New evidence frees man, but struggle to pick up the pieces has only begun
By Stephen Hunt
The Salt Lake Tribune
Glad for his freedom, Miller, 53, remains puzzled and angry at what he views as the absurdity of his conviction. Why, he asks, would a sick man travel 1,400 miles to commit a random robbery that netted $50?
The victim in the case claimed that on Dec. 8, 2000, a robber took her purse, then jumped in her car and tried to steal it. Unable to put the car in reverse, the robber then got out and fled.
In a gravely southern accent, Miller said this week he was in no shape to have committed the crime.
"I had to learn my right side to work again," he said. "It took me five minutes to say, 'Good morning.'"
Miller had lived in Salt Lake City from 1989 to 1999, before returning to his home state of Louisiana, where he says he got a job in the warehouse of a vending company.
After recovering from his stroke, Miller was in Utah again in February 2003, when the Dee's Family Restaurant, at 143 W. North Temple, was robbed at gunpoint.
Police stopped Miller a block away. Within a week, he was charged with robbing the restaurant - and stealing the woman's purse more than two years earlier. The restaurant robbery was later dismissed for insufficient evidence, according to court records.
In 2003, a 3rd District Court jury, relying on eyewitness testimony from the victim and a store clerk, convicted Miller of first-degree felony aggravated robbery. He was sentenced to five years to life.
At trial, Miller testified he missed three weeks of work because of the stroke he suffered on Nov. 25, 2000, which put him in a hospital for four days, followed by recovery at his sister's home in rural Donaldsonville, La.
Jurors learned that employment and hospital records placed Miller in Louisiana two weeks before the robbery and a week afterward.
But prosecutor Kenneth Updegrove contended Miller could have easily traveled from Louisiana to Salt Lake City and back during those unaccounted-for three weeks. Updegrove, now retired and living out of state, said in an interview this week "there was plenty of evidence" that Miller snatched the purse.
In fact, Updegrove said, the suspect acted as if he might have had a stroke. While accosting the woman with a knife, the suspect mumbled unintelligably. Then, when he tried to steal her car, "he didn't have the coordination to put it into reverse," Updegrove said.
When the suspect fled, "he hobbled away," Updegrove said. He added the identification of Miller was "fairly strong" because he has a distinctive gap in his front teeth.
"It seems strange to me that over a period of years, suddenly things start showing up," Updegrove said.
Yet appellate attorneys Margaret and Patrick Lindsay recently persuaded prosecutors to dismiss the case after gathering additional evidence - including testimony from a home health-care nurse who saw Miller on Dec. 7, 2000 - which narrowed Miller's window of criminal opportunity to a mere seven days.
Said Deputy Salt Lake County District Attorney Kent Morgan: "Because I believe there was not a substantial likelihood of success on the merits, should the case have been retried, I dismissed prosecution. And I wish Mr. Miller well."
In his appeal, Lindsay argued that Miller's trial attorney, public defender John O'Connell Jr., had done a poor job.
But Lindsay said his personal assessment of O'Connell's work is better than what he asserted in legal briefs.
"To be completely thorough, he probably should have tracked down the home health-care nurse," Lindsay said. "But I'm sure John thought he had enough evidence to acquit him."
Miller is less generous."He just stopped trying."
During a 2005 evidentiary hearing, O'Connell testified that Miller's sister, who was caring for Miller following the stroke, agreed to come out and testify, but later declined, apparently because of trouble with her 16-year-old son.
Even without the sister, O'Connell testified, he thought Miller's alibi was "pretty strong," based on the work and hospital records.
O'Connell also testified that he felt the eyewitness identification of Miller were "very weak."
Contacted in San Diego, where he works as a public defender, O'Connell explained that the woman initially identified Miller from a photo line-up that her husband was examining in connection with a different crime.
"She saw his picture and said, 'That looks like the guy who robbed me,' " O'Connell recalled.
In hindsight, O'Connell said, he should have done more follow-up, especially with the home health-care nurse.
"But they had referred him to one [nursing] agency, and it was not the agency they used," he said. "The sister was not helpful. And Harry couldn't remember - he'd had a stroke."
O'Connell said he was pleased Miller is now free. "It was one of those cases that bothered me because I didn't think he'd done anything wrong."
The victim testified she was 100 percent sure he was the thief. But she had told police the robber was between 18 to 21 years old, said Miller, who was then 47 and had gray in his beard.
"I think sometimes juries here, and across the nation, don't come into court with an 'innocent until proven guilty' attitude," said Lindsay. "I would have thought that even with what evidence John [O'Connell] had, there was at least reasonable doubt."
Lindsay said he had to personally fly to Louisiana to obtain additional records and witness affidavits to present to the Court of Appeals.
"That's one reason I don't fault John [O'Connell] too much," Lindsay said. "These people were tough to track down."
Later, after the appeals court ordered trial judge Shiela McCleve to hold an evidentiary hearing, Lindsay arranged for witnesses to come to Utah, which presented new problems.
"They had never really left the area before, and were scared to death of flying," he said.
Miller's niece - who also had cared for him following the stroke - agreed to testify at a September 2005 hearing, but only if she could ride a bus.
Then, because Hurricane Katrina disrupted travel, the niece's testimony was delayed for a month.
Following the hearings, the findings were sent back to the Court of Appeals, which in May ordered a new trial based on a stipulation by attorneys.
A new trial was scheduled to begin July 12. Prosecutors offered to free him immediately if he pleaded guilty to a misdemeanor. Miller said he was tempted, but is happy he bided his time, despite the extra months he spent incarcerated.
As he walked out of prison on July 6, Miller said, he was overwhelmed by emotion.
"It was like I was a little kid and somebody slapped me upside my head. I started crying like a little baby."
When he can afford a bus ticket, Miller plans to return to Louisiana, where he hopes to get a welding job, stay with his daughter and get acquainted with three grandchildren who were born while he was incarcerated.
"I got five grandchildren, but I only seen two of them."
||Truth in Justice