The Retrial of Clarence Moses-EL Day 2: “Compounding a Gross Miscarriage of Justice”

moses elEditor’s Note:  The following commentary was submitted to The Nation Report by Nancy Peters, a Denver resident and writer for Get Loud Magazine who observed the first day of jury selection in the retrial of Clarence Moses-EL.  

Today I sat in the courtroom and observed the jury selection process for the retrial of Clarence Moses-EL whose conviction on the charge of brutally raping a neighbor twenty-nine years ago was vacated last December after another man confessed to the crime.  For Denver District Attorney Mitch Morrissey to insist that Mr. Moses-EL be retried despite Judge Kandace Gerdes’ assertion that new and existing evidence (and lack thereof) would surely lead a jury to acquit him–and after Mr. Moses-EL had already served over half of his forty-eight year sentence for a crime of which he was innocent–is cruel and heartless as well as a gross miscarriage of justice.  And this on top of the knowledge that the only substantial piece of “evidence” leading to Mr. Moses-EL’s original conviction was the victim’s stating his guilt had been revealed to her in a dream!

Morrissey somehow succeeded in getting Judge Gerdes, in whose courtroom the case is being retried, to agree that two huge facts related to the case would be kept from the jury:  that Mr. Moses-EL had been tried and convicted years ago and had already served twenty-eight years behind bars; and that, in direct violation of court orders, Denver police had trashed critical DNA evidence that could have exonerated Mr. Moses-EL.  The resulting charade which this unnatural suppression of important facts forced the prosecuting and defense attorneys to enact with potential jurors merely underscored the absurdity of this whole retrial situation–one entirely orchestrated by Morrissey for his own egotistical purposes and with no concern for its potentially devastating effect on either Mr. Moses-EL or the victim of the rape, who must now relive every horrific detail of the event which occurred so long ago.

The prosecution repeatedly instructed potential jurors about the absolute necessity of simply accepting that the crime happened twenty nine years ago, and asked them whether they could be trusted to NOT speculate why the trial was just happening now.  Similarly about DNA evidence:  would-be jurors were questioned whether they could just accept without question the possible lack of any DNA evidence.  The confusion and anxiety, not to mention the not-too-subtle pressure to lie, which such bizarre demands placed on these people, were palpable.  Who could realistically NOT wonder about these unexplained circumstances?  Is making such unrealistic demands fair to people who are just trying to do their “civic duty?”

Hiding this information about the DNA evidence also withholds from the jury the very relevant fact that Mr. Moses-EL went to the trouble of raising $1000 from his less-than-wealthy fellow inmates to have the DNA around the crime scene evidence tested, knowing that this information would prove whether he was the perpetrator.  Is it logical that a guilty person would do this?

In jury selection, the court supposedly goes to great lengths to try to determine which potential jurors have the intelligence, integrity, and trustworthiness to make a valid decision about the case–one on which the defendant’s life depends, and to impress on potential jurors the importance of keeping an open mind and weighing “all the facts.”  Yet this court does not trust or allow these jurors to know and assess all the facts, which essentially renders their ultimate decision invalid.  If I were a juror in this trial, I would be outraged upon learning, at its conclusion, of the grotesque deception which had been perpetrated on me and my colleagues.

In addition, this highly unnatural situation places on the proceedings the ridiculous burden of finding twelve jurors who have heard nothing about his case in the news, and therefore are unaware of the facts which, to serve on this jury, they can’t know about.  And then, once twelve of these virgin, head-in-the-sand citizens are found, their blissful ignorance must be maintained throughout the trial.  Beyond not reading, not researching, not discussing the case with anyone, they’d better not go out in public at all, where they might just overhear the words, “DNA evidence was trashed” or “Retrial after all those years in prison!” and have to be excused.

If Mr. Moses-EL must suffer the injustice of a retrial under such circumstances, it would be reassuring if at least some of the selected jurors were African-American, like himself.  But not one turned out to be, and the judge denied defense’s post-selection motion to redo the process based on the fact that the jury pool did not proportionately reflect the Denver population.  Indeed, an excellent case could be made for requiring that ALL jurors in this trial, like the defendant, the victim, and all others directly involved in the events, be African American people–people who would be more likely to understand what it means to grow up in the projects without opportunities, to have to steal to feed one’s family–and to be displaced and made homeless when those very projects are razed to make way for the gentrification of Five Points.  Instead, we end up with jurors (except possibly for those who are Hispanic or Latino people) who do not “have to” know about the profound injustice toward people of color that is part of the fabric of our criminal “justice” system–injustice which, due to their privilege, is invisible to them.

But just consider the line of questioning the prosecution pursued with potential jurors, “How do you feel about law enforcement?  How do you feel about the justice system?”  The African Americans replied truthfully that the police follow them around and no, the justice system doesn’t work for them, virtually guaranteeing their elimination.  White potential jurors, on the other hand, based on their relatively more privileged experience, could much more easily report having confidence in the justice system, thereby avoiding elimination.

One black potential juror was excused after explaining that serving would place a sever financial burden on her, due to being a single mom and working two jobs.  Given that people of color, on average, are doing much worse economically than white people, should it be surprising that fewer of them end up serving on juries?

Following selection of the jury, which thankfully does seem to include a number of people who might identify as Hispanic or Latino, both sides made their opening statements, laying out their case to the jury.  Most remarkable is that the prosecuting attorney described a scenario in which the rape victim stated she clearly saw and knew her attacker to be Mr. Moses-EL, directly contradicting statements she’d made in the proceedings years ago, to the effect that she only came to realize he was the perpetrator after it was revealed to her two days later in a dream.  To accommodate this new “reality” her eyesight is much better in the current story version than was reported the first time around.  And, in this new version, the police officer who arrives on the scene doesn’t ask her who did the crime, but rather “Who were you with?” thereby accounting for her giving the names L.C., Darnell and Earl.  And the dream has been reworked so that now it’s more of a PTSD-type vivid recollection.

My closing thoughts after my first day observing the trial are about the motives of DA Mitch Morrissey.  At the beginning of his term in office, he took credit for advancing the use of DNA evidence to identify crime perpetrators–among them L.C. Jackson, who in 2007 was convicted of the “cold case” 1993 rape of a woman and her child.  Yet Morrissey refused to reopen the case against Mr. Moses-EL, despite knowing the similarity between the two cases and that the victim in the Moses-EL case had originally named Jackson as her assailant.  After Jackson confessed to Mr. Moses-EL that he had been the one who had assaulted the victim, Morrissey’s office fought for two years to keep him from confessing in court.  And while the DNA evidence destruction occurred before Morrissey was D.A., he was part of the D.A. office in charge when it occurred, and he knows that advertising this blunder will not look good for that office.

And, as Denver Post reporter Noelle Phillips speculated in her story in today’s paper, this outgoing D.A. realizes that someone must be held accountable for the crime for which Mr. Moses-EL is now being retried.  If Mr. Moses-EL is acquitted, then Jackson must be tried.  Having gone all-out to prove Mr. Moses-EL is guilty, how will they then make the case against Jackson?  And then there’s the very real possibility of Mr. Moses-EL suing the city, should he be acquitted.

And so, knowing the egotism, and ruthlessness of Morrissey, and the power and vested interest of the D.A.’s office, and despite the obvious lack of evidence in this case, I fear for Mr. Moses-EL, a man I believe is innocent and should be finally, better late than never, be allowed to try to pick up the pieces and have a decent life.

Mr. Morrissey, does Mr. Clarence Moses-EL’s black life matter at all to you?  I think not.

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