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AG opposes compensation for Clarence Moses-EL following his acquittal, after 28 years behind bars

Posted at 11:24 PM, Jan 29, 2018
and last updated 2018-01-30 01:24:33-05

DENVER -- After spending 28 years behind bars for a crime he says he didn't commit, Clarence Moses-EL is now seeking compensation from the State.

The Attorney General's Office opposes the request, stating in its formal reply that Moses-EL cannot meet the high threshold required for compensation under state statute.

Compensation Law

In 2013, state lawmakers passed the Compensation for Persons Wrongly Convicted law.

It provides $70,000 in compensation for each year spent in prison, for those who were wrongfully convicted.

In Moses-EL's case that could be $1,995,000.

"I'm entitled to compensation," Moses-EL told Denver7. “That’s what I’m pursuing, what I’m entitled to by law.”

But the AG is contesting Moses-EL’s assertion of actual innocence.

“It is very important to understand the difference between reasonable doubt and clear and convincing evidence,” said Leora Joseph, the AG’s Chief of Staff.  “Most prosecutors will tell you that acquittals (in sex assault cases) happen.  Jurors aren’t always able to reach a unanimous verdict.  They struggle with the high burden of reasonable doubt.  That’s very different than saying someone is actually innocent.”

"Conviction based on a dream"

Moses-EL was initially arrested, charged and convicted for a brutal sex assault that occurred in 1987.

His Public Defender opted not to seek DNA testing, which was relatively new.

Moses-EL argued in favor of DNA testing, thinking it would absolve him of the crime.  While languishing in prison, he fought to get evidence tested for DNA.

A court eventually ordered that the evidence be tested, but Denver Police threw the evidence away.

“It’s hard to peer into the hearts and minds of individuals, but I don’t see how that can be anything other than an intentional act,” said Eric Klein, one of Moses-EL’s attorneys.

Eventually, Moses-EL was granted a second trial and was acquitted on all charges.

Klein, said Moses-EL’s conviction was "based on a dream."

According to court documents, the victim had been drinking at a friend’s house, got sick and went home.

The perpetrator allegedly entered her house through a window and viciously assaulted her.

"There was no physical or scientific evidence implicating Mr. Moses-EL in these crimes," his attorney said. "The only evidence against him was an identification by the victim, made a day and a half afterwards, following a dream in which she believed she had relived the attack."

According to the court documents, when the victim was first interviewed by police, she said she didn't get a good look at the perpetrator because it was too dark.

She then gave a limited physical description of the attacker that matched two men she was drinking with that night.

When pressed by her sister and then the police to identify who had attacked her, she named those two men and another man she had been drinking with, but not Mr. Moses-EL.

"It was only while she was under medication in the hospital, following her dream, that she awoke to a new belief that the person who had attacked her was Mr. Moses-EL – a neighbor whose girlfriend she had been quarreling with,” the court document alleges.

AG’s response

In the response to Moses-EL’s petition for exoneration, the AG wrote that Moses-EL was not a stranger to the victim.

“They lived in the same complex and their families were engaged in a dispute.  (The victim’s) identification of Petitioner as the person who committed these crimes has not changed in the last thirty years, and her conviction of this fact remains strong to this day.”

“Petitioner’s motion for a new trial and several attempts at post-conviction relief failed until Petitioner began communicating with another convicted felon, L. C. Jackson.  Jackson – who was in prison serving a 135-year sentence for separate crimes – communicated with Petitioner.  The two wrote letters to one another and subsequently Jackson stated that he had assaulted (the victim.)   Petitioner was granted a new trial in 2016, at which he was acquitted of the charges.”

When asked if that means they think Moses-EL is guilty, Ms. Joseph replied, “Words matter, and it’s important not to confuse different terms.”

“We are not retrying the petitioner," she said.  "We are not seeking to establish guilt or acquittal in this case.  He chose to prove himself actually innocent and we don’t believe he can meet that standard.”

That’s in part because the DNA was destroyed.

“It is certainly unfortunate that the Denver Police Department destroyed the DNA evidence in this case,” Ms. Joseph said. “I’m not going to comment on specific pieces of evidence.  There is a lot of evidence in this case.  The AG made the decision based on a review of all the evidence, including multiple conversations with the Denver District Attorney’s Office, the plaintiff’s own team of lawyers and the victim in this case.”

Disappointment - Outrage

Klein said his reaction to that is somewhere between disappointment and outrage.

“It’s a bit hard to swallow when the AG comes and says that she’s opposing his request for compensation because he can’t prove through DNA evidence, that was destroyed, definitively, that he’s not the perpetrator…without seeming to recognize the cruel, cruel irony there, and without being able to recognize that a man would not fight as hard as he fought to get that DNA tested, if he wasn’t innocent.  He raised money from other inmates to pay to get it tested.”

Klein said the “right thing to do would be to grant this man the compensation that he’s due.”

He said if police had investigated one of the other men initially identified by the victim, they would have found that he had committed other sexual assaults.

“L.C. Jackson went out and committed other horrific crimes,” Klein told Denver7 in an earlier interview, “and if police had properly investigated this, and the right man had been prosecuted at the time, other tragedies and other trauma could have been avoided.”

According to court documents, Jackson testified that he has been diagnosed with, and takes medications for, schizophrenia and bipolar disorder.  He admitted that he experienced shifts in personality, which he analogized to “Dr. Jekyll and Mr. Hyde.”

When asked why he came forward regarding Mr. Moses-EL’s case, Jackson explained that he worried about this failing health and did not want to die with the knowledge that an innocent man was in prison, on his conscience.

Other evidence of innocence?

Klein said that there is other biological evidence pointing toward Moses-EL’s innocence.

Vaginal swabs taken from the victim the morning of the assault were tested by the Colorado Bureau of Investigation.

DNA testing was not in widespread use, so ABO blood typing was conducted.

The only blood type detected was “O,” which was consistent with the victim, who is a Type O secretor, meaning that antigens reflecting her O blood type are found in her other bodily fluids.

According to court documents, Mr. Moses-EL is a Type B secretor, meaning that antigens reflecting his blood type are found in his other bodily fluids, including semen.

Experts called to testify found no affirmative evidence that the contributor of the sperm and semen was a Type B secretor like Moses-EL.

What happens next?

Both Moses-EL’s attorneys and the AG’s office will submit more documentation to court.

Eventually a trial date will be set.

Moses-EL can decide whether he wants a trial before a jury of six or before a judge.

In addition to seeking monetary compensation from the state, Moses-EL is also seeking to hold Denver, former Denver DA Mitch Morrissey and several investigators accountable for the time he spent behind bars.

He filed a federal lawsuit last month claiming violations of his Civil Rights.