Part 3: Information kept from defendants in two Durham cases
September 6, 2011
BY J. ANDREW CURLISS - Staff Writer
Kidwell's lawyer, Lisa A. Williams of Durham, said she was stunned when the forensics file was disclosed late in his trial.
"I couldn't believe it," Williams said. "I thought my head was going to explode."
Now, lawyers for both men are arguing to the state Court of Appeals that the information was provided so late that it gave little time to pursue leads and undermined a fair verdict. Both men, who say they are innocent, want new trials.
The cases are the latest in which Cline's handling of evidence over the past several years is in question, a News & Observer investigation shows.
Already, a judge has dismissed two murder charges because evidence was withheld from defendants or destroyed - one of them three weeks ago in a case involving bones of a woman who police believe was killed. Both decisions have been appealed.
The Court of Appeals has vacated another conviction in the case of Frankie Washington, saying there was "repeated neglect" in that prosecution. In another case, the subject of a report in Monday's N&O, Cline made several misstatements in court, and evidence appears to have been withheld from the defendant and his lawyers.
Cline says she has been fair to the defendants. But she casts herself as a representative of victims of crime, no matter their status in life.
"It's important for a prosecutor to continue to fight, no matter what, for victims who cannot defend themselves," she said in an interview. "There are no throw-away victims of crime."
Williams, however, said Cline had gone too far in the methods she used to convict both men.
"The Founding Fathers didn't give us irrelevant rights," Williams said. "All of us are safe when everyone's rights are protected. And when prosecutors bend the rules for their conveniences, then we're all vulnerable. That's why people should care - constitutional rights are always relevant, to everyone."
Rulings favor Cline
It is easy to see why juries convicted both Richardson and Kidwell.
Kidwell was arrested about 24 hours after the homicide, driving the victim's truck westbound on Interstate 40 - in Oklahoma. Richardson signed a five-page confession that includes many details of the crime.
Neither man testified.
Richardson's appeal, however, says that key evidence was "suppressed" by the state. The appeal has not yet been heard by a panel of three judges
Kidwell's appeal argues "repeated failures" by Cline. The cumulative effect was unfair, Kidwell's lawyer argues.
"The State (made) deciphering the evidence found at the crime scene a rabbit warren of complexity," lawyer David Neal wrote. Kidwell's appeal was reviewed by three judges Aug. 17. A decision is expected within 90 days.
Judges in the trials said that information "material" and "favorable" to Kidwell and Richardson had not been turned over. Cline says the problems were not intentional and should not affect the guilty verdicts. She expressed absolute certainty that the trials were just.
In dealing with the trial disclosures, the judges considered dismissing the charges at the request of defense lawyers but declined to do so. As remedies, the judges allowed days to pursue new leads and tests.
In Kidwell's case, the judge said Cline had been negligent.
In the Richardson trial, Superior Court Judge Cressie Thigpen Jr. said it wasn't Cline's fault that one statement didn't come out until trial. "I do not think that the DA's office has done anything incorrect in this matter," he said. "I want that clearly understood."
The state Attorney General's Office, which is handling the appeals, says the trial judges made no errors.
The issue in these cases is the legal principle in the U.S. Constitution that no one will have life or liberty taken away without "due process" of the law.
The courts and lawmakers have said it means each prosecutor must make sure defendants are given evidence gathered by the state that would help their defense, and it must be given in time for them to make good use of it.
The duty falls on the prosecutor in charge of each case.
In 1995, the U.S. Supreme Court said a prosecutor's duty is "to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."
"The prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable," the justices said.
In North Carolina, legislators mandated in 2004 an "open file" policy for prosecutors in an effort to eliminate faulty verdicts. The state's rules for a prosecutor say she must make a "reasonably diligent inquiry" to find favorable information in the state's files.
Cline said she did that in both cases. But at the trials of Richardson and Kidwell, defense lawyers turned up information prosecutors had not provided.
Two drops of blood
Kidwell was accused of a bloody murder in February 2005 at a Kangaroo convenience store on North Roxboro Road.
The assailant, police believe, killed Crayton Nelms, a father of two children working the night shift, and then stole money. The cause of death was trauma to the head. There was also forced entry into an office, where the surveillance video was stolen.
When he was arrested, Kidwell gave conflicting statements about how he got the truck and why he was heading to Las Vegas - either to see family, or because he'd had an argument with his mom back in Durham. He tried to escape through the ceiling at the Oklahoma jail.
Police seized a pair of shoes from the truck and $627 in cash. The shoes had not been cleaned - and did not have blood on the bottom. Nelms' truck, driven by Kidwell, didn't have blood in or on it. Nor did Kidwell's clothes.
A State Bureau of Investigation analyst reported finding Nelms' DNA in a drop of blood found inside the tongue of one of Kidwell's shoes. The SBI also found Nelms' DNA on another drop, found on a $10 bill, in the wad of money recovered from Kidwell.
Cline told the jury those findings amounted to a "trail of blood" from Durham to Oklahoma.
Still, without any eyewitnesses placing him at the scene, there were questions.
Cline and Kidwell's lawyer, Williams, clashed throughout the trial about what had or hadn't been provided from the state's files. At one point, the jury reported to the judge hearing loud arguments.
The judge, Orlando Hudson, expressed skepticism at the time about how far-reaching the state's open-file law is after Williams said she had not had access to everything.
Indeed, she hadn't received all of it.
A secret file
A big focus was on the office in the convenience store where the surveillance tape was stolen. The assailant would have a motive to go get it - it's not in a public area - and so evidence from there would be important, Kidwell's lawyer believed.
The office door was forced open. The police found a fingerprint near it.
A lockbox was forced open to get a key. There was blood near it that was not tested, and a fingerprint.
A footprint in blood was said to be in the office, though its exact location was later cast in doubt by conflicting testimony. Photos did not show exactly where the print was recovered.
And as it turns out, there were other fingerprints and fresh footprints gathered at the crime scene by the forensics experts that did not match with Kidwell.
The police did report a match to Kidwell of two palm prints in the store's bathroom. But police did not provide any photographs of the dusted sink showing where those prints were gathered.
Kidwell hadn't been told about the other fingerprints - 16 in all - that didn't match.
A Durham police analyst, Rebecca Reid, testified that the police write a report only if there is a match to the suspect - unless the district attorney says otherwise.
"The only way we do a report that there was not a match (is) if the DA requests a no match report," Reid said.
So the evidence that didn't match Kidwell was kept in the separate forensics file, and not disclosed.
Cline told the judge that she had made repeated attempts to get the information from officers who worked the case, but clearly some things had fallen "through the cracks."
In an interview, Cline said she has put new procedures in place to ensure full reports are written. She said she still believes in Kidwell's guilt.
Kidwell's appeal offers other possibilities about what happened, describing the state's evidence as "tenuous" and "consistent with the crime of accessory after the fact."
Kidwell could have stumbled into the scene and decided to take money and the truck, Neal, the lawyer, wrote in Kidwell's appeal.
"Or he could have come to the scene after the killing - with no foreknowledge of a planned murder - at the request of a friend or relative, agreed to drive him away, and then continued on west himself," Neal wrote.
A disputed confession
In the other case, Angel Richardson says the statement he gave to police - and that was the basis of his conviction - is false, though it bears his signature and his hand-written initials on changes made to every page. He says he did not confess.
The police work unfurled around a group of men connected by the shooting of the victim, Marlon Rand, and surrounding events. Police talked to a snitch, Lemuel Sherman, and a police informant and possible witness, Dallas Kelly. They questioned a suspect, Reginald Jones. And their efforts focused into the highest ranks of a gang called the Face Mob Family, led by Donald Shealey and his underboss, Khalid Usama Abdallah.
Richardson was charged in the killing of Rand, a father of five, who was shot north of downtown Durham while getting in his car in December 2006. Rand was targeted because he was believed to have robbed the gang leader.
Richardson's DNA was on cigarette butts and a beer can near the scene of the shooting, a vacant house where he says he sold drugs.
He had been in jail for about a month when he called police in January 2007, ready to talk. He wanted out of jail.
Richardson had a lawyer at the time but signed a form waiving the lawyer's right to be present for what ended up as about a six-hour interview. Richardson said a video camera was in the room, and a red light was on. Police said they have no recording of the interview, but they say an officer read the statement back to him line by line.
Police at the time were eager to listen. They had been concerned about more than that one killing. They believed it was part of a larger feud among gang members.
In the confession, Richardson says he got the gun from a man in the gang. He staked out Rand, then ran and fired four shots at him, according to the confession. The document says he fled, dumping all of his clothes - he was wearing black - in a Dumpster.
He said Sherman picked him up nearby and later paid him $750.
Sherman was first to cut a deal with the head of homicide. He would give a name of the shooter and couldn't be charged with anything beyond being an accessory after the fact to murder.
Sherman fingered Richardson.
Kelly, a police informant, wrote out a statement about what he knew of the crime the day after it happened.
Kelly said he was about a block away. He heard a car being driven away after its door slammed shut.
"I then heard approximately four gunshots," he wrote. "Approximately one minute after, I saw Little Head running with a gun."
Little Head is not Angel Richardson.
It was the known nickname for a man named Reginald Jones, police say. Jones was a cousin of the victim, and the two had an argument earlier that day, witnesses told police. He is wanted in other crimes but has not been arrested.
In prosecuting the case, Cline kept the informant's statement secret from the defense for nearly a year.
Cline sought and received an exception to the open file law on the basis that a witness could be hurt if his statements were made known.
Williams, who had been Kidwell's trial lawyer, was also part of Richardson's defense team. Williams objected, and wanted the judge to scour the statements for "exculpatory" information, meaning it would help Richardson and affect the trial's outcome.
Cline told Judge Hudson that there was nothing exculpatory in that statement as it related to Richardson. The judge sealed the documents.
But then Kelly was killed in an unrelated incident, and Williams got the statement.
She considered the statement to be huge for Richardson's defense because it showed another man running from the scene with a gun. Richardson's team first sought a dismissal, saying Cline had "misled the court and the defense" and that they could not interview Kelly or assess his credibility. That was denied.
"I assumed Little Head was Angel Richardson," Cline said in an affidavit at the time. "I was mistaken and did not ask the officer who was in court." Cline said she then checked further, and the police had cleared Little Head of involvement.
Cline said in an interview in July that she still believes that Kelly's statement was not exculpatory.
But Kelly's statement formed the heart of Richardson's defense: Little Head did it. It was the focus of how his lawyers questioned witnesses and argued to the jury.
A conflicting statement
As the trial went on, it became clear that federal agents and the Durham police were probing the gang leader who they believed had ordered Rand killed.
During the trial, Richardson's lawyers filed a motion for all documents related to the wider probe that involved their client. And they got something: a statement taken by a Durham police officer who was part of the task force.
The task force officer had already testified in Richardson's trial but didn't say anything about an interview he did a year earlier with the gang's second-in-command about how the victim was killed.
As it turns out, the underboss told the officer a version of what happened. It also didn't implicate Richardson.
The underboss said he had met with Sherman, the gang member who fingered Richardson, outside a Waffle House in Durham. The underboss said he delivered $1,500 to Sherman as a payment for the killing but kept $100 for himself.
Sherman described to the underboss what the victim was wearing when he was killed, according to the task force officer's notes.
"I'm real," Sherman said, according to the underboss. "I killed that n---a. ... I won't talk. Just take care of my Mom if anything happens to me."
The officer did that interview in October 2008, 15 months before the trial.
The judge overseeing the case, Thigpen, did not hold Cline responsible for not turning over the statement. Thigpen is now a member of the Court of Appeals.
Still, he said Richardson should have received that statement, and the trial was held up so the underboss could be brought from a Colorado prison to testify.
Cline: No doubt
Cline said in an interview that she had no way of knowing about the underboss's statement because the Durham police officer who received it was in a dual role with a federal task force.
"There is no way for everyone to know about everything," Cline said. "I didn't know about this statement because it was in a federal investigation. It was in the FBI file and not the state file."
Cline said she has no doubt that Richardson is guilty. She bases that on his confession, his DNA found on the beer can and cigarette butts nearby. She also says Richardson had a particle of gunshot residue on clothes found at his house.
Richardson's appeal says the underboss's statement came up too late for any fair use.
"The prejudice caused by the year-long suppression of the (underboss's) statement from the end of 2008 until the end of the second week of trial could not be cured without additional time and a new trial," the appeal says.
Richardson said he still remembers the moment the verdict was read. Rand's mother celebrated, praising Cline in the courtroom.
"She was just content with anybody being convicted," Richardson said. "It was thank you, thank you, thank you. Thank you for what? The one who probably killed her son is still out there."
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