 (Photo: Delaware News Journal)
Giles was with her husband, Earnest Giles, and they had just returned from shopping at Walmart. Earnest Giles told police that the assailants were two young Black men.
Angela Rayne said she saw the crime and heard a single shot. Rayne had extensive drug-abuse problems, but she told police that she recognized one of the assailants as 17-year-old Ronald Harris, whom she had seen with police earlier that day. No bullet was recovered, but police turned up a 9 mm shell casing at least 40 feet away from where Giles was shot.
Rayne identified Harris in a photo lineup on February 16, 2006. She did not make an identification of the second person.
Police interviewed Earnest Giles, treating him as both a victim and a potential suspect in what might have been a staged robbery that went sideways. One of Tamika’s co-workers told police that Tamika had confided in her about her husband’s abusive behavior and substance-abuse problems. Her family said Earnest Giles wasn’t grieving over his wife’s death, and that Tamika had cashed a sizable tax refund on the day of her death.
Police interviewed Earnest Giles on February 2, 2006. He told police that one of the men who killed his wife might have been the same person who tried to rob him on an earlier occasion when he was buying drugs. Giles looked at photos but made no identification.
On February 16, Giles looked at more photos, including an array that contained Harris’s photo. Giles did not identify Harris, but told police that a young man named Kellee Mitchell might have been the shooter.
Based on this information, police executed search warrants and arrest warrants for Harris and Mitchell on February 18, 2006.
Both lived at the Compton Towers apartments, a few blocks from the shooting. Police found Mitchell at his girlfriend’s apartment, along with Dawan Harris, who was Ronald Harris’s older brother and closely resembled him. As police searched the area, they recovered a .38-caliber Smith & Wesson revolver in the ceiling outside the apartment. Police arrested Dawan Harris and Mitchell. They later arrested Ronald Harris at the apartment of a woman named Latoya Moody. At the time, 16-year-old Mark Purnell was also in Moody’s apartment, but he was not arrested.
Ronald Harris was interrogated for 11 hours. He was intellectually disabled and unable to read or write. A detective told Harris that a witness to the shooting had identified him, but that the other person probably committed the murder.
The detective left the room, and Harris broke down in tears. He said: “Not me commit no crime. Not me commit no crime. No. Uh-uh. Uh-uh. Now I was with someone that commit a crime? Somebody tell me. Somebody please tell me what’s going on.”
When the questioning resumed, Harris told the detective that he had seen his brother with a revolver. Later, an officer referred to Purnell and asked Harris, “Where does Mark keep the gun?” Harris said he had never seen Purnell with a gun, did not know his real name and had only met him once before.
Harris kept saying he wasn’t in the area of Fifth and Willing when the shots went off. He said he heard three shots. Later, he said he saw a man with a beard running from the crime scene. Police charged Harris on February 18, 2006, with attempted robbery, conspiracy and possession of a deadly weapon during the commission of a felony.
Police questioned Dawan Harris separately. They lied to him and said that witnesses had identified him. Dawan Harris initially denied owning a gun, then admitted that he and Mitchell jointly owned the weapon found in the ceiling at Compton Towers. Less than 20 minutes into the interview, Harris asked for an attorney, and the interview ended. He and Mitchell were charged with unlawful possession of a deadly weapon. Dawan Harris’s bail paperwork said he was a possible suspect in a murder.
Based in part on Ronald Harris’s statement, the Wilmington police pursued Purnell as a suspect. They searched his house and his grandmother’s house but found no relevant evidence. They presented his photo to Earnest Giles as part of an array on February 22, 2006, but Giles made no identification.
The day before Giles viewed the photos, Purnell came to the police station for an interview with Detective Thomas Curley. He said that he and the Harris brothers were related through his mother, and that he had known Mitchell most of his life. He said he was aware that the three had been arrested for murder. He told the detective that he thought that Mitchell and Dawan Harris were trying to set him up to take the fall for the Giles shooting. Mitchell, he said, had called him repeatedly, asking Purnell to come take a look at the revolver hidden in the ceiling.
A month later, Purnell had a phone conversation with a friend and with Dawan Harris’s girlfriend. The girlfriend would later testify that Purnell told her, “That’s why I did kill that lady and your boyfriend is sitting in jail for it. . . sike [sic].” As a court ruling would later note, “sike” meant that Purnell was joking.
The police continued to investigate. An unidentified witness, known as Witness 1, told officers in June 2006 that Dawan Harris had bragged about his involvement in the killing.
On January 4, 2007, Wilmington police arrested Corey Hammond for drug possession with intent to distribute. Police had interviewed him in 2006, without much success, about the Giles murder, but now he was more cooperative. His son was about to be born, and the bond for the drug arrest was set low enough to allow Hammond to be present for the birth.
Hammond told police that Ronald Harris and Purnell had committed the Giles robbery. Both were armed, Hammond said, but Harris was the shooter. Hammond said he had been with Dawan Harris about a block from the attempted robbery when they heard the shots. He also said Purnell had bragged about the crime a week or so later.
Hammond created a map for the police describing where he was during the attempted robbery, and he initially continued to repeat that he heard multiple shots. Detective Gary Tabor kept reminding him that there was only a single shot until Hammond agreed that he only heard a single shot.
Tabor interviewed Mitchell on January 22, 2007. Mitchell said that Purnell had confessed his involvement to the shooting in April 2006, when he and Purnell were both in the New Castle County jail on unrelated charges. Mitchell said that Purnell bragged about the robbery and said that he had to shoot Giles because she recognized him.
Police arrested Purnell on January 23, 2007, and charged him with first-degree murder, attempted first-degree robbery, and two counts of illegal weapon possession. A conspiracy charge and another weapons charge were later added.
Police interviewed Ronald Harris the next day and falsely told him that he had been implicated by Purnell. One detective mocked Harris for his limited intelligence, saying, “Mark, he’s not quite as dumb as you are.” The detectives told Harris he would be in prison for the rest of his life unless he cooperated. Throughout the interview, Harris consistently denied any involvement or knowledge of the shooting. He was charged with the same crimes as Purnell.
After Purnell was indicted on April 30, 2007, Judge Jane Brady of New Castle County Superior Court appointed Peter Veith to represent him. Veith had represented Dawan Harris on the weapons charge from the revolver found at Compton Towers during the execution of a search warrant tied to the Giles murder. That case had been resolved with a guilty plea in 2006.
Veith first brought the potential for a conflict of interest to Judge Brady’s attention in January 2008, and said it would be a problem if the state called Dawan Harris as a witness. The state said it had no such plans.
Purnell and Harris were to be tried together, beginning on April 2, 2008, and their attorneys jointly selected the jurors. But before the trial started, Ronald Harris struck a deal with the state, agreeing to testify against Purnell and plead guilty to attempted first-degree robbery and a conspiracy charge. The state dropped the other charges, and agreed to a sentence of three years in prison, including the 15 months Harris had been incarcerated awaiting trial. As part of the plea, Harris gave a proffer interview to detectives.
Dawan Harris’s name had been mentioned during the voir dire, leading Veith to believe the state still might call him as a witness. He again brought his concerns about a conflict to Judge Brady. Veith said one possible defense theory was that Kellee Mitchell and Dawan Harris had committed the robbery and shot Giles with the revolver, and that Rayne had mistakenly identified Ronald for Dawan, because of their similar appearance. Ronald Harris, Veith surmised, might be covering for his brother by blaming Purnell for the shooting.
Prosecutors pushed back, arguing that the shell casing found near Giles’s body eliminated the revolver as the murder weapon. (Revolvers retain their casings after the weapon is fired.) Despite Hammond’s statement to police that he had been with Dawan Harris at the time of the shooting, making Harris a potentially corroborating witness, prosecutors told the court that they had no reason to believe Dawan Harris had any knowledge of the crime.
Judge Brady told Veith to figure out whether he would be calling Dawan Harris as a witness, and they would deal with the conflict issue if and when it arose.
There was no physical or forensic evidence tying Purnell to the shooting.
Earnest Giles had loosely identified Mitchell, creating an opportunity for Veith to undermine the state’s case. But Giles had died in January 2008, and the state successfully argued that his statements to police shouldn’t be admitted. They argued the statements were hearsay and also unreliable because he had been a potential suspect.
In its opening statement, the state dismissed the relevance of the revolver and said the key piece of evidence was the 9 mm shell casing found on Willing Street, “just a few feet from where [Giles] fell after being shot.”
Rayne testified and said she saw the attempted robbery and shooting, which took place at close range. She said she did not hear any of the exchange between the victims and the assailants. She said the assailants ran away “very fast” and at “full speed” after the shooting. Rayne also testified that she was high on crack cocaine when she saw the shooting and that she was no longer 100 percent certain that Ronald Harris was one of the assailants.
Rayne had not identified Purnell, but she became confused in court and testified that Purnell was one of the men she saw. The prosecutor tried to clean up her mistake, referring her back to the photo identification, but the damage had been done.
Ronald Harris’s testimony was confusing and often at conflict with his proffer interview. He testified that he and Purnell had agreed on the morning of January 30, 2006, to rob somebody. He testified that they met later that day to commit the crime but had no discussion of what was about to happen. Harris testified that he ran after Purnell had pulled out a gun, and that he heard a shot five seconds later. He testified that he didn’t see Purnell again until the day of his arrest on February 18, 2006, and that they had not spoken about the event after it occurred.
In his proffer interview, Harris said the robbery plan was agreed to shortly before it happened, not in the morning. He said, as he did at trial, that he ran after Purnell pulled out a gun, but that he didn’t hear about any shots being fired until someone called him a day or two later. During cross-examination, Veith did not challenge Harris on these and other discrepancies between the trial testimony and his proffer interview.
Hammond testified as part of a plea agreement entered in July 2007. He said that he heard Purnell come up with the idea of a robbery about an hour before the shooting, complaining to a group of acquaintances, including Ronald Harris, that “he was tired of being broke.” He testified that Harris asked Purnell what he wanted to do, and Purnell showed off a semi-automatic pistol hidden in his waistband. Hammond said he then left with some other people. As in his earlier interviews with police, Hammond said he was a block or so away from Fifth and Willing when the shooting occurred, but now he was clear that he only heard one shot. He also denied – contrary to an earlier statement – that Dawan Harris was with him. Hammond also testified that Purnell had bragged to him about the shooting a week or so later.
In one of his earlier interviews, Hammond had told police that “Little Ron pulled the trigger.” Veith did not challenge him on this statement, nor did he delve deeply into Hammond’s testimony that now removed Dawan Harris from being near the shooting.
Mitchell testified and denied any recollection of previous statements implicating Purnell. The state then played a recording of those interviews, and Mitchell testified that he cooperated with police because of some outstanding warrants.
The state also introduced the testimony of a handwriting expert, who testified that it was her opinion that Purnell wrote some graffiti at the county jail that appeared to threaten Mitchell for being a snitch.
Tabor testified that the shell casing was found 40 feet north of Tamika Giles’s body. An evidence technician testified that he measured the distance at more than 60 feet. Tabor also testified that Giles had cashed a $1,748 tax refund check the day of her death.
Purnell did not testify, and his defense was built around his inability to have committed the crime in the manner described by Harris and Rayne.
Purnell had been shot in the lower thigh of his right leg on January 21, 2006, and the bullet was lodged next to his knee. He underwent surgery on January 22 to remove the bullet, which turned out to be a complicated procedure. The first attempt failed, and a second surgeon, Dr. James Rubano, placed a tiny camera in Purnell’s knee through an incision to find the bullet and then used another incision to remove the bullet. The wound was closed with sutures in the front and 10 surgical staples in the back.
Purnell’s cousin testified that Purnell was still hobbling around, mostly with crutches, into mid-February. Purnell’s grandmother testified that Purnell was with her and friends on the night of the shooting, and that he needed assistance to get in and out of a recliner. A counselor at a juvenile detention facility testified that Purnell was using crutches when he was at the facility between February 1 and February 3.
The state called Rubano as a rebuttal witness. He testified that he had done thousands of knee surgeries but only one or two that were similar to Purnell’s. He said he was unable to give an opinion on whether Purnell would have been able to run by January 30, 2006.
During his closing argument, Veith said the state’s witnesses, particularly Harris, were motivated to give false testimony, and that Purnell was physically unable to have run from a crime.
The state discounted the deals struck by its witnesses and said their testimony, although at times frayed, lined up where it mattered. It noted Hammond’s testimony about seeing Purnell with a semi-automatic pistol, which was consistent with the shell casing “found at the scene.”
The jury began deliberations on April 24, 2008, a Thursday. That afternoon, the jury sent Judge Brady a note stating that members wanted to see audio, video or transcripts of police interviews with Hammond, Mitchell and Ronald Harris. Veith objected, but Judge Brady allowed the viewing.
On April 25, the jury sent another note to Judge Brady; a juror said he was concerned that the deliberations would impact his vacation plans, and that he intended to leave for vacation on April 26. He said he had told other jurors of his plans prior, and “they have very much had that in mind during the deliberations.” For a variety of reasons, there were no available alternates.
Veith asked for a mistrial, which Judge Brady denied. She told the jury to keep deliberating. She said the court would try to make accommodations for the juror, who said he was returning in a week. Another juror then said resuming deliberations at that later date conflicted with their schedule.
The jury convicted Purnell later that day of second-degree murder, attempted first-degree robbery, conspiracy, and the three weapons charges, He was sentenced to 43 years in prison.
Veith appealed Purnell’s conviction, arguing Judge Brady made two errors. First, he said the judge should have declared a mistrial after the juror’s comments about having to go on vacation. Second, he said Judge Brady should have admitted Giles’s statement under an exception to the hearsay rules of evidence. It noted that the state had used Giles’s identification of Mitchell – and not Purnell – as the basis for a search warrant, which vouched for the credibility of his statements.
The Delaware Supreme Court affirmed the conviction on August 25, 2009.
On March 25, 2010, Purnell filed a 133-page pro se motion for relief. The heart of the motion was a claim that Veith had been ineffective and that he should have withdrawn as counsel once he became aware of the conflict. Purnell said that he objected when he learned that Veith had represented a potential state’s witness. He also said that Veith never told him the name of that witness.
Separately, Purnell said that the state had failed to turn over a wide range of discovery evidence, including correspondence it had seized while Purnell was in jail awaiting trial.
After Purnell filed his motion, an attorney was appointed to help him on his appeal. The attorney amended the motion, removing the conflict claim and focusing on three narrow issues: that Veith should have asked for a jury instruction that accomplice testimony needs to be carefully weighed and for another jury instruction that a guilty plea by Harris was not indicative of Purnell’s guilt; and that the prosecutor had improperly vouched for Harris’s credibility when he told the jury that Harris was “telling the truth” after he entered his guilty plea.
It’s not apparent why the attorney removed the conflict claim. He died before oral arguments. The Delaware Supreme again affirmed the conviction on November 21, 2014.
Harris filed a petition in 2014 for a writ of habeas corpus in U.S. District Court in the District of Delaware. This petition repeated the claims in Purnell’s pro se motion but also asserted that Veith had been ineffective for failing to present stronger evidence of the extent of Purnell’s injury and the limitations it would have caused at the time of the shooting. The motion said that Veith should have presented expert testimony to challenge Rubano’s testimony that he had no opinion about whether Purnell would have been able to run seven days after getting a bullet removed from his knee.
That petition was stayed in 2017, and Purnell filed a motion for a new trial based on a claim of actual innocence on May 14, 2018. He was now represented by Herbert Mondros of Wilmington, and later assisted by Innocence Delaware and by pro bono attorneys with the New York law firm of Milbank.
The motion re-asserted previous claims of Veith’s conflict of interest and his failure to fully investigate Dawan Harris as a viable suspect, but it also introduced new evidence of innocence. Ronald Harris’s mother said in a 2017 affidavit that her son recanted his testimony immediately after the trial. Mitchell recanted to a fellow inmate in 2012, and later, formally, in 2017. The motion also contained affidavits from Hammond’s mother and brother that said he did not see what he testified that he saw.
In addition, the motion included a report by Dr. Francis McGuigan, an orthopedic surgeon with extensive experience treating gunshot wounds to the leg. He reviewed the records and testimony and concluded “with reasonable medical probability that Mr. Purnell would have likely been unable to run unimpeded on January 30, 2006.”
The bullet that killed Giles was never recovered. The state’s firearms evidence was the lone shell casing. The motion included a report from an expert crime-scene investigator that said the casing was too far from Giles’s body to have been ejected from the murder weapon. A study he cited examined thousands of test rounds and reported that most came to rest no more than seven feet from the weapon. The longest distance was 21 feet.
Judge Sheldon Rennie of New Castle County Superior Court denied Purnell’s motion on February 19, 2020. He said that many of Purnell’s claims were procedurally barred and that what remained were the claims of actual innocence. Rennie rejected all of them. He said the recantations were not credible, and the forensic evidence included in the motion wasn’t really new; it could have been obtained at trial.
Purnell appealed. On June 17, 2021, the Delaware Supreme Court vacated Purnell’s conviction and granted him a new trial. It was the first time the court had granted a new trial based on actual innocence. “Although findings of actual innocence are reserved for the ‘rare’ or ‘extraordinary’ case,” the court said, “we believe this is such a case.”
In reversing Rennie’s ruling, the appellate court said: “The trial court appointed Purnell’s counsel and refused that counsel’s efforts to withdraw after he brought a clear and actual conflict of interest to the court’s attention. The conflict, coupled with the trial court’s refusal to let Trial Counsel withdraw, barred Purnell’s access to the evidence he now seeks to present with new conflict-free counsel.”
Purnell was never told of his attorney’s conflict, the court said, so he never waived the issue, which permeated the entire case and prevented Veith from investigating Dawan Harris as an alternate suspect or developing forensic evidence that discredited the shell casing and supported a theory that the revolver was the murder weapon.
The ruling said that Judge Brady and Veith erred in thinking that Veith’s conflict only existed if Dawan Harris testified. By the time Veith recognized a conflict, he had been representing Purnell for eight months. The court also said the state’s position that there was no conflict because Dawan Harris had no “knowledge of the crime,” was “unsustainable” because Hammond had initially placed Harris near the shooting.
The court said Veith’s conflict prevented him from vigorously cross-examining Hammond about this inconsistency.
The forensic evidence supporting Purnell’s infirmity and discounting the shell casing, along with the holes and shifts in the testimony of the state’s incentivized witnesses, also bolstered Purnell’s claims that he was innocent.
“We observe that legitimate claims of actual innocence are exceedingly rare,” the court said. “Because they are so rare, the actual innocence exception, in our view, poses no threat to our State’s interest in finality. We believe the result in this case strikes the appropriate balance between our justice system’s interests in ‘finality, comity and conservation of judicial resources, and the overriding individual interest in doing justice in the ‘extraordinary case.’”
Despite the Supreme Court’s ruling, Purnell remained in prison. His attorneys filed a motion to reduce his $1,005,000 bail, set in 2007. The state opposed the reduction, and a court denied the motion on September 15, 2021, Purnell was unable to visit his mother before she died or attend her funeral.
The state suggested there would be a retrial, and Purnell’s attorneys began filing additional motions for discovery.
One of the documents they received was a 2007 recording of a person known as Witness-1 who implicated Dawan Harris. On the recording, an officer asked the witness if Harris said he shot Giles or only that he was there. The witness said: “He said, ‘Yo, you should have seen how I shot her. You should have seen how she fell. You should have seen her. Boom. She hit the ground.’ That’s what he was saying, he just kept saying that s--t over and over … Yo he did it man. I’d testify to it.”
In the transcript of that interview provided to Veith prior to the 2008 trial, the quotation only said that Dawan Harris stated, “You should have seen how they fell.”
Separately, in early 2022, the state disclosed that the shell casing found on Willing Street was consistent with a shell casing fired from a gun in an unrelated 2004 murder. The state acknowledged that the casing “simply cannot be connected to [Purnell’s] case.”
In a motion to dismiss, Purnell’s attorneys said that if the state had turned over the recording of Witness-1 at trial, Veith’s conflict would have been crystal clear and impossible to ignore. It also noted that much of the evidence in the case was no longer available. Either it had been lost, or was unusable because of technology issues.
The state filed a motion to dismiss the case on April 28, 2022. New Castle County prosecutor Annemarie Puit wrote that “After careful consideration of all the evidence in the case, the state has determined it can no longer ethically proceed.”
Purnell was released from prison that day. He told the Delaware News Journal that he was looking forward to being with his family. “I want to be successful and be a positive energy in this world,” he said. “I've got to prove right everyone that believed in me.”
– Ken Otterbourg
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