June 17, 2008 David Flores case: Des Moines Police admit they had FBI report before trial Judge says hearing will be pushed back By LEE ROOD lrood@dmreg.com A Polk County judge on Tuesday said he will likely push back the June 30 hearing of David Flores, a Des Moines man serving life in prison for a 1996 murder. Judge Don Nickerson said attorneys will need time to authenticate an FBI report that they believe was in the possession of police before Flores was convicted in 1997. The judge urged family members to be careful about talking to the media, saying it could jeopardize Flores' attorney-client privilege. "You don't gain an advantage by trying to try this in the press," Nickerson said. But family members said Tuesday they don't want to be quiet any longer. "David was convicted in the media," his mother, Diane Flores, said. Family members said there were more than 30 stories about David being the prime suspect in the murder of 42-year-old bank executive Phyllis Davis at the time. Flores, who has always contended he was railroaded, asked for his life sentence to be reconsidered after learning that an FBI report pointing to another prime suspect was not given to his defense before his trial in 1997. Prosecutors now acknowledge that a key piece of evidence in the controversial gang-related murder was never disclosed to David Flores' defense lawyers. Court records show Des Moines police are admitting for the first time that they did have an FBI report identifying another suspect in the case when Flores was convicted of the shooting. The revelation could result in Flores, now 31, being freed after 12 years behind bars. Attorneys will hold an emergency meeting this morning with Polk County Judge Don Nickerson to discuss what happens next in the case. In recent weeks, Des Moines police and the Polk County attorney's office have resisted efforts by both Flores' attorney and The Des Moines Register to obtain police records related to that other suspect, Rafael Robinson. Late Friday, however, prosecutor Joe Weeg filed a court motion acknowledging that police did have an FBI report pointing to Robinson as a suspect in August 1996. "This could be a very big deal," said Bob Rigg, a defense attorney who teaches criminal law at Drake University. "How big hinges on how material the judge feels this information is." The state has a legal obligation to turn over evidence that could assist in a criminal defendant defense. Weeg said in his court filing that there was "no evidence" prosecutors were given the FBI report or that they were aware it existed before Flores was convicted. "There was no attempt to hide, remove or destroy any of the attached documents," he wrote. However, legal experts say, it matters little whether prosecutors had the report in their possession; the fact that the evidence was in the possession of police means it was in the hands of the state. Flores faces a June 30 hearing at which Nickerson must decide whether the outcome of his trial would have been different if the defense had the FBI report and other new evidence. If so, Flores' conviction could be vacated and Polk County Attorney John Sarcone would be forced to decide whether he wants to risk retrying a controversial case he once conceded was "skinny." "This filing may be an acknowledgment that they're saying 'we just need to roll over on this,' " said Brian Farrell, a Cedar Rapids attorney who specializes in such post-conviction cases. "That would be a dramatic development, but it's certainly possible." Three people point to another suspect A months-long investigation by the Register found at least three people who have independently come forward since Flores' appeals were exhausted in 2003 to say another man was likely responsible for Davis' death as a result of a gang-related fight. One was a gang member named Calvin Gaines, who already has given a deposition admitting that he helped Robinson, then a 27-year-old fellow gang member, flee Iowa to California after Robinson accidentally shot Davis in a rush-hour gun battle at Ninth Street and University Avenue. Gaines' account was detailed in the long-missing FBI report. Another was an eyewitness who was grazed in the head by a bullet and spoke briefly with one of the occupants of a vehicle involved in the melee. Derek Thompson, a teen-ager who admitted he was terrified of testifying at the time, also has said he is willing to give a deposition saying he saw Robinson inside the vehicle from which prosecutors alleged the fatal bullet came, according to court documents filed by the defense. The third person is Carla Harris, a former girlfriend of Robinson's with no criminal record who previously was not involved in the case. She contacted the Register after reading about Flores' case in January. Harris, who was broken up with Robinson at the time of the shooting, said Robinson told her he accidentally shot Davis while firing at men he had been feuding with in an Oldsmobile Cutlass. Harris said she never knew Flores was convicted for the crime, otherwise she would have come forward sooner. She described details of previous violent incidents between Robinson and one of the men in the rival car - incidents supported by police reports at the time but not printed in Register articles this year about Flores. "I don't want people to try to turn this around me and make it into something I've done. I haven't done anything wrong," Harris said of the upcoming hearing. "I just hope I can help this man. I wish I could have done it sooner." Both Harris and Gaines said in separate interviews that they knew Robinson owned a .22-caliber rifle. Davis was killed by a single .22 caliber bullet as she drove home from work. Harris is expected to be called as a witness at the June 30 hearing. The Register provided details of these accounts and other facts surrounding the crime to Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University School of Law. Warden said he's never heard of an alleged wrongful conviction case in which three separate people came forward independently to name another suspect. "There's an extremely high probability that he's innocent," said Warden, whose clinic has helped exonerate dozens of people. "The fact that you now have three people who don't have any connection to each other and no discernible motive to do anything but tell the truth is just extremely persuasive." He added: "Given the fact there's no physical evidence linking Flores to the crime, and that he's always professed his innocence from the beginning ... it's almost inconceivable that these witnesses could be mistaken or not telling the truth." How Flores learned of FBI interview Steve Foritano, an assistant Polk county attorney, prosecuted both Flores and Jarmaine Allen, one of the other men convicted in the shootout that killed Davis. In 2003 - after Flores' life sentence was upheld on appeal - an attorney involved in Allen's appeals case told Flores he had learned about the existence of the FBI report pointing to Robinson. A court order releasing the FBI report to Allen's defense at the time shows Foritano was sent a copy. Warden said the FBI report is critical because it amounts to exculpatory evidence that might have changed the outcome of Flores' trial. Until this month, the FBI and the police would not confirm for Flores' defense whether the FBI report was part of the original police investigation. Mary Kennedy, Flores' defense lawyer, subpoenaed both the FBI and police, and they refused to comply. This year, Frank Burnette, a defense attorney involved in Allen's post-conviction appeal, finally gave Kennedy a copy of the report. "I am outraged," said Burnette, who handles many appeals cases. "My gut tells me that Flores ought to get a new trial. But I fear the court will find a way to deny it. They always do." Foritano and Police Chief Judy Bradshaw did not return phone calls Monday seeking comment. Sarcone, who has previously declined to comment on the case, said that "the motion speaks for itself and we are preparing for our hearing." If Nickerson rules that the disclosure of the FBI report would not have changed the outcome of the trial, Flores could still appeal his case to the Iowa Supreme Court.

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