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Clarence Moses-EL

Other Colorado Exonerations
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On August 16, 1987, a 23-year-old woman spent the evening drinking several beers before returning to her home in Denver. The woman said she fell asleep after 2:00 am and was awakened by someone assaulting her. She said her attacker punched her in the face, raped her anally and vaginally, and dragged her upstairs and sexually assaulted her again. The attacker left when she feigned sleep.
 
The woman walked to the nearby home of her sister, and the police and an ambulance were called. She told police that she did not get a good look at her attacker because it was too dark and the lights were out. But she said the attacker had slicked back, wavy hair, the same hairstyle worn by two of the men she had been drinking with earlier that night:  L.C. and Earl. 
 
She was taken to a hospital where a rape kit was prepared and she was treated for six broken bones in her face. She ultimately lost vision in one eye.
 
At the hospital, when asked who had attacked her, she said, “L.C., Earl, Darnell,” referencing three of the men whom she had been drinking with earlier in the evening.
 
A day and a half after the attack, while still hospitalized and on pain medication, the woman said she had a dream in which she relived the attack. She then called her sister and said her attacker was a man she knew as “Bubbles.” That man, 31-year-old Clarence Moses-EL, was arrested and charged with sexual assault, second-degree assault, and burglary.
 
He went to trial in Denver County District Court in April 1988. The victim testified that she first got a look at the perpetrator by moonlight or streetlight as he was dragging her up the stairs using his do-rag, which gave her “an idea” that it was Moses-EL. She said that she saw the perpetrator upstairs when he was sexually assaulting her and hitting her in the face and also after the attack when he got up from her bed and turned the light on briefly.
 
She told the jury she could see him through one eye that was “kind of open,” because her other eye was swollen shut from the beating.  She testified that while she was in the hospital she had a dream during which she had relived the attack, and that’s when she realized that Moses-EL, whom she knew from the neighborhood, was the attacker.
 
A crime lab analyst who performed blood type testing on the rape kit testified that she could not exclude Moses-EL—or for that matter, any other male—as the source of semen.
L.C. Jackson—whom the woman had initially named when asked who attacked her—testified for the defense that he had been drinking beer with the victim earlier in the evening at the home of L.C.’s girlfriend. Another witness testified that Moses-EL was at home at the time of the assault.
 
On April 7, 1988, Moses-EL was convicted of sexual assault, second-degree assault, and burglary. He was sentenced to 48 years in prison.
 
Moses-EL, who had always maintained his innocence, raised a claim of ineffective assistance of counsel against his public defender for failing to obtain DNA testing prior to trial. The Colorado courts denied that claim. 
 
Moses-EL raised about $1,000 from other inmates to fund DNA testing and got court orders for the biological evidence to be preserved and turned over. However, just a few weeks later, the Denver police department tossed the box containing the rape kit, bed sheets and other physical evidence into a dumpster, even though it was labeled “DO NOT DESTROY.” Any chance Moses-EL had to use DNA testing to exonerate himself was destroyed.

The Colorado courts denied Moses-EL’s subsequent claim that this destruction of evidence violated his constitutional rights.
 
In 2005, DNA testing in an unrelated case linked L.C. Jackson to the 1992 sexual assaults of a woman and her nine-year-old daughter who lived about a mile from where the 1987 assault for which Moses-EL was convicted had occurred. The Denver District Attorney’s Office prosecuted Jackson for those crimes and he was sentenced to prison.
 
The Denver District Attorney’s Office declined to re-investigate Moses-EL’s case even though the victim initially had repeatedly identified Jackson as her attacker, Jackson matched the physical description she initially gave, and Jackson had committed other rapes.
 
In 2012, Jackson wrote a letter to Moses-EL. “I don’t really know what to say to you,” he wrote, “but let’s start by bringing what was done in the dark into the light. I have a lot on my heart.” Jackson urged Moses-EL to have someone come to speak to him. “Its time (sic). I’ll be waiting,” he wrote.
 
During multiple subsequent interviews, Jackson told Moses-EL’s lawyers and investigators that on the night of the attack, he entered the victim’s home, had consensual sex with her, and repeatedly punched her in the face. Based on these admissions, Moses-EL filed a motion for new trial, and a judge ordered an evidentiary hearing. 
 
Before the hearing, lawyers at the Denver District Attorney’s Office interviewed Jackson in prison.  During the interview, he recanted his earlier admission, and wrote a brief note denying that he had raped the victim and claiming that he had been home with his girlfriend the entire night.
 
However, at the evidentiary hearing on Moses-EL’s motion for a new trial in 2015, Jackson testified that on the night the victim was attacked, he entered her house, engaged in sexual intercourse with her, and beat her. His girlfriend at that time testified that Jackson had left her presence during the time period when the victim was attacked.
 
The defense also presented evidence that serological testing of a Jackson’s saliva sample showed that his blood type was consistent with the blood type identified from analysis of the rape kit.
 
In December 2015, Denver County District Judge Kandace Gerdes vacated Moses-EL’s convictions and granted him a new trial. On December 22, 2015, Moses-EL was released on bond.
 
Before Moses-EL’s retrial, the Denver District Attorney’s Office successfully moved to preclude the defense from offering evidence about the multiple similarities between the crimes for which Moses-EL was being tried and Jackson’s crimes. The judge also granted the prosecution’s motion to bar the defense from presenting evidence that Moses-EL had spent 28 years in prison and had sought to exonerate himself with DNA testing, but that no such testing was ever done because the police destroyed the evidence.
 
Moses-EL went to trial for the second time in November 2016. The victim testified that she recognized Moses-EL when she opened one eye slightly after the attack when her attacker turned on a light.  She admitted on cross-examination, however, that she did not identify him until after her dream in the hospital a day and a half after the attack. The victim also asserted that she did not remember telling police or anyone else that she had been attacked by L.C., Earl, or Darnell.
 
The defense presented an expert on memory and eyewitness identification who testified many factors in the case greatly increased the risk that the victim’s identification of Moses-EL was false. The expert testified that of the more than 1,000 eyewitness identifications he had reviewed in his career, the identification of Moses-EL was among those with the highest risk for false identification. “As a scientist,” the expert testified, “I would never want to rely on this identification.” 
 
Forensic experts testified for the defense that the prosecution’s crime lab analyst was wrong to say that Moses-EL could not be excluded as the source of the semen, because Moses-EL was a strong secretor who had blood type B and no B antigens were detected. A defense expert also testified that the biological evidence was consistent with the perpetrator being a type O secretor. Jackson is a type O secretor.
 
Jackson was subpoenaed to testify at the retrial, but refused and asserted his Fifth Amendment privilege against self-incrimination. His previous testimony from the evidentiary hearing was read to the jury. Jackson’s then-girlfriend also testified that Jackson had left her home at the time of the attack.   
 
On November 14, 2016, the jury acquitted Moses-EL of all charges.
 
– Maurice Possley

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Posting Date: 12/3/2016
State:Colorado
County:Denver
Most Serious Crime:Sexual Assault
Additional Convictions:Assault, Burglary/Unlawful Entry
Reported Crime Date:1987
Convicted:1988
Exonerated:2016
Sentence:48 years
Race:Black
Sex:Male
Age at the date of crime:31
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence
Did DNA evidence contribute to the exoneration?:No