Omaha World Herald



Judge will hear new evidence in murder case; convicted man has maintained his innocence for 9 years
By Joe Duggan / World-Herald Bureau

September 18, 2016

LINCOLN — A gunman approaches a car idling in an Omaha fast-food drive-thru on a summer afternoon and fires the bullets that end Raymond Webb’s life.

Two eyewitnesses take the stand and identify the shooter as a former prep basketball standout who had gone on to play at the University of Nebraska at Omaha in the early 1990s. A jury convicts Antoine D. Young and a judge sends him away for life.

But Young has always insisted he wasn’t the daylight executioner nine years ago. Now the 42-year-old inmate has persuaded a judge to hear out his theory about what really happened on Aug. 25, 2007, at the Taco Bell near 62nd Street and Ames Avenue.

Young believes he can show that while an innocent man rots in prison, the true killer of Raymond Webb is about to walk free.

Attorneys with the Nebraska Innocence Project and the Midwest Innocence Project in Kansas City, Missouri, have obtained sworn depositions from several witnesses, including at least one who has implicated a 39-year-old Omaha man currently in prison on a gun charge unrelated to the Webb shooting. The man is scheduled for release Tuesday.

Douglas County Attorney Don Kleine said the right gunman is serving life for Webb’s murder.

“Two eyewitnesses identified Young,” the county attorney said. “The defendant testified at trial and he put on an alibi defense. Obviously the jury didn’t buy it.”

Kleine said police talked to friends and relatives of Webb who said bad blood between the victim and the man due for release this week had resulted in a long-running, violent feud. But detectives eventually eliminated him as a suspect after he passed a polygraph examination, according to court records.

The World-Herald is not naming the man because he has not been charged in connection with the Webb shooting.

Last month he was transported from a state prison in Lincoln and led, shackled and handcuffed, into a Douglas County courtroom, where he refused to answer a barrage of questions from Young’s lawyers. Among other things, he was asked if he killed Webb or knew who did.

“I definitely plead the Fifth,” he said, asserting his constitutional right not to answer questions that could incriminate him.

The courts have reviewed Young’s case in the past. In 2010 the Nebraska Supreme Court upheld his conviction on direct appeal. The high court also has rejected Young’s request for DNA testing of a shirt and bullet casings the police recovered at the crime scene.

But Young’s Innocence Project legal team has obtained new evidence the courts haven’t weighed before, said Tracy Hightower-Henne, executive director of the Nebraska Innocence Project. They are seeking a new trial under a motion for post-conviction relief.

The claims involve allegations that his trial attorney put on a defense so inadequate that Young’s constitutional rights were violated. Among other things, Young says, the defense attorney failed to show the jury that the prosecution’s witnesses made false allegations or that there was another credible suspect.

“Mr. Young has presented this court with persuasive evidence demonstrating a disturbing likelihood that an innocent person has been convicted and sentenced to life in prison while the actual perpetrator of the crime remains free of this murder,” Young’s lawyers wrote in response to the state’s motion to dismiss the claims.

Earlier this year Douglas County District Judge Peter Bataillon agreed to hear evidence in support of Young’s innocence claims. The prosecution conceded a hearing was necessary for allegations related to ineffective legal assistance.

That hearing was originally scheduled to take place last month but has now been scheduled for four days beginning Feb. 21.

Omaha attorney David Herzog, who represented Young at trial, said he “totally disagreed” with his former client’s claims that his defense was inadequate.

A court document that spells out Young’s case has been sealed by the judge to protect the identities of certain witnesses. They fear the felon who has been accused and is about to be released. As a result, Young’s lawyers have said they cannot discuss the evidence described in the document.

But The World-Herald reviewed additional court records in the case, including judicial orders and a detailed post-conviction motion filed by Young in 2012. The records spell out some of the evidence Young hopes will help win a new trial.

The trial

Young hired Herzog to represent him after he was charged with first-degree murder and weapons counts in the Webb homicide. The case went to trial in January 2009.

Herzog called three witnesses, who confirmed Young’s alibi that he attended a family reunion at Miller Park, 4 miles from the crime scene. One of the witnesses testified she had seen Young manning a grill from roughly 1 to 5 p.m. that day.

Young also took the witness stand and declared his innocence. And his lawyer asked Young about his college days, which prompted the defendant to say he had enjoyed an “outstanding” career at UNO.

During cross-examination, however, the prosecution presented academic records that showed Young had received failing and incomplete grades in some classes.

But the trial really came down to eyewitness testimony. Eyewitness misidentification is the most common factor in wrongful convictions, playing a role in 70 percent of the convictions overturned by DNA testing, according to the Innocence Project.

The jury in Young’s trial heard from six witnesses who testified about what they saw shortly before 3 p.m. on Aug. 25, 2007.

While the accounts varied in some respects, four of the witnesses agreed the gunman was wearing a black shirt. One said the shirt was white, and the sixth apparently was unsure.

Four of the witnesses, including a passenger in a vehicle in front of the victim’s car, did not identify Young as the shooter.

Clearly the two witnesses who did identify Young carried more weight with the jury.

Ricky Lyncook and Howard Youngblood testified they had been sitting with Young outside a barbershop across from the Taco Bell. When Webb’s maroon Chrysler 300 pulled into the drive-thru, they said they saw Young weave across the busy street, circle around the car and fire a handgun into the driver’s-side window.

Lyncook also would testify he heard Young curse moments before he ran across the street, muttering about how Webb had flashed a gun at him.

In addition, Lyncook would tell jurors he came forward because if he were gunned down he would hope witnesses would do the same for him.

“I guess it’s out of the goodness of my heart,” he testified.

The trial lasted five days. The jury convicted Young after deliberating for less than three hours.

Herzog blasted jurors for reaching the decision so quickly.

The prosecution’s witnesses

Young has attacked the credibility of the two witnesses who identified him as the shooter. He argues that neither man implicated him when they were first interviewed by police.

But Young has focused much more on Lyncook, who was the primary witness at trial.

Young says jurors were not made aware that, shortly before trial, Lyncook had contacted Young’s brother, Jarvis Young, and offered to withhold his testimony in exchange for $10,000. The contact came in the form of text messages.

“That information created extreme doubt regarding Lyncook’s actual knowledge and real motivation for ‘coming forward’ as a witness,” Young wrote in his 2012 post-conviction motion.

In 2009 Jarvis Young was facing charges of being an accessory to the Webb homicide, so he brought the text messages to the attention of his lawyer, Matthew Kahler of Omaha.

In a sworn deposition, Kahler said he encouraged his client to report the messages to police, which Jarvis Young did.

In addition, Kahler said he showed the messages to one of the deputy county attorneys who were prosecuting the Antoine Young case. The prosecutor responded by calling Lyncook and “yelling” at him, Kahler said in the deposition.

Kahler said that after the call the prosecutor told Kahler his client should file a police report on the matter.

In his deposition Kahler also said he showed the messages to Young’s attorney before the murder trial.

Young now alleges the prosecution failed to meet its legal obligation to turn over all evidence that would assist Young’s defense. He argues they did not alert his lawyer about the Lyncook text messages.

Kleine, the county attorney, said he is unaware of any credible evidence of misconduct by his deputies. And there’s no dispute that Young’s lawyer knew about the messages before trial, he added.

“He can raise all kinds of issues, but is that accurate?” Kleine said. “We’ll respond in the appropriate proceeding.”

Using Nebraska’s public records law, Young’s lawyers also obtained a recording of a phone call Lyncook placed from the Douglas County Jail to Young’s brother, once again offering to sell his silence. The offer was made with respect to a pending trial on Jarvis Young’s accessory charge.

But shortly after Antoine Young was convicted, the county attorney dropped the accessory charge against his brother.

Eleven months after he was the primary witness in a murder trial, Lyncook was found dead in his cell at the jail. An autopsy determined the 26-year-old man died of natural causes.

The trial attorney

Bad defense lawyering is a primary reason Young says he deserves a second trial.

Young asserts his attorney should have gone after Lyncook over his offer to withhold testimony in exchange for money. But the defense lawyer didn’t bring it up at trial.

Young also asserts Herzog could have called additional witnesses from the family reunion at Miller Park to vouch for his whereabouts at the time of the shooting.

The prosecution undermined Young’s credibility by confronting him with his college academic records. But Young said when he called his UNO career “outstanding” he was referring to basketball. Herzog should have done a better job preparing him to testify, he argued.

But mostly Young said his former attorney should have done more to show jurors there was a third party who police considered a suspect and who had motive to kill Webb. The third party should have been called as a witness, Young further contends.

In a phone interview, Herzog said he disagreed with Young’s claims that he was poorly represented at trial. Herzog said he raised “meritorious defenses” on behalf of his client.

Young deserved to be acquitted, Herzog added.

But otherwise, he said, attorney-client privilege prevented him from discussing the matter in detail.

“I’m hopeful for Mr. Young and his family,” Herzog said. “I hope he’s vindicated.”

joe.duggan@owh.com, 402-473-9587

Innocent Imprisoned
Truth in Justice