Chicago Tribune

Ruling could put prosecutor on trial
Anthony Harris' murder confession was coerced and inaccurate. He's suing official who used it against him.
By Maurice Possley | Tribune reporter

May 14, 2008

The legal story of Anthony Harris began in July 1998 when the 12-year-old boy was charged with the murder of a 5-year-old girl. Now his case has wound its way through state and federal courtrooms and even reaches into the sands of Iraq.

Nearly a decade after Harris was convicted—wrongly, the courts have since ruled—of the murder of Devan Duniver in New Philadelphia, Ohio, a city south of Cleveland, an appeals court has taken the unusual step of ordering the chief prosecutor to go on trial for civil damages.

"It's rare for prosecutors to be tried for civil rights violations," said Bennett Gershman, a law professor at Pace University and a former New York state prosecutor who wrote a legal textbook on prosecutorial misconduct. "I don't know that anybody keeps track of the frequency of prosecutors going to trial. But it's my sense that it is extremely infrequent."

It is a ruling that, according to some legal experts, should send a message to prosecutors, who historically have been granted immunity from damages so they may prosecute cases without fear of legal retaliation by defendants. The message: They cannot automatically assume that a confession is the truth.

Outraged prosecutor
The focus of the ruling is the Tuscarawas County prosecutor, Amanda Spies, who was so outraged when Harris' conviction was thrown out that years later, when Harris attempted to enlist in the Marines, she initially scotched his application by telling a military recruiter that Harris was really guilty.

Chicago lawyer Kenneth Apicella, who represents Spies, said, "We certainly feel that the judge [in U.S. District Court] considered all the evidence and set out what we believe is a reasoned opinion." Apicella has filed a petition for review with the U.S. Supreme Court.

Today, despite serving two years in a juvenile jail before the case was thrown out, Harris said he does not hold a grudge against his country. He was ultimately accepted as a Marine and recently returned to the U.S. after serving in Iraq for seven months.

"We just believe in America," said his mother, Cyndi Harris, who no longer lives in the area.

The story of Anthony Harris is one of resilience and resolve, and the case now presents a rare opportunity for a one-time defendant to put his prosecutor on trial.

Devan Duniver was found dead on June 28, 1998, a day after she disappeared. Because Anthony Harris lived nearby and had baby-sat Devan from time to time, New Philadelphia police asked him to come to the station for a voice-stress test.

But the test quickly became an interrogation, and Harris was accused of murder.

Within hours, according to police, Harris gave a confession, admitting that he had killed the girl. Upon seeing his mother afterward, he immediately recanted but was ignored.

When Spies, the chief prosecutor, came to the station and listened to a tape of the interrogation, she ordered the boy arrested and charged.

Anthony Harris was put on trial as a juvenile, convicted, and sentenced to be locked up until age 21.

"Shell-shocked" was the word Cyndi Harris later used in a deposition to describe her son. "He didn't understand why he was there."

But in June 2000, an Ohio appeals court threw out the conviction, ruling that the interrogation was so coercive that Harris "had no choice but … to confess."

The court found that the confession not only was riddled with inaccurate information, but that the details that were accurate had actually been fed by the police interrogator.

After Harris was released, prosecutor Spies said: "Frankly, in my heart and in my gut, I feel that Anthony Harris is responsible for the murder of Devan Duniver."

No one has ever been charged with the killing. Since then, lawyers for Harris have uncovered evidence of other suspects that police knew about at the time but did not aggressively pursue.

Anthony Harris declined to be interviewed but said in a deposition in his lawsuit that after his release, he battled a drinking problem and at one point tried to commit suicide.

"They ripped my family and [me] apart," he testified. "It's like they just stomped a hole in my life."

Harris fought his demons, according to his mother, and graduated from high school. When he turned 18, he sought to enlist in the Marines to fulfill a childhood dream. His grandfather had been in the Air Force.

Harris told Marine recruiters about his criminal case and that the case had been tossed out. When a recruiter met with Spies to verify the information, he was stunned by her reaction.

Spies responded in a hostile voice and used an obscenity, the officer later testified.

Enlistment fails at first
When the officer was directed to the clerk's office to look at the file, he found similar animus. A clerk told him, he recalled, "Good. … Maybe he [Harris] can get shot or get killed in Iraq … because that's what he deserves." Harris was rejected by the Marines. He tried again and was accepted two years later.

After police settled the claims against them for an undisclosed sum, Spies' attorneys argued that she was protected by immunity. U.S. District Court Judge John Adams agreed and in 2006 dismissed the case.

But in January, the 6th U.S. Circuit Court of Appeals in Cincinnati reinstated the lawsuit and ordered the case to trial.

Steve Drizin, a Northwestern University School of Law professor and an expert on false confessions, called the appellate ruling "a stunning turnabout."

Noting that Spies would have been immune from a lawsuit if she could have reasonably believed the arrest was lawful, Drizin said, "Spies probably thought she was on safe ground because she had a confession."

"In many jurisdictions where prosecutors play a role in advising officers, prosecutors may now have to review confessions and interrogation tapes to determine if the resulting confessions are involuntary … and inherently untrustworthy," he said.

"If this opinion requires a greater level of pre-trial screening, it could reduce wrongful arrests and wrongful convictions," he said.

Cyndi Harris says her son, a lance corporal, "has a strength about him and courage and a strong faith."

She is hopeful that the case will send a message to prosecutors and police. "I hope this will help other families," she said. "It could happen to anybody.

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