. The assailant left T.S.s home. Her wallet was left behind on the floor as if
50. T.S. believed the assailant had entered her home through her kitchen
window.
51. After the assailant departed, T.S. left her home and first went to Ms.
Sanderss home. She knocked, but no one answered. She then walked to the nearby
home of her sister, Denise Cousins, to get help. Around 3:30 am, Ms. Cousins opened
her door and saw a woman injured and bleeding. T.S. was so badly beaten that Ms.
Cousins initially did not even recognize her (her own sister). T.S. told Ms. Cousins that
she had been raped. T.S. described what had happened but did not identify her rapist.
52. At this pointshortly after her attackT.S. did not identify Mr. Moses-EL
as her assailant, even though he lived in her neighborhood and was known to her by his
then-nickname, Bubbles.
53. At around 3:50 am, the police arrived. The responding officer interviewed
T.S. about what had happened to her and asked her for information about her attacker.
T.S. told him that she did not get a good look at him because it had been dark and the
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lights were out. The only description she could provide was: a black male with slicked-
back, wavy hair. T.S. told the officer that she had been with two men earlier that night
who had the same hairstyle as the assailant: L.C. and Earl.
54. T.S. was taken by ambulance to the hospital that morning. A couple of
hours later, her sister, Ms. Cousins, visited her there. Ms. Cousins repeatedly asked T.S.
who had done this to her, and T.S. replied: Darnell, Earl, L.C. T.S. also told police at
56. More than a day after arriving at the hospital, while medicated, she had a
dream in which she believed that she had re-lived the attack. Shortly after awaking
from this dream, in a phone call with her sister Ms. Cousins, T.S. first identified Mr.
57. She was questioned about this identification in later legal proceedings:
A: Yeah.
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A: Well, I didnt know his name. I had to find out his name
first.
A: Yeah.
A: Right.
A: Right.
A: Right.
Q: And at some point later on that you made the decision that
it was Clarence?
A: Right.
A. Yes.
A: Right.
A: Right.
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58. No other witness tied Mr. Moses-EL to the attack on T.S. Nor was there
any physical evidence that connected him to the attack. The only evidence tying Mr.
victim in a dream many hours after the attack and after she said she did not see the
60. Additionally, it was well known that there was hostility and animosity
61. T.S. and Ms. Burke had had several heated altercations in public
concerning the relationship between their two small children. T.S. had accused Ms.
Burkes son Anthony (age 3) of having bullied T.S.s son (age 2). On at least one
occasion, this hostility had erupted into a physical fight between the two women.
62. T.S. knew Mr. Moses-EL only through his association with Ms. Burke. At
Mr. Moses-ELs preliminary hearing, when asked how she knew Mr. Moses-EL, T.S.
responded, Cause he always comes walking past the house, him and his girlfriend,
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63. The hostility between T.S. and Ms. Burke became even more apparent
during the preliminary hearing, when T.S. went so far as to accuse Ms. Burke of having
served as the lookout for the crime. T.S. had not made this accusation previously, and it
was false. When asked by defense counsel whether she had told the police this, T.S.
64. Defendant Huff, assigned to investigate the sexual assault on T.S., later
made a sworn statement expressing his doubts about the validity of T.S.s identification
of Mr. Moses-EL. The neighborhood feud was a red flag for him. At the time of the
initial investigation, he conveyed his concerns to the Denver DAs Office about whether
65. The Denver Police Department, including Defendant Huff, and the Denver
DAs Office did not ever fully believe T.S.s account of the crimes against her. For
example, although T.S. claimed that Ms. Burke had served as a lookout for Mr. Moses-
ELwhich, if true, would have made Ms. Burke an accomplice to the crimesthe
Denver Police Department did not arrest Ms. Burke, and the Denver DAs Office never
66. Despite their justified skepticism about the accuracy of T.S.s identification
of Mr. Moses-EL, the Denver Police Department, including Defendant Huff, and the
Denver DAs Office stopped investigating the identity of the perpetrator once Mr. Moses-
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Defendant Huff, and the Denver DAs Office never investigated L.C. Jackson, Earl, or
Darnell as potential suspects in the attack on T.S., despite being aware of the following
facts: (i) these three men were at the party drinking with T.S. that night; (ii) when T.S.
initially spoke to the responding police officer and explained that she had not gotten a
good look at her attacker because it was dark, she described the attackers hairstyle and
said it was like the hairstyles of L.C. and Earl; and (iii) at the hospital, before her dream-
induced identification of Mr. Moses-EL, when asked by her sister and the police who had
committed the attack, T.S. repeatedly identified L.C., Earl, and Darnell.
68. In late August 1987, had the Denver Police Department, including
Defendant Huff, done their job and adequately investigated L.C. Jackson as a suspect in
the crimes against T.S., they would have seen that he had been prosecuted as an adult for
a prior sexual assault in 1984 near Sloans Lake,3 and they would have seen references to
69. Mr. Jackson claimed that the victim of his 1984 sexual assault had
consented.
70. In 1987, had the Denver Police Department, including Defendant Huff,
made any attempt to inquire where Mr. Jackson was during the time T.S. was attacked,
they would have learned that he was gone from Ms. Sanderss home during the time of
3
Denver District Court Case No. 1985CR57the Denver DAs Office allowed Mr.
Jackson to plead down to a non-sex misdemeanor.
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the attack two doors down. Ms. Sanders could have told them that Mr. Jackson had left
left the party, and that he then returned to Ms. Sanderss home about 10-15 minutes
before the neighborhood was alerted to the attack. They could have also interviewed Mr.
Jacksons grandmother to determine whether he lied to Ms. Sanders about having visited
Jackson burglarized his aunts home in Denver. In this burglary, Mr. Jackson targeted
the familiar home of a woman alone, entered through a window, and went to an upstairs
bedroom and stole jewelry, which he later tried to sell for cash to buy crack cocaine.
72. The Denver Police Department investigated this burglary case of Mr.
Jacksons. Defendant Carroll, then a Denver Police Department Detective, was the lead
73. The Denver DAs Office prosecuted Mr. Jackson for this burglary.
74. In 1988, Mr. Jackson was convicted of second-degree burglary for this
75. Notwithstanding Mr. Jacksons burglary of his aunts home less than three
months after the attack on T.S. that shared some similarities with that crime, on
information and belief, neither the Denver Police Department, including Defendant Huff,
4
Denver District Court Case No. 1988CR64.
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nor the Denver DAs Office revisited the question of whether it was Mr. Jackson and not
Huff, and the Denver DAs Office on Mr. Moses-EL as the presumed perpetrator of the
attack on T.S. meant that they failed to realize the significance of Mr. Jacksons burglary.
77. Also, had the Denver Police Department, including Defendant Huff, and
the Denver DAs Office investigated T.S.s case properly by treating Mr. Jackson as a
potential suspect, he would not have been left at liberty to burglarize his aunts home.
Defendant Huff, and the Denver DAs Office stopped investigating the identity of the
perpetrator once Mr. Moses-EL had been arrested and charged, upon information and
belief, they failed to investigate T.S.s boyfriend as a suspect, despite knowing that T.S.
had said he had previously broken her arm, and she was afraid he would kill her.
79. There was no physical evidence tying Mr. Moses-EL to the crimes against
T.S.
80. The attack occurred in the middle of the night, in the dark. T.S. was
heavily intoxicated from drinking malt liquor to the point that she had vomited. She was
severely nearsighted, but not wearing her glasses. She was beaten on the head and face,
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81. T.S. initially told police on the scene she had not gotten a good look at the
82. The limited physical description given by T.S.black male, wavy hair
slicked back with greasedid not match Mr. Moses-EL. Mr. Moses-EL had very short,
buzz-cut hair that could not be slicked back, and he did not wear grease in it.
84. Before her medicated dream in which she believed she re-lived the attack,
when asked who had attacked her, T.S. repeatedly identified L.C., Earl, and Darnell.
85. L.C. Jackson also left his girlfriends home at the time of the attack and had
87. The sole evidence tying Mr. Moses-EL to the attack on T.S. was her dream-
induced identification of him more than a day after the attack, when she was in the
88. On the night of the attack, a rape kit was performed on T.S. at the hospital
to collect biological evidence of the sexual assaults. Vaginal swabs collected from T.S.
were later tested by the Colorado Bureau of Investigation. Analysis of these swabs
indicated the presence of semen and sperm. Although DNA testing was not yet regularly
used, ABO blood typing was conducted on the evidence samples. The only blood type
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detected was O, which was consistent with T.S., who is a Type O secretor, meaning that
antigens reflecting her O blood type are found in her other bodily fluids. This blood type
is inconsistent, however, with Mr. Moses-EL, who is a type B secretor, meaning that
antigens reflecting his B blood type are found in his other bodily fluids, including semen.
89. The Denver Police Department, including Defendant Huff, and the Denver
DAs Office knew of the lack of physical evidence against Mr. Moses-EL and the
unreliability of T.S.s identification of him but arrested and prosecuted him for these
90. On information and belief, the decision to bring Mr. Moses-EL to trial for
the attack on T.S. was based in large part on the conclusions made by Defendant Brown-
Dressel that no man including Mr. Moses-EL could be excluded by the forensic serology
91. Despite the complete lack of physical evidence implicating Mr. Moses-EL
and the obvious unreliability of T.S.s identification of him, Mr. Moses-EL was arrested
on August 18, 1987, while riding a bike with his 3-year-old son.
92. L.C. Jackson was never investigated as a suspect nor arrested in connection
93. Knowing he was innocent, from the moment he was arrested Mr. Moses-EL
began calling for the collection and testing of biological evidence to exonerate himself.
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94. Despite Mr. Moses-ELs repeated requests for DNA testing, Mr.
Moses-ELs deputy public defender failed to obtain DNA testing of the biological
evidence in the rape kit and the clothing seized from T.S.s home. His reason for this
failure was because the prevailing view among the leadership in the public defenders
office at that time was that DNA testing generally benefitted prosecutors and the
95. Mr. Moses-EL was charged with first-degree sexual assault, second-degree
96. Mr. Moses-ELs first jury trial was from April 4-7, 1988.
97. On the night of the assault, vaginal swabs were collected from T.S. and
Analysis of these swabs indicated the presence of semen and sperm. Defendant Brown-
98. By the time of the first trial, Defendant Brown-Dressel was working as a
forensic serologist with the Colorado Bureau of Investigation. The Denver DAs Office
presented expert testimony from Defendant Brown-Dressel explaining that T.S. was an O
secretor and Mr. Moses-EL was a B secretor, meaning that they each secrete antigens
indicating their blood type into their bodily fluids, such as vaginal fluid or semen.
5
At the time of Mr. Moses-ELs first trial, Defendant Brown-Dressel went by the name of Dr.
Kathren Brown.
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the evidence samples recovered from T.S. She did find evidence of an O secretor, which
samples collected from T.S. did not mean that Mr. Moses-EL could not be the perpetrator
and that she could not exclude any males from depositing that seminal fluid.
Defendant Brown-Dressel told the jury that because the blood group detected on the
evidence sample matched that of T.S., she could have been detecting antigens only from
T.S. and not also antigens from the male perpetrator. Therefore, she opined that no male
could be excluded from being the source of the sperm, and all she could conclude from
the biological evidence was that there had been evidence of sexual activity with a male.
101. Mr. Moses-ELs public defender did not challenge this conclusion by
presenting a defense serology expert to testify that because Mr. Moses-EL is a B secretor,
one would expect to find evidence of his blood type in his bodily fluids, including his
semen.
102. However, Defendant Brown-Dressel knew at the time of her testimony that
the test she used was highly sensitive and was capable of detecting even a weak foreign
antigen in an evidence sample. She had used a technique called absorption inhibition,
which was the most sensitive test available for the detection of blood antigens.
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Defendant Brown-Dressel had used this test specifically to ensure that if there was B
103. Just a few weeks before her testimony at Mr. Moses-ELs first trial, in a
different case, Defendant Brown-Dressel had successfully detected a weak foreign male
antigen (in that case, A antigen) amongst a large amount of H antigen in an evidence
sample. In that earlier case, she was able to use absorption inhibition to determine a
weak presence of a foreign blood type, which she then used to identify perpetrator.
104. This was favorable information under Brady v. Maryland, 373 U.S. 83
(1963), that the Denver DAs Office was obliged to but failed to disclose to Mr. Moses-
EL or his attorneys.
105. Thus, although Defendant Brown-Dressel knew: (i) that the samples in Mr.
Moses-ELs case should have included antigens from a male contributor (since semen
was present); (ii) that the absorption inhibition technique she used was capable of
detecting even a weak presence of a foreign blood type; and (iii) antigens indicating Mr.
Moses-ELs blood type were not detected, she knowingly and with reckless disregard for
the truth opined for the jury at the first trial that neither Mr. Moses-EL nor any other man
106. Given the sensitivity of the absorption inhibition test and the fact that male
seminal fluid was present, had Mr. Moses-EL been the contributor of that semen,
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107. A defense expert reviewing the information decades later concluded that
there was 93% detectability in this scenario, meaning that it was highly unlikely that if
Mr. Moses-ELs antigen was present, it would not have been detected. A different expert
later said upon review of Defendant Brown-Dressels work in Mr. Moses-ELs case,
[t]he fact that Dr. Brown[-Dressel] did not find the B substance indicated, very strongly,
that Mr. Moses[-EL] was not the donor of the semen. This expert further noted that Dr.
Brown[-Dressel]s failure to mention that the defendant was effectively excluded as the
donor of the semen on the vaginal swab was, at best, disingenuous such a failure to
108. Defendant Brown-Dressel knew that the test results in Mr. Moses-ELs
case could actually provide significant exculpatory information, but she deliberately
mischaracterized the results to the jury at the first trial as nothing more than inconclusive.
109. Moreover, even if she deemed the serology results inconclusive, Defendant
Brown-Dressel, could have easily performed DNA testing. At that time, she knew of the
existence of DNA testing, and she knew that such a test could have conclusively
110. Despite the fact that Defendant Brown-Dressel did sometimes express her
opinions regarding the best tests to be conducted to officers or prosecutors, and would
even request particular kinds of testing be done in some cases, she did not make any
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111. In 1987 and 1988, the Denver Police Departments Forensic Laboratory
had no standard operating procedure or formal scientific analytical method for serology
112. Standard operating procedures in a crime lab are necessary to ensure good
scientific practice and consistent procedure and allow other scientists to revisit tests and
Dressel was not required to request a DNA test for the evidence in Mr. Moses-ELs case
or to formally report the decisions she made about which scientific tests to perform.
114. Because the Denver Police Department did not have standard operating
teams were constrained in their ability to question the reliability of Defendant Brown-
115. Despite T.S.s earlier statements that it was dark and she could not get a
good look at her attacker, she testified at Mr. Moses-ELs first trial that she had three
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conviction and 16 years each on the other two convictions, to be served concurrently, for
119. While Mr. Moses-EL sat in prison for crimes he did not commit, Mr.
120. Sometime around 1992, Mr. Jackson held his then-girlfriend D.Y.H.6 down
on her bed and choked her nearly to death, so hard that the blood vessels in her eyeballs
121. In 1992, about a mile away from the location where T.S. had been beaten,
sexually assaulted, and choked by a male intruder while her boyfriend was out of state,
Mr. Jackson viciously raped a middle-aged woman and her nine-year old daughter in
their respective bedrooms in the upstairs of their home at around 2:30 a.m. while the
122. At the time of these 1992 sexual assaults of the mother and daughter, Mr.
Jackson was staying with his then-girlfriend D.Y.H, who was a neighbor of theirs and
123. It was generally known in the neighborhood that the mothers boyfriend
6
Because D.Y.H. is a crime victim, the Complaint refers to her by her initials.
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124. Mr. Jackson choked the mother and sexually assaulted her both vaginally
and orally. At one point during the sexual assault, he placed a pillowcase over her head.
125. Mr. Jackson forcibly moved the mother downstairs and tied her up in the
basement. He scattered the contents of her purse and stole items of value.
126. Three young children (including the nine-year old sexual assault victim)
were in the house at the time of the attacks. Mr. Jackson sexually assaulted the nine-
year-old girl on her bed while her younger brother was present in a crib in the same
bedroom.
127. Mr. Jackson also banged the girls head against the headboard, injuring her
head.
128. These 1992 crimes remained unsolved for more than a decade.
129. Meanwhile, Mr. Moses-EL continued to advocate from prison for the
evidence in his case to be tested for DNA, which would conclusively prove his
innocence.
130. In August 1992, Mr. Moses-EL filed a pro se motion under Rule 35(c) of
assistance of counsel because his public defender had failed to obtain DNA testing prior
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131. On September 30, 1993, the Colorado Court of Appeals reversed the denial
of Mr. Moses-ELs Rule 35(c) motion without a hearing, and the case was remanded for
a hearing on his claim of ineffective assistance of counsel for failure to have DNA testing
performed on certain crime scene samples and to determine whether those samples were
132. On November 11, 1993, the Denver Police Department made an inquiry
regarding the availability of evidence in the 1987 sexual assault of T.S. This inquiry
revealed that the evidence was still in the possession of the courts. On November 20,
1993, the evidence was reentered into the Denver Police Departments Property Bureau
to evaluate if there was DNA present for analysis. This was reported to Defendant Huff
133. Mr. Moses-ELs defense counsel requested that the Denver DAs Office
and the Denver Police Department preserve the evidence so that Mr. Moses-EL could
hire a laboratory to conduct DNA testing. It was then agreed among Mr. Moses-ELs
defense counsel, the Denver DAs Office, and the Denver District Court that the items
would be held pending Mr. Moses-EL obtaining the funds for such testing.
134. Mr. Moses-EL, an indigent prisoner, began raising money from other
inmates to conduct the DNA testing. Inmates convicted of sexual assault generally take
huge precautions to conceal their crime of conviction because such offenders are targets
of violence and exploitation by other prisoners. Putting himself in clear danger, Mr.
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Moses-EL told other prisoners that he was imprisoned for a sex-assault conviction. He
explained that he had been wrongly convicted and was trying to raise money to obtain a
135. Mr. Moses-EL understood the risks of disclosing the nature of his
conviction. He further knew that if he received money from other inmates for a DNA test
that failed to exonerate him, he would be targeted not only as a sex offender but also as a
liar who had taken other inmates money on false pretenses. But Mr. Moses-EL knew he
was innocent and trusted that DNA testing would exonerate him, so he sought funds from
136. Mr. Moses-EL successfully raised the $1,000 he needed for a DNA test.
137. In May 1995, Defendant Robin Whitley, the Deputy Denver District
Attorney assigned to Mr. Moses-ELs case, contacted Defendant Ann Perry, a civilian
employee forensic serologist in the Denver Police Department Crime Laboratory, and
asked her to determine whether the crime-scene samples were still available. Defendant
Whitley instructed Defendant Perry to preserve the samples if they were still available.
138. In July 1995, Defendant Perry determined that the samples were still
available. She packaged them for shipping by putting them in a sealed box and marked
the package DO NOT DESTROY in bolded sharpie marker. On July 19, 1995,
Defendant Perry made the following computer entry in the Denver Police Department
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property section inventory system relating to the invoice under which the samples were
139. After packaging the samples and making the computer entry, Defendant
Perry left the samples in the Denver Police Department Property Management Bureau
140. Despite the fact that Defendant Perry was aware that the investigating
detectivein this case Defendant Huffhad final say on the destruction of evidence, she
did not contact Defendant Huff to inform him of the need to preserve the evidence
samples.
141. Defendant Whitley conducted no follow-up to ensure that the evidence that
was available would be preserved. Defendant Whitley did not contact Defendant Huff
regarding the disposition of the property held under a numbered invoice that included the
evidence samples for the attack on T.S. Technician Cubbage later stated he was unaware
143. The Denver Police Department had no policies in place to ensure that
physical evidence that was supposed to be preserved was actually being preserved.
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144. Defendant Huff testified that in determining whether the property identified
Huff looked only at the date on the invoice. On October 11, 1995, Defendant Huff
looked at the invoice from Technician Cubbage, saw that it was for a case dated August
16, 1987, and concluded that since the evidence was from a 1987 case, it would no longer
preservation procedures in place, Defendant Huff did not look at the comments section
of the invoice from Technician Cubbard. Had he done so, he would have seen the
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146. Defendant Huff had the final say on destruction of evidence he was
responsible for overseeing, and his decision was not reviewed before it was carried out.
147. Defendant Huff would later testify that in his experience, when there have
been holds on evidence, he has been directly contacted by the DA or someone else who
was requesting the hold to inform him about it. He testified that he was not contacted by
Defendants Perry or Whitley regarding the need to hold the evidence in Mr. Moses-ELs
case.
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148. Defendant Huff later testified that he was unaware that the case was
activeeven though he had been sent a memorandum on November 20, 1993, stating
that the evidence was being reentered into the Denver Police Departments Property
149. On October 17, 1995, just six days after Defendant Huff had directed
Technician Cubbage to destroy the evidence, Defendant Perry wrote Defendant Whitley a
memorandum advising him that a sealed box containing the rape kit of samples collected
from T.S. and the clothing to be tested was available in the Denver Police Department
Property Bureau.
150. On information and belief, Defendant Perry drafted and circulated this
memorandum without first checking on the preservation of the evidence. Had she done
so, she would have seen that this evidence was in the process of being destroyed.
151. The Denver Police Department did not have a policy in place to ensure that
all relevant individuals were aware when evidence should not be disposed of. If such a
policy had been in place, Defendant Perry would have checked on the evidence before
152. The Denver Police Department also did not have a policy in place requiring
Detectives in charge of making decisions about evidence disposal to check with case
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153. On October 26, 1995, Defendant Whitley wrote a letter to Mr. Moses-ELs
defense counsel advising him that the evidence was available to be picked up from the
police department upon the Courts signing of the order authorizing it.
154. Defendant Whitley made no effort at this juncture to ensure that the
stipulation for the release and shipping of the rape kit and clothing to a lab in California
for defense DNA testing. On the same day, the Denver District Court entered an Order
for the release and testing of the evidence. The Order required the defense to ship the
157. As Defendant Whitley and the Denver DAs Office were aware, in order to
maintain a secure chain of custody, Mr. Moses-ELs defense counsel wanted to include a
semen sample from Mr. Moses-EL with the crime-scene evidence samples it was
supposed to pick up from the Denver Police Department and directly send to the DNA
incarcerated person can take time to facilitate, and the defense team was awaiting Mr.
Moses-ELs transfer to a Denver facility for the purpose of collection. Thus, the defense
did not immediately pick up the evidence from the Denver Police Department because
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they were not ready to Fed-Ex the evidence to the lab without Mr. Moses-ELs semen
sample.
standard procedure, retrieved the invoice for the evidence in Mr. Moses-ELs case and
other invoices indicating that their respective evidence should be destroyed. He then
retrieved all of the property to be disposed of from the bins in the Denver Police
Department Property Bureau and put all the property on a flatbed. From there, all of the
property marked for destructionand Mr. Moses-ELs only chance to conclusively prove
his innocence through DNA testingwent to a trash dumpster and was destroyed.
159. Technician Cubbage later testified that his job duties at the Denver Police
Department Property Bureau vis a vis the disposition of property were merely to identify
items designated for disposal by the assigned detective by invoice number and then
160. No Denver Police Department policy was in place that would have required
Technician Cubbage to read the comments section of the computer printouts or to inspect
simply referred to the detectives decision as marked on the invoice and carried it out.
161. On or about January 24, 1996, Defendant Whitley first became aware that
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162. Shortly thereafter, Mr. Moses-EL received a letter notifying him that the
evidence he had been pleading for years and years to have tested for DNA had been
recklessly destroyed.
163. Mr. Moses-EL later described that moment: I literally broke down in the
cell. I said, Man, I know that didnt happen. I was blown away. Broken. I felt like a
person who was given cement shoes and thrown in the water just to sink.
164. No one connected with the evidence destruction in Mr. Moses-ELs case
I. The Denver Police Department and the Denver District Attorneys Pattern of
Mishandling Evidence.
166. In 1996, Mr. Sims was a Chief Deputy District Attorney in charge of Police
memorandum recounting several criminal cases in which evidence had been mishandled
by the Denver Police Department Property Bureau and/or the Denver DAs Office and
seeking information about the recurring problem. In her correspondence, which appears
to be a response to Mr. Simss memorandum, Lt. Walter began by stating she had
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reviewed Mr. Simss memorandum and she had spoken with him and expressed [her]
desire to assist him and others in the formulation of a better system. Lt. Walter went on
to say that [a]s you know, our position in Property is custodial in nature. We do not
judge or determine an officer or detectives action, but carry out the directions given. In
the cases cited by Mr. Sims, communications problems occurred between either the
detectives and the Assistant Deputy District Attorney or detectives from two different
bureaus.
168. In this correspondence, Lt. Walter proceeded to describe not only the
destruction of evidence in Mr. Moses-ELs case that had occurred at the Denver Police
Department Property Bureau but also the separate loss of other biological evidence from
the case: refrigerated samples of saliva and blood that had been kept at a laboratory.
169. Lt. Walters correspondence explained that in 1987, Defendant Huff had
placed two tubes of blood and three tubes of saliva for Mr. Moses-ELs case under
Invoice #358430. Her records of this invoice show that these blood and saliva samples
170. She went on to say that although Defendant Huff had marked this evidence
for destruction in 1988, it had not been destroyed. She did not elaborate why evidence
171. Lt. Walter continued: Since discovering the possible existence of the
blood and saliva on February 29, 1996, I have contacted Sergeant Mark Olin and
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Sergeant Lester Smith. Sergeant Smith and I were unable to find the samples. Sergeant
Olin has not informed me of any results. Ms. Sharon Sekerak and I also checked the
Pump Room, but found no obvious samples, only reports. Thus, there is a small chance
that the blood and saliva samples may still exist if not destroyed by the lab.
172. Lt. Walter blamed Defendant Huff for the destruction of the rape kit and
clothing to be tested for DNA in Mr. Moses-ELs case. She noted, [a]ccording to the
Operations Manual, officers are required to determine case dispositions and, complete the
disposal forms. Whether the case is a minor one or a major one, the assigned detective or
from a communication problem between the Denver Police Department and the Assistant
174. Lt. Walter described another problematic incident in another case involving
evidence regarding weapon clearances. At that time, standard procedures dictated that a
weapon placed in evidence is to be cleared with the National Crime Information Center,
and if a hit comes back, then it is forwarded to Pawnshop Records. However, in that
case, although a weapon was placed in evidence on August 30, 1995, such a check was
not done in a timely manner, and the first hit was not received until January 19, 1996.
A Denver Police Department detective improperly signed the weapon out for release to
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another police department, despite the fact that it was evidence in an ongoing criminal
case.
175. In discussing that case involving the weapon, Lt. Walter notes that [d]ue to
prior to September, 1995. Several previously unknown stolen weapons have been traced,
as a result.
reckless destruction of controlled substances that Mr. Simms presumably raised in his
memorandum.
177. According to a January 30, 1997, affidavit of Lt. Walter, the procedures
utilized by the Denver Police Department and the Denver DAs Office were in effect and
suggests the use of DNA Destruction Notification letters to notify a criminal defendant
and his/her attorney that biological evidence pertaining to the defendants case will be
destroyed by a specified date unless a motion is filed requesting the retention for future
testing.7 No such process was utilized by the Denver Police Department or the Denver
7
See International Association for Property and Evidence, Inc. Professional Standards,
Version 2.5.1, updated November 2016, pg. 21, available at
http://home.iape.org/resourcesPages/IAPE_Downloads/IAPE_Resources/IAPE-
Professional-Standards/IAPE_Stands_2_6-2016.pdf.
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prosecutorial or judicial review, such as: sex crimes, capital crimes, other serious
felonies, and pending civil litigation.8 No such process was utilized by the Denver
Police Department and the Denver DAs Office in Mr. Moses-ELs case.
Technology, while [s]ound internal controls should always include the investigating
officers input into this decision The agencys investigations unit and/or the
prosecuting agency should be the primary decision maker(s) to determine that evidence is
no longer needed.9 The Denver Police Department and the Denver DAs Office did not
8
Id. at 71.
9
See the Biological Evidence Preservation Handbook: Best Practices for Evidence
Handlers, National Institute of Standards and Technology & The National Institute of
Justice, April 2013, p. 38, available at https://www.nist.gov/document-2652.
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182. On information and belief, from 1987 to 1995, there were no such audits or
inspections conducted at the Denver Police Department regarding the preservation and
safekeeping of evidence.
183. Alternatively, if there was such an audit or review, it was clearly deficient,
184. Thus, despite the grave responsibility that comes with handling and
processing evidence that determines the liberty of fellow human beings, the Denver
Police Department and the Denver DAs Office had a known and concerning pattern and
practice of failing to properly preserve and handle physical evidence in their custody and
control.
185. On May 13, 1997, Mr. Moses-ELs motion under Rule 35(c) of the
Colorado Rules of Criminal Procedure was again denied by the Denver District Court.
186. Meanwhile, in Denver around 1997, Mr. Jackson sexually assaulted the
daughter of a woman he was dating at the time. In 2003, after seeing Mr. Jackson again
at a local amusement park, the girl and her mother reported the earlier sexual assault to
10
Id. at 78, 81.
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the Denver Police Department. The Denver Police Department never followed up on the
investigation, and Mr. Jackson was never prosecuted for this crime.
187. In late 2005as the result of a push by the Denver DAs Office to use
match between the biological evidence from the 1992 sexual assaults of a 42-year-old
woman and her 9-year-old daughter and the DNA of Mr. Jackson (which had been
a press release announcing that based on the DNA match, Mr. Jackson was being charged
189. The Denver DAs Office and the Denver Police Department made no effort
to determine whether Mr. Jacksons blood type matched the biological evidence from the
rape kit in the sexual assault of T.S. for which Mr. Jackson had been identified and Mr.
190. In May 2007, the Denver DAs Office brought Mr. Jackson to trial for the
1992 sexual assaults. Mr. Jacksons theory of defense was that the woman had consented
to sexual intercourse with him in exchange for drugs, and that the girl was lying.
that at the time of the 1992 sexual assaults, Mr. Jackson was living with his then-
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girlfriend D.Y.H. in the same low-income housing project as the victims, arguing that this
192. This was Brady information for Mr. Moses-ELs case, given that at the time
when T.S. was raped and assaulted in her own home, Mr. Jackson had been living with a
girlfriend who resided in the same low-income housing project as T.S. The Denver
District Attorney was obliged to disclose this information to Mr. Moses-EL or his
193. The Denver DAs Office was also obliged to but failed to disclose to Mr.
Moses-EL or his attorneys many other similarities between the 1992 sexual assaults that
they knew Mr. Jackson had committed and the sexual assault of T.S.
194. A Denver jury convicted Mr. Jackson of two counts of aggravated first-
degree sexual assault, one count of sexual assault on a child, one count of second-degree
195. In July 2007, The Denver Post profiled the evidence-destruction problems
in Mr. Moses-ELs case as part of its long-term investigative series, Trashing the Truth.
196. In response, Defendant Morrissey caused the Denver DAs Office to issue a
public statement or press release titled Setting the Record Straight. According to this
public statement, Defendant Morrissey did reopen the People v. Moses case and he
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personally reviewed all available material. After completing his review, talking with the
original prosecutors and corresponding with defense counsel, he found that everything
that could be presented to a jury, or could be presented [to] a jury now, was presented at
197. This statement was not true. For example, the fact that Mr. Moses-EL had
sought DNA testing of the biological evidence in the case was not something that was
considered by the jury that convicted him at his first trial. Similarly, the fact that Mr.
Jackson had committed sexual assaults not far from T.S.s neighborhood and in a similar
manner was also not something considered by the jury that had convicted Mr. Moses-EL.
198. The Trashing the Truth series garnered public attention to Mr.
Defendant Morrissey expressing concern that Mr. Moses-EL may be an innocent man
wrongfully incarcerated. Their letter stated, We know of your championing of the use
of DNA in criminal cases so we know that you recognize the importance of this form of
evidence. Based on the destruction of material evidence in Mr. Moses-ELs case, the
legislators asked Defendant Morrissey to allow Mr. Moses-EL to have a new trial or
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200. On March 12, 2008, State Senator Ken Gordon sponsored and introduced
Senate Bill 08-205, which was inspired by the destruction of evidence in Mr. Moses-ELs
case. Introducing the bill, Senator Gordon said: I think the founders would have been
horrified to see that there could be cases where the crucial evidence in a case was
destroyed by law enforcement after a court had ordered that it be tested and there was no
201. Senate Bill 08-205 would have required, retroactively, a new trial in any
case where biological evidence that is subject to a court order for testing is destroyed,
lost, or otherwise disposed of before it is tested, and it would have allowed a court to
dismiss the charges if the judge found that to be the appropriate remedy.
202. Thus, had it passed, this bill would have at a minimum helped Mr.
Moses-EL obtain a new trial in 2008 or 2009. And it may have resulted in the complete
203. On March 14, 2008, Defendant Morrissey responded to the letter from the
state legislators. He claimed that he had re-opened the Moses case in March 2006 and
204. In his response letter, Defendant Morrissey stated that the victim in this
case did not name three other suspects before identifying her attacker. However, at the
preliminary hearing held October 27, 1987, T.S. testified that she had identified L.C.,
Earl, and Darnell the night she went to the hospital, before she had her dream in which
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she believed she had re-lived the attack and following which she first accused Mr.
Moses-EL. At Mr. Moses-ELs first trial, T.S. repeatedly reiterated under oath that she
205. Five days later, on March 19, 2008, Defendant Morrissey appeared before
the Colorado Senate Judiciary Committee to testify in opposition to Senate Bill 08-205.
Defendant Morrissey repeatedly said that the bill was about one case: Mr. Moses-ELs
case. Defendant Morrissey urged committee members to vote against the bill.
began his testimony in opposition to Senate Bill 08-205 by distributing copies of his
response letter to the thirteen legislators in which he had falsely claimed that the victim,
that T.S. had immediately identified Mr. Moses-EL as her attacker to others because, he
asserted, T.S.s sisters boyfriend had supposedly confronted Mr. Moses-EL right after
T.S. arrived at the sisters house seeking help. This was untrue and contrary to the
evidence. T.S.s sister, Denise Cousins, testified that the first time T.S. identified anyone
to her was at the hospital, when T.S. identified Darnell, Earl and L.C. Ms. Cousins
testified that T.S. did not assert that her assailant was Bubbles (Mr. Moses-EL) until
like a night after it happened. Ms. Cousins further testified that after her boyfriend
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(Mr. Howard) had called the police and picked up T.S.s children, he went to Mr.
Moses-ELs house and asked him did he know what happened to [T.S.].
208. Also on March 19, 2008, Defendant Whitley testified before the Colorado
Senate Judiciary Committee against Senate Bill 2008-205. Defendant Whitley also stated
that the bill was all about Mr. Moses-ELs case, and he told legislators it would be
209. In April 2008, Defendant Morrissey appeared before the Colorado House
Judiciary Committee to again testify in opposition to Senate Bill 08-205. Despite any
facts to support his claim, Defendant Morrissey complained that Mr. Moses-ELs case
had been misrepresented by the media, the Senate, and throughout the halls of this
210. According to information that came to light in March 201611, there exist
seven pages of email correspondence dated April 30, 2008, among Defendant Morrissey,
his staff at the Denver DAs Office, and his campaign manager regarding Mr. Moses-
ELs case.
influence with the Colorado state legislators deciding whether to pass a bill that would
have provided Mr. Moses-EL with a new trial. Defendant Morrissey willfully chose to
11
This information was not disclosed to Mr. Moses-ELs defense team until late March
2016 and only then in response to a request under the Colorado Criminal Justice Records
Act. Defendant Morrissey and the Denver DAs Office refused to disclose the contents
of this lengthy email correspondence.
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use his position of authority and influence to spread false information about Mr.
Moses-ELs case, thereby depriving Mr. Moses-EL of the opportunity to obtain his
freedom.
212. On or around April 30, 2012, Mr. Jackson sent a letter to Mr. Moses-EL
saying:
attorneys and investigators representing Mr. Moses-EL. Mr. Jackson generally stated that
he had left the party at Ms. Sanderss home, entered T.S.s home, engaged in vaginal and
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anal sexual intercourse with T.S. (which he claimed was consensual on her part), and
Morrissey.
filed a motion under Rule 35(c) of the Colorado Rules of Criminal Procedure asking the
Denver District Court to vacate his convictions and grant him a new trial based on newly
discovered evidence.
hearing on Mr. Moses-ELs motion for a new trial based on newly discovered evidence.
By that point in time, Mr. Moses-EL had been wrongfully imprisoned for more than 27
years.
Defendant Benedetti stated multiple times on the record in Mr. Moses-ELs case that the
218. At the request of counsel for Mr. Moses-EL, the Denver District Court
issued a writ for law-enforcement authorities to bring Mr. Jackson from prison to court to
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219. On May 14, 2015, Defendant Benedetti suggested that the Denver District
Court appoint counsel to represent Mr. Jackson on the ground that his contemplated
Defendant Benedetti asserted, the Denver DAs Office could prosecute Mr. Jackson for
kidnapping T.S., since there is no statute of limitations for bringing a kidnapping charge
the night T.S. was attacked, and she had no intention of prosecuting him for having
kidnapped T.S. She was well aware that Mr. Moses-EL had not been prosecuted for
kidnapping on the same set of crime facts. And she knew that under Colorado law, a
221. Defendant Benedetti made the argument that Mr. Jackson faced potential
liability for kidnapping in order to encourage and cause the Denver District Court to
appoint counsel to advise Mr. Jackson about his Fifth Amendment privilege against self-
incrimination. This was because Defendant Benedetti expected and hoped that such
counsel would strongly advise Mr. Jackson to assert a Fifth-Amendment privilege and
12
People v. Bell, 809 P.2d 1026 (Colo. App. 1990), held that to prove the asportation
element of kidnapping, where the movement of the victim is insubstantial, such as, in
Bell, moving the victim at gunpoint from one room of the victims house to another room
of the same house, the prosecution must establish that the insubstantial movement
substantially increased the risk of harm to the victim (a standard that the Colorado Court
of Appeals held was not met on the facts of Bell).
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222. Knowing that if Mr. Jackson testified at the evidentiary hearing on Mr.
Moses-ELs motion for new trial, Mr. Jackson would likely admit his involvement in the
attack on T.S., on May 11, 2015, Defendants Benedetti and Carroll visited Mr. Jackson in
prison.
223. Defendant Carroll began the meeting by reminding Mr. Jackson that
Defendant Carroll had been the arresting Denver Police Detective for Mr. Jacksons
burglary charge in 1987for which Mr. Jackson had received an 8-year prison sentence.
224. At one point during the meeting, Mr. Jackson asked if was under arrest.
225. Defendant Carroll told Mr. Jackson that he could be indicted if he chose to
226. Defendant Benedetti told Mr. Jackson he could face charges of perjury.
reluctantly wrote a note that stated that on the night T.S. was raped, he was home with his
girlfriend (Pamela Poo-Poo Sanders), and that he never had sex with T.S.
229. According to Mr. Jackson, as soon as he wrote the brief recantation note,
Defendant Benedetti snatched it up, and she and Defendant Carroll left.
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230. In late July and early August of 2015, the Denver District Court held the
evidentiary hearing on Mr. Moses-ELs motion for a new trial based on newly discovered
evidence that Mr. Jackson was the true perpetrator of the crimes for which Mr. Moses-EL
231. Mr. Jackson, having been advised by his own, court-appointed independent
counsel, took the stand and testified as a witness for Mr. Moses-EL.
232. Mr. Jackson credibly admitted under oath at the hearing that on the night
T.S. was attacked, he had entered her home, had vaginal and anal sexual intercourse with
her, got upset at her, and hit her multiple times in the face with his fists.
233. Mr. Jackson explained that in 1987, he was living with his then-girlfriend
Pamela Poo-Poo Sanders, who lived two doors down from T.S. in a low-income
housing project, and that T.S.s home had a similar layout to Ms. Sanderss home.
234. Mr. Jackson testified that after hitting T.S., he returned to Ms. Sanderss
home, and about 10-15 minutes later, they received a call from T.S.s sister explaining
235. At the evidentiary hearing, Mr. Jackson explained how he came to write the
letter to Mr. Moses-EL offering to admit his involvement in the crime for which Mr.
Moses-EL was imprisoned. Mr. Jackson testified that he had prayed on the matter, which
had been heavy on him for a while. As a result of his prayer, he decided that he needed
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to clear Mr. Moses-EL for the allegations that he was accused of. Mr. Jackson disclosed
that his liver was failing and that he had Hepatitis C but was choosing not to be on
dialysis. He expressed his belief that if he did not repent his sins, he did not think he
236. Mr. Jackson testified that he regretted having written the recantation note
for Defendants Benedetti and Carroll and that he had done so because he felt intimidated
by them.
237. Mr. Jackson was asked about the violent sexual crimes against the mother
and daughter in 1992 for which he had been successfully prosecuted by the Denver DAs
Office in 2006. Mr. Jackson admitted that he had sexual intercourse with the mother, but
claimed again that it had been consensual. Mr. Jackson testified that it was the mother
and not he who had banged the girls head on the bed, and he claimed that the girl had
238. Regarding the separate burglary of his aunts house in November 1987 for
which he had received the 8-year prison sentence, Mr. Jackson admitted that he had tried
239. Regarding the incident at Sloans Lake in 1984 when he was arrested for
having sexually assaulted a young woman, Mr. Jackson again claimed consent.
13
Evidentiary Hearing Tr. 07/30/15, pp. 49:14-51:11.
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240. On December 14, 2015, based on newly discovered evidence, the Denver
District Court issued a written order vacating Mr. Moses-ELs convictions and granting
241. A few days later, after spending more than 28 years incarcerated for crimes
242. Within days of the district courts order granting Mr. Moses-EL a new trial,
the Denver DAs Office made intentional repeatedly misrepresentations to the media bout
i) Defendant Kimbrough misstates to the New York Daily News that all the
evidence implicating Mr. Jackson had been presented at Mr. Moses-ELs
original trial.
Director for the Denver DAs Office, sent a public relations statement to Alfred Ng of the
New York Daily News. This statement said in part that [a]ll of the evidence, including
the explanation of the victims reference to a dream, was presented to 12 Denver jurors
244. Mr. Ng promptly wrote back, Isnt the new evidence also that Jacksons
blood type was found on the victims clothes, but not Clarences blood type? Does the
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245. The assertion contained in Mr. Ngs question was correct. Evidence of Mr.
Jacksons blood type and the fact that it is highly consistent with the rape-kit evidence in
this case was not presented at Mr. Moses-ELs original trial. When the Denver DAs
Office and the Denver Police Department learned in 2005 that Mr. Jackson had raped two
other victims in 1992, they did not bother to determine whether Mr. Jacksons blood type
matched the biological evidence from the rape kit in the sexual assault for which Mr.
Moses-EL had been convicted. It was Mr. Moses-ELs defense team who had Mr.
Jacksons saliva sample tested in 2015 to determine his blood type, which is consistent
246. Defendant Kimbrough responded to Mr. Ng, Alfred, I believe that was
247. Based on information and belief, Defendant Kimbrough did not follow up
248. On December 18, 2015, the Denver DAs Office issued a statement to the
media trying to explain away the unreliability inherent in T.S.s delayed, post-dream
asserting (for the first time) that she had been in a coma:
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249. This press release misrepresented the facts. There was no evidence that
T.S. was in a coma following the attack. To the contrary, many witnesses at the first trial
testified that they had spoken with her after the attack, both at her sisters house and at
the hospital.
250. The police officer who interviewed T.S. immediately after the attack
testified that she was able to speak to him and to provide details of what happened during
- that she did not get a good look at the perpetrator because the lights
- that she had been with L.C. and Earl that night;
- that her attacker was a black male with waved-back hair or slicked
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- that she had gone to a friends house, come back home, come inside,
- that the perpetrator had put something around her neck and dragged
252. Additionally, T.S.s sister, Ms. Cousins, testified that she spoke with T.S.
immediately after the attack and a couple of hours later when she visited her at the
hospital.
253. T.S. testified that after she was attacked, she went to her sisters house,
explained what had happened to her, and was then taken to the hospital in an ambulance.
254. T.S. herself testified that it was only after her dream in the hospitalduring
which she believed she had re-lived the attackthat she identified Mr. Moses-EL as her
assailant.
256. The December 18, 2015, statement from the Denver DAs Office to the
14
Trial Tr. 04/05/88 pp. 106:13-113:21.
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decision to grant a new trial, was a confession that was not true and
was retracted.
investigated, L.C. claimed that he had consensual sex with the victim.
But his new details about having sex with her were implausible and
not consistent with the brutal beating that resulted in the serious
injuries she suffered. L.C. Jackson is serving prison time for two
confession up. He said he had been told by the Innocence Project that
omitted. Mr. Jackson gave sworn testimony before the district court on July 30, 2015,
after having received legal advice from his own counsel. Mr. Jackson testified that he
had recanted to the prosecutor and the District Attorney Investigator because he felt
intimidated. He recounted how the District Attorney Investigator had introduced himself
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by explaining that he had previously worked for the Denver Police Department and had
arrested Mr. Jackson on a burglary case for which Mr. Jackson had served 8 years in
prison. Mr. Jackson testified before the Denver District Court at length that he had gone
to the victims home on the night she was attacked, that he had engaged in sexual
intercourse with her, and that he had repeatedly hit her in her head.
without explaining that under oath, before the district court, and with the protection of his
own counsel, he later retracted that recantation and reiterated his many inculpatory
admissions left the general public with the false impression that Mr. Jackson had recanted
recantation was repeated in various news articles and on television for weeks after the
district court had vacated Mr. Moses-ELs convictions and ordered a new trial.15
15
Keith Coffman, Denver man jailed 28 years free on bond after rape conviction tossed,
Yahoo! News, Dec. 22, 2015, http://news.yahoo.com/denver-man-jailed-28-years-free-
bond-rape-050216124.html; Rose Troup Buchanan, Clarence Moses-EL: After 28 years
inside, US man jailed for a rape he claims he never committed is finally freed,
Independent (UK), Dec. 23, 2015, http://www.independent.co.uk/news/world/
americas/clarence-moses-el-after-28-years-inside-us-man-jailed-for-a-rape-he-claims-he-
never-committed-is-a6784216.html; Josiah Hesse, Convicted of rape based on a dream,
man relishes freedom after 28 years, The Guardian, Dec. 24, 2015,
http://www.theguardian.com/us-news/2015/dec/24/clarence-moses-el-free-denver-rape-
case.
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case.
261. Defendant Kimbrough wrote back to Mr. Schnibbe to transmit the District
Attorneys public relations statement about this case. She further wrote, This was not a
conviction based on a dream, it was based on evidence presented during a 4-day trial
262. This was false. Mr. Moses-EL did not testify at his original trial.
iv) Defendant Kimbrough made false statements to editors of The Denver Post
in response to their editorial urging the Denver DAs Office to drop the
charges in this case.
263. On December 27, 2015, The Denver Post published an editorial titled: DA
should drop weak case against Clarence Moses-EL: Denver man served 28 years in
264. Two days later, Ms. Kimbrough sent a multi-point rebuttal to the editors of
The Denver Post embedded in the text of their editorial. Her rebuttal included more false
statements.
265. The editorial stated that Immediately after the 1987 attack in Denvers
Five Points Neighborhood, the victim gave police three possible names: L.C., Earl and
Darnell. This information was correct. At trial, T.S. was asked, Did you tell the
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policeman who did this to you? and she replied, When he asked me I said L.C., Earl,
267. The Denver Post editorial further stated: A couple of days later [the
victim] told police the identity of Moses-EL came to her in a dream. Again, this
information was correct. The victim testified at trial that she did not identify Mr.
Moses-EL until a day or a day and a half after the attack. She testified that although she
had initially identified L.C., Darnell, and Earl, she then had a dream in the hospital in
which she relived the attack, and that is when she supposedly realized that her attacker
269. Again, the victim was not in a coma. And shortly after the attack, and more
than a day before her nightmare, she recounted to a police officer the details of what had
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happened to her, including that she had not gotten a good look at her assailant because
The case seemed stalled until 2006 when the name L.C.
reappeared. L.C. Jackson was a neighbor of Moses-EL. In
2006, authorities matched Jacksons DNA to a sexual assault
that occurred in 1992, not far from where the 1987 rape
occurred.
The case seem [sic] stalled? The case went to trial, and after 4
days of testimony a jury of 12 Denver citizens who heard all
of the evidence, including the testimony of the victim,
Moses[-EL], and also L.C. Jackson, found him guilty.
272. The jury that convicted Mr. Moses-EL did not hear him testify. Nor did
they hear all of the evidence. In 1988 when Mr. Moses-EL was tried, L.C. Jackson had
not yet committed the two sexual assaults in 1992. And of course, the jury at Mr.
Moses-ELs trial in 1988 did not hear Mr. Jackson admit that on the night T.S. was
attacked, he had followed her home in the middle of the night, had sexual intercourse
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Denver Post editorial calling for the charges to be dropped, containing all of these false
274. On March 15, 2016, Mr. Jackson wrote a letter to T.S. asking her to speak
with him. Mr. Jackson sent this letter to T.S. care of the Denver DAs Office. The
Denver DAs Office received the letter on March 21, 2016. In the letter, Mr. Jackson
says he is sorry for what has happened and asks for T.S.s contact information.
275. The Denver DAs Office proceeded to deliver the letter to the victim.
of their visits with him that he would like to contact T.S. The Denver DAs office then
relayed his request to T.S. She told the Denver DAs Office that she did not want Mr.
276. Mr. Moses-ELs defense team was not made aware of this letter or the
Denver DAs Offices delivery of it to T.S. until more than three weeks later, on April 12,
2016. When confronted about this at a pretrial conference, on April 13, 2016, Defendant
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Benedetti argued that she did not believe she had any obligation to even disclose this
277. The Court disagreed with Defendant Benedetti that she was not required to
disclose this letter to Mr. Moses-ELs counsel16 and reminded her of the prosecutions
278. On April 16, 2016, Mr. Jackson was able to contact T.S. through a phone
provided by the Denver DAs Office at the behest of Defendant Benedetti. Given that
Mr. Jackson was incarcerated at the time, these calls were recorded.
279. Mr. Jackson told T.S. that the DAs office had informed him that she was
very mad at him. Mr. Jackson told T.S. thats why I asked for your information so that
we could talk because I did not know what was being said or what was being done, so I
was confused about them telling me that you were mad at me. I was like I need to talk to
her then and get her information, so I can put her on my phone list.
280. Mr. Jackson and T.S. talked for more than 40 minutes and shared
information regarding their recollections of the night of the crime and their conversations
defense team a March 2016 letter from Mr. Jackson to T.S. Defendant Benedetti did not
16
Rule 16(I)(a)(1)(i) of the Colorado Rules of Criminal Procedure provides in part: The
prosecuting attorney shall make available to the defense the following material and
information in their possession and control Police, arrests and crime or offense
reports, including statements of all witnesses.
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provide requested documentation describing the Denver DAs Offices provision of a cell
phone to T.S. for the purpose of accepting prison calls from Mr. Jackson.
282. Within a few weeks before a March 24, 2016 motions hearing in Mr.
Moses-ELs case, another sexual assault victim of Mr. Jackson came forward to Mr.
Moses-ELs defense counsel. Mr. Jackson had sexually abused this victim, the young
daughter of a woman he had been dating, in her own home when she was still in
elementary school. The sexual assaults involved digital penetration of the girls vagina
and oral sexual abuse. When she was later a teenager in approximately the summer of
2003, this victim thought she saw Mr. Jackson, and she and her mother then reported Mr.
Jacksons sexual abuse in person at the Denver Police Department. No such reports or
information have ever been disclosed to Mr. Moses-ELs defense team. The defense
moved for additional discovery of these reports as well as any other reports that Mr.
283. At the March 24, 2016 motions hearing, the Denver DAs Office revealed
that it had not even asked the Denver Police Department to turn over the reports from this
victim and her mother to the District Attorneys Office for prosecutorial review.
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284. Floyd Wesley Howard was the boyfriend of T.S.s sister, Ms. Cousins, at
the time of the assault on T.S. He was at Ms. Cousinss home, sitting on the outside
porch, when T.S. came for help that night, beaten beyond recognition. Soon after T.S.
went into Ms. Cousins home, Mr. Howard he went looking around to see if he could see
anyone.
285. During the initial investigation of the attack on T.S. in 1987, Mr. Howard
never claimed that T.S. made any identification at Ms. Cousins home or before T.S. was
hospitalized.
286. The Denver DAs Office did not call Mr. Howard to testify at Mr.
287. During an interview with a defense investigator in 2007, Mr. Howard did
not say anything about hearing T.S. identify the perpetrator of the attack.
288. On May 20, 2015, more than 28 years after the attack on T.S., Defendant
Carroll called Mr. Howard. According to Defendant Carrolls report about the
conversation, although Mr. Howard said he did not recall a lot about the incident, he
believed that T.S. had said she was assaulted by Bubba, who he knew to be the same
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289. When Mr. Howard spoke with a defense investigator, he said his
confidence in his memory of the identification was a score of 1 out of 10, with 1 being
the least sure and 10 being the most sure. Later during the interview, he told the defense
investigator that he actually may have heard this thing about Bubble sometime later
from neighborhood gossip, or from T.S. when she returned from the hospital, not on the
290. On August 26, 2016, Defendants Benedetti and Carroll spoke with Mr.
Howard again. According to Defendant Carrolls report, Mr. Howard had previously
been racking his brain to remember the night, but on the call with Defendants Benedetti
and Carroll, he recalled that T.S. had called out the name of Bubba as the one who had
assaulted her.
291. After having conversations with Defendants Benedetti and Carroll, Mr.
Howard was able to recall T.S.s identification of Mr. Moses-EL (a/k/a Bubbles) with
much more clarity at the second trial of Mr. Moses-ELmore than 28 years after the
assault.
292. Mr. Howard was called by the prosecution at Mr. Moses-ELs second trial
to testify that T.S. had identified Mr. Moses-EL on the night of the assault.
293. Mr. Howard testified that this identification was made to Ms. Cousins
inside Ms. Cousinss home, shortly after the attack (before T.S. was taken to the
hospital).
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294. The evolution of Mr. Howards memory was discussed during his cross-
A. Yes.
A. Right.
A. Yes.
A. Yes.17
295. T.S. has never claimed that she identified Mr. Moses-EL to Ms. Cousins or
Mr. Howard before she went to the hospital. To the contrary, she has explained that she
was, in her view, unable to identify Mr. Moses-EL until after her dream in the hospital.
296. Ms. Cousins also did not testify that T.S. identified Mr. Moses-EL to either
17
Tr. 11/08/16, p. 128:8-22.
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297. In her continued attempt to manufacture false evidence and avoid Mr.
Moses-ELs ultimate exoneration, Defendant Benedetti decided she would call Mr.
Moses-ELs then-wife, Stephanie Burke, to testify as a witness for the prosecution at the
retrial.
299. Despite the fact that Defendant Benedetti would not immunize Mr. Jackson
to allow him to testify without fear of additional criminal liability at Mr. Moses-ELs
evidentiary hearing or retrial, Defendant Benedetti did provide Ms. Burke with immunity
in order to force her to testify for the prosecution and against Ms. Burkes wishes.
300. Unlike Mr. Jackson, whose testimony would exculpate Mr. Moses-EL, Ms.
Burke was called to testify for the prosecution about an argument she had with Mr.
301. Defendant Benedetti also tried to use Ms. Burkes testimony to support
Defendant Benedettis fabricated theory that Ms. Burke had directed Mr. Moses-EL to
302. Neither Defendant Benedetti nor anyone else in the Denver DAs Office
from 1987 through 2016 ever believed that Ms. Burke was truly involved in the crimes
against T.S., because they never charged her for aiding and abetting or being an
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approach to Mr. Moses-Els criminal case, rather than fulfilling her duty as a prosecutor
304. As late as February 2016, Defendant Benedetti and the Denver DAs Office
were not sure whether they would re-try Mr. Moses-EL for the attack on T.S.
305. There was even less probable cause for the second prosecution of Mr.
Moses-EL.
306. There was still no physical evidence tying Mr. Moses-EL to the crime.
307. T.S. had identified three other men multiple times before she ever identified
Mr. Moses-EL.
308. Mr. Moses-EL did not fit the initial physical description given by T.S. She
said that her assailant had hair that was slicked back with grease. Mr. Moses-EL had a
short buzz-cut, and his hair was not long enough to be slicked back.
309. Also, it was very dark in T.S.s home, she had extremely poor eyesight, she
had taken her glasses off, and she was beaten in the head and face during the attack. She
initially told the responding officer she had not gotten a good look at the perpetrator.
310. The only evidence tying Mr. Moses-EL to the crime was the dream-induced
identification by T.S. more than a day after the attack, when she was in the hospital on
prescribed narcotics.
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Denver DAs Office and Defendant Benedetti the expert opinions of Daniel Reisberg,
312. Dr. Reisberg would later testify at the second trial to multiple factors that
313. Dr. Reisberg opined that, of the more than one thousand eyewitness
identifications he has reviewed, T.S.s identification of Mr. Moses-EL was one of the
314. T.S. had a deep dislike of Mr. Moses-ELs girlfriend which had resulted in
315. T.S. even went so far as to add to her story during Mr. Moses-ELs
preliminary hearing, claiming that she had seen Mr. Moses-ELs girlfriend, Ms. Burke,
acting as a lookout for Mr. Moses-EL during the attack. Likely realizing the
untrustworthiness of T.S.s evolving story, prosecutors never charged Ms. Burke for
18
Tr. 11/08/16, pp. 113:22-114:3.)
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316. Defendants knew of the lack of physical evidence tying Mr. Moses-EL to
the crime and the unreliability of T.S.s identification of Mr. Moses-EL, but nonetheless
317. One of the men identified by the victim shortly after the attack had hair
slicked back with grease and was gone from his girlfriends home at the time of the
attack, having implausibly claimed he was going to his grandmothers house in the
middle of the early morning hours. Furthermore, during the investigation for Mr. Moses-
ELs second trial, Defendants possessed a significant amount of information about the
318. In addition to the sexual assaults he had been accused of before 1987,
Defendants Morrissey, Benedetti, and Carroll knew that Mr. Jackson had also committed
a very similar crime five years after the assault of T.S. The similarities of the crimes are
noted below:
1987 Assaults in the Case for Which L.C. Jacksons 1992 Assaults of
Mr. Moses-EL Faced Retrial Mother and Daughter
Victim lived two doors down in same Victims lived very close and in same
low-income housing complex from low-incoming housing complex as
L.C. Jacksons then-girlfriend, with L.C. Jacksons then-girlfriend, with
whom he was staying. whom he was staying.
L.C. Jackson was familiar with the L.C. Jackson was familiar with the
floor plan of the victims home. floor plan of the victims home.
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L.C. Jackson was acquainted with the L.C. Jackson was acquainted with the
victim, and knew that she was a victims, and knew the adult victim
woman living with young children. was a woman living with young
children.
Perpetrator preyed upon the victim L.C. Jackson preyed upon the victims
while her boyfriend was out-of-state. while their husband/father was in jail.
Attack occurred in the early morning Attack occurred in the early morning
hours (around 2:30 a.m.). hours (around 2:30 a.m.).
Perpetrator raped the victim while her L.C. Jackson raped the child victim
infant and toddler were in the same while her two-year old sibling was in
room. the same room.
Perpetrator forced victim onto her L.C. Jackson pushed each victim onto
bed. their respective bed.
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Perpetrator rifled through the victims L.C. Jackson rifled through the
wallet and left contents scattered on contents of the adult victims purse on
the floor. the floor and stole her diamond
wedding ring and other jewelry.
L.C. Jackson was drinking malt liquor L.C. Jackson reeked of malt liquor
the night the victim was attacked. during the rape of the adult victim.
Defendants Morrissey, Benedetti, and Carroll also knew that Mr. Jackson had been
charged with burglarizing his aunts house, and that he was accused of having sexually
320. Defendants knew that Mr. Jackson was gone from his girlfriend Pamela
Sanderss home during the time period when T.S. was being sexually assaulted and
321. Most importantly, Defendants were also aware that Mr. Jackson had
admitted he had sexual intercourse with T.S. in her home and repeatedly hit her in the
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322. However, Defendants and the Denver DAs Office had significantly more
to lose at this juncture. If they were to concede that Mr. Moses-EL was innocent, then
they would have been responsible for the nearly three decades he spent in prisonas well
as for the crimes Mr. Jackson committed while he was allowed to remain at liberty.
323. Recognizing this dynamic and the lack of probable cause to bring Mr.
Moses-EL to trial in 2016, Defendant Benedetti tried to resolve the case by dangling the
defense counsel whether Mr. Moses-EL would be interested in resolving the case with an
324. An Alford plea is when a criminal defendant does not admit any
wrongdoing but admits that the prosecution has enough evidence to convict him. For a
criminal defendant who has actually committed the crimes charged, a plea deal of an
extremely favorable deal, because it ensures that the defendant will never return to
prison.
325. Mr. Moses-EL, through counsel, rejected the prospect of any such offer,
326. Unwilling to dismiss the charges despite the lack of probable cause,
Defendants Morrissey and Benedetti decided to proceed to trial against Mr. Moses-EL for
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328. The judge in Mr. Moses-ELs case ruled that the jury shouldnt hear
evidence about events that took place after the original trial in 1988, including the
destruction of the DNA evidence by the Denver Police Department or the other ways the
Defendants poorly investigated the case. The jury was also not allowed to be told Mr.
Moses-EL already served 28 years in prison on this case or that Detective Huff said in a
sworn statement that he always had reservations about the case and suggested that the
victim may have identified Mr. Moses-EL because of a personal vendetta against his
girlfriend. And the jury was not allowed to hear about the similarities of Mr. Jacksons
eight women and four men found Mr. Moses-EL not guilty on all charges.
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331. Mr. Moses-EL spent more than 28 years in prison for crimes he did not
commit.
332. He spent another year under conditions of bond awaiting another traumatic
trial experience where his liberty would again be on the line, and where he knew from his
experience in the 1988 trial that his innocence could not guarantee protection from
wrongful conviction.
333. Imprisoned at the age of 32 and released at age 60, he was deprived of
almost his entire adult life. He must now attempt to make a life for himself outside of
prison without the benefit of 28 years of life experiences, which normally equip adults for
that task.
334. While he was imprisoned, Mr. Moses-EL missed the lives, and deaths, of
his brothers, Robert and James. His youngest sister Joane and his oldest sister Maggie
lived their last days and died while Mr. Moses-EL was in prison. And Mr. Moses-ELs
best friend, most avid supporter, and mother, Elouise, passed away while Mr. Moses-EL
was locked in a prison cellnot living to know that her son would one day walk out of
335. Mr. Moses-EL, who was first arrested when his daughter Tyice was four
years old and his son Anthony was three, was imprisoned for his childrens first days of
school, their first dances, their first jobs, and other important personal milestones and
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celebrations. Mr. Moses-EL was forced to miss the births and infancies of his twelve
grandchildren.
336. Additionally, the emotional pain and suffering caused by losing 28 years in
the prime of life has been substantial. During his wrongful incarceration, Mr. Moses-EL
was stripped of the various pleasures of basic human experience, from the simplest to the
337. He missed out on the ability to share holidays, births, funerals, and other
life events with loved ones, the opportunity to pursue a career, and the fundamental
damage, including physical harm and injury, severe emotional distress and anguish, and
340. Mr. Moses-EL brings this claim against Defendants Morrissey, Benedetti,
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341. Defendants were acting under the color of state law at all times relevant to
this Complaint.
342. Probable cause did not exist to charge Mr. Moses-EL in either his 1988 or
termination of Mr. Moses-ELs criminal case when he was acquitted of all charges in
2016.
strength of Mr. Moses-ELs case and thereby entrenching his office in the subsequent
prosecution of Mr. Moses-EL despite the lack of probable cause, Defendant Morrissey,
acting under his authority as District Attorney, caused Mr. Moses-EL to be subject to a
continued illegitimate prosecution, forced him to go through a second trial, and deprived
him of due process of law in violation of the Fourteenth Amendment to the United States
motiveas shown from the want of probable cause, and the knowing and intentional, or
with reckless disregard for the truth, spreading of false information concerning Mr.
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346. By intimidating a serial rapist who was initially identified by the victim as
her assailant and ultimately confessed to the crime of his own volition into a flimsy
illegitimate prosecution and deprived him of due process of law in violation of the
Fourteenth Amendment to the United States Constitution. These unlawful acts occurred
during the Denver DAs investigation into Mr. Moses-EL, and Defendant Benedetti was
347. Defendants Benedetti and Carroll caused Mr. Moses-ELs prosecution with
motives other than a desire to bring an offender to justice as shown from the want of
348. By repeatedly disseminating to the media and the public false information
about the strength of the case against Mr. Moses-EL, even when she was confronted with
the falsity of her claims, and thereby further entrenching the Denver DAs Office in its
prosecution of Mr. Moses-EL in 2016 despite the lack of probable cause, Defendant
deprived him of due process of law in violation of the Fourteenth Amendment to the
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349. By using her position as an expert in forensic serology to: (i) knowingly
withhold information from and mislead prosecutors, Mr. Moses-ELs defense attorneys,
and the jury about the implications of the results of the serology testing done on the
biological evidence in Mr. Moses-ELs case; and (ii) deliberately refusing to seek DNA
testing of the evidence collected from T.S. before the 1988 trial despite her knowledge of
its availability and potential to conclusively determine whether Mr. Moses-EL was the
1987-1988 prosecution and trial and deprived him of due process of law in violation of
350. By encouraging the first prosecution of Mr. Moses-EL in 1988 despite the
fact that he personally knew of the blatant unreliability of the only evidence against Mr.
and by failing to investigate an obvious alternate suspect who had a history of sexual
assault, Defendant Huff caused Mr. Moses-EL to be subject to his 1987-1988 prosecution
and trial, and deprived him of due process of law in violation of the Fourteenth
maliciously prosecuted and tried twice for crimes he did not commit and was imprisoned
for 28 years based on the first conviction. Mr. Moses-EL has suffered emotional distress,
psychological injury, and destruction of family ties based on the malicious prosecution of
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the Defendants. He continues to suffer physical and psychological harm resulting from
the years of Defendants efforts to wrongfully prosecute and incarcerate crimes he did not
commit.
353. Mr. Moses-EL brings this claim against Defendants Whitley, Huff, and
Perry.
354. Defendants Whitley, Huff, and Perry were acting under color of state law in
their actions and inactions which occurred at all times relevant to this action.
355. Defendants Whitley, Huff, and Perry acting within scope of their
to register, store, test, maintain, and control exculpatory evidence that they knew would
have vitiated probable cause to arrest, prosecute, and imprison Mr. Moses-EL.
356. While Mr. Moses-EL was incarcerated (and/or while any conviction against
him remained on file), Defendants Whitley, Huff, and Perry had a constitutional
obligation to register, store, preserve, maintain, and test exculpatory evidence relating to
the crimes of which Mr. Moses-EL was wrongfully charged and convicted.
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357. The exculpatory value of the evidence was apparent to Defendants Whitley,
Huff, and Perry. In the alternative, the evidence was potentially exculpatory, and these
358. Nonetheless, these three Defendants acted in bad faith in destroying the
rape kit and clothing collected from T.S. and her home.
preserved, maintained, and tested by Defendants Whitley, Huff, and Perry, Mr.
Moses-EL would not have been wrongfully incarcerated and then re-tried for the same
crimes.
constitutional rights.
and agents of the City of Denver, including but not limited to the Defendants Whitley,
Huff, and Perry, pursuant to the policies and practices of the City of Denver Police
Department more fully described above. This includes but is not limited to destroying
constitutional rights were violated, and he suffered physical harm and injury, severe
emotional distress and anguish, and pecuniary damages, as more fully alleged above.
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364. Mr. Moses-EL brings this claim against Defendants Benedetti and Carroll.
365. Defendants were acting under the color of state law at all times relevant to
this Complaint.
intimidating L.C. Jackson into giving a false recantation of his true admissions of his
367. Defendants Benedetti and Carroll did this by threatening Mr. Jackson that
they could file further charges against him and letting him know exactly what they
368. In a desperate attempt to try to prove Mr. Moses-EL guilty at his second
boyfriend of T.S.s sister, Ms. Cousins, at the time of the assaultto remember for the
first time, 28 years after the incident, that immediately after the attack, T.S. had
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supposedly said to Ms. Cousins inside Ms. Cousinss home that the person who had
that his memory about this matter was unreliable and weak (a 1 on a scale of 1 to 10) and
that he may have heard something about Bubbles from neighborhood gossip instead of
from T.S., after speaking again with Defendants Benedetti and Carroll, Mr. Howard
claimed to confidently recall (28 years after the fact) that T.S. had identified Mr.
Moses-EL to Ms. Cousins immediately after the attack at Ms. Cousinss home.
371. Defendants Benedetti and Carroll knowingly and intentionally used Mr.
372. In a further attempt to ensure Mr. Moses-EL would be found guilty again,
Defendant Benedetti willfully and wantonly gave Ms. Burke, then Mr. Moses-ELs wife,
immunity for her testimony for the sole purpose of fabricating false inculpatory evidence
that Ms. Burke had supposedly directed Mr. Moses-EL to commit crimes against T.S. on
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373. The acts or omissions of Defendants Benedetti and Carroll were the legal
constitutional rights were violated, and he suffered physical harm and injury, severe
emotional distress and anguish, and pecuniary damages, as more fully alleged above.
376. Mr. Moses-EL brings this claim against Defendant City and County of
Denver.
County of Denver.
they enforce a policy or custom that causes the deprivation of individuals constitutional
rights.
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380. Defendant the City and County of Denver, by and through its final
constitutional violations:
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completely destroyed.
decisions, policies and/or indifferent employee training or supervision practices were: (i)
people were being wrongfully convicted of crimes they had not committed.
382. The City and County of Denvers municipality liability here is premised
upon among other things, its failure to adopt proper and reasonable policies and practices
383. As a direct and proximate result of the City and County of Denvers
supervision practices, Mr. Moses-EL was wrongfully convicted and imprisoned for more
than 28 years. During these events, Mr. Moses-EL endured substantial physical,
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385. Mr. Moses-EL brings this claim against Defendants Morrissey, Benedetti,
386. Defendants were acting under the color of state law at all times relevant to
this Complaint.
knowingly, intentionally, willfully, and wantonly conspired with one another, and others,
to deprive Mr. Moses-EL of his rights under the Fourth and Fourteenth Amendments to
the United States Constitution. By prosecuting and aiding the prosecution of Mr.
Moses-EL despite knowing that the great weight of evidence supported his innocence,
these Defendants attempted to cover up the Denver Police Departments and Denver
which had resulted in the multi-decade imprisonment of an innocent man while allowing
a serial rapist to remain at liberty to continue to victimize Denver women and girls.
positions of authority and influence to spread lies about the 1987 crime and the strength
of the evidence against Mr. Moses-EL, and to prosecute him through any means possible
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to cover up the egregious injustice that had been perpetrated against Mr. Moses-EL, and
to thereby deprive him of his constitutional rights, as illustrated in the systematic and
389. Each of the co-conspirators committed overt acts and was an otherwise
390. As a direct and proximate result of the illicit agreement referenced above,
Mr. Moses-ELs constitutional rights were violated, and he suffered physical harm and
injury, severe emotional distress and anguish, and pecuniary damages, as more fully
alleged above.
392. Mr. Moses-EL brings this claim against Defendants Morrissey, Benedetti,
393. Defendants were acting under the color of state law at all times relevant to
this Complaint.
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394. Mr. Moses-EL has a protected liberty interest in freedom from prosecution,
bond conditions, and incarceration by the State, except upon due process that complies
detailed above and acting recklessly, knowingly, intentionally, willfully, and wantonly,
played a personal and essential role in ensuring that Mr. Moses-ELs prosecution and
criminal trials lacked fundamental fairness to a degree that shocks the universal sense of
tested in order to conclusively assess the innocence of Mr. Moses-EL, thereby extending
his imprisonment for crimes he did not commit and depriving him of the exculpatory
evidence in his second trial; (ii) systematically withholding exculpatory evidence from
Mr. Moses-EL and his defense counsel regarding true perpetrator Mr. Jackson; (iii)
prosecution and continued confinement of Mr. Moses-EL, and using this evidence against
him by presenting such evidence to judicial officers, members of the public, jurors, and
Mr. Moses-EL and his defense counsel; (iv) refusing to investigate alternative and more
viable suspects; (v) during Mr. Moses-ELs first trial, misleading the jury about the
conclusions that could have been drawn by serological testing and refusing to seek DNA
testing; (vi) attempting, and taking affirmative steps, to deny Mr. Moses-EL access to
potential judicial remedies based on the destruction of exculpatory DNA evidence; (vii)
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confine Mr. Moses-EL, despite the great weight of evidence pointing to his innocence;
(viii) failing to train and supervise to prevent the above constitutional violations; and (ix)
failing to establish policies, customs, and/or practices to prevent the above constitutional
violations.
396. Although Mr. Moses-EL has since been acquitted, the reckless, knowing,
intentional, willful, and wanton actions by Defendants described herein caused Mr.
egregious and were carried out in a manner that shocks the conscience, thus depriving
criminal trial unfair by disseminating false information and entrenching his office in the
political prosecution of Mr. Moses-EL. Defendant Morrissey knew of, condoned, and/or
approved the wrongful acts of Defendants Benedetti, Kimbrough, and Carroll described
herein, with the intent and understanding to bring about Mr. Moses-ELs unconstitutional
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398. As a direct and proximate result of the actions referenced above, Mr.
Moses-ELs rights were violated, and he suffered physical harm and injury, severe
emotional distress and anguish, and pecuniary damages, as is more fully alleged above.
400. The acts of Defendants Benedetti, Kimbrough, and Carroll were committed
under their authority as employees of the Denver DAs Office vested under the laws of
the State of Colorado; these acts were, therefore, committed under the color of state law.
401. Defendant Morrissey knew or should have known of the need for additional
Office to ensure that such employees would: (i) refrain from ignoring a criminal
defendants innocence; (ii) refrain from disseminating false information; (iii) exercise
care and thoroughness in the investigation and prosecution of a case of a crime involving
no other evidence but an unreliable identification; and (iv) refrain from filing and
basic civil rights, Defendant Morrissey failed to provide adequate screening, training,
supervision, and discipline of employees of the Denver DAs Office with respect to: (i)
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care and thoroughness in the investigation and prosecution of a case of a crime involving
no other evidence but an unreliable identification; and (iv) refraining from filing and
403. At all relevant times, the Denver DAs Office, personally and/or through its
agents and employees, had final, discretionary authority to promulgate and implement
policies and procedures, including policies and procedures as to personnel training and
supervision, with respect to the Denver DAs Offices performance of its duties.
Defendant Morrissey (and/or his authorized agents) was a City and State policymaker;
he acted, however, with a reckless disregard to the constitutional rights of Mr. Moses-EL.
screening, training, supervision, and discipline of employees of the Denver DAs Office,
Mr. Moses-EL would not have continued to be wrongfully convicted and deprived of his
conviction, his sentence, his incarceration, and his resulting and continuing injuries were
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referenced above, Mr. Moses-EL suffered physical harm and injury, severe emotional
distress and anguish, and pecuniary damages, as is more fully alleged above.
judgment in his favor and against the Defendants, and award him all relief as allowed by
Mr. Moses-EL;
c) Compensatory damages, including, but not limited to, those for past and
at trial;
f) Attorneys fees and the costs associated with this action as allowed by law;
and
q) Any further relief that this Court deems just and proper, and any other relief
as allowed by law.
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s/Gail K. Johnson
Gail K. Johnson
Eric K. Klein
Amy Kapoor
Aurora L. Randolph
1470 Walnut Street, Suite 101
Boulder, CO 80302
(303) 444-1885
(866) 340-8286 (fax)
[email protected]
[email protected]
[email protected]
[email protected]
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