 Calvin Duncan (Photo: Lewis & Clark Law School)
Yeager’s girlfriend, 15-year-old Kristi Emberling, told police that two young Black men came up to her and Yeager while they were waiting for the bus. They asked the couple if they wanted to buy some marijuana. Yeager and Emberling said no. One of the men then pulled out a gun.
Yeager fought with that man. Emberling heard shots, and Yeager fell to the ground. She saw one of the men go through Yeager’s pockets and fish out his wallet. The robbers then ran away.
In her first statement to police, Emberling said both men were between 15-25 years old. One was about 5’ 10” tall and stocky, with a light complexion. The second she described as about 5’ 6” tall, with a thin build and a darker complexion. Several other witnesses saw the robbery but were unable to give the police detailed descriptions.
Detective Marco Demma of the New Orleans Police Department took a second statement from Emberling a week later, on August 13, 1981. She said that the taller, stockier man had the gun and shot Yeager.
She described the gunman to Demma. “He was black, he had a mustache like he didn’t shave in a week or two. He had like a knit winter cap, a leather or vinyl jacket, and a pair of blue jeans. He could have been 5’ 8” tall, stocky, 185 or 190 pounds.” In her initial description, Emberling had said this man wore a sun visor, not a knit hat.
The second man, Emberling said, was between 125 or 130 pounds, wearing a plaid long-sleeve shirt, with a short afro. “He was tall and skinny, about 5’ 9” tall, and was wearing blue jeans and tennis shoes.”
The investigation ran cold for several months. On February 15, 1982, the police department highlighted the case through its Crime Stoppers program. Three days later, a man called the Crime Stoppers hotline, said he was interested in the $1,000 award, and said that 18-year-old Calvin Duncan was the “perpetrator.”
Demma located a mugshot of Duncan from a juvenile arrest that was four years old. He prepared a photo array and showed it to Emberling on March 7, 1982. Demma would write in his report that after viewing the photos, Emberling selected Duncan and said “This is the one who shot David.”
He asked her if she was sure. According to the report, Emberling hesitated and said she wasn’t sure and that she was scared. Demma and his partner left the house, but returned about an hour later after Emberling called the officers and said she was positive in her identification. On March 8, 1982, an arrest warrant was issued for Duncan.
On July 23, 1982, Crime Stoppers received a second tip. According to a police memo, a female caller said that she had received a letter from Duncan, who was working for the Job Corps in Clackamas County, Oregon, and using the name Calvin Jones.
On August 6, 1982, Lt. Roy Reed and Detective Loren Peterson of the Clackamas County Sheriff’s Office arrested Duncan at the Job Corps center in the town of Estacada. During an initial interview, according to a report prepared by Reed, Duncan said he had no knowledge of the murder. Reed told him that a woman had witnessed the shooting. Duncan indicated he knew the witness was white. Reed would write that this was “noteworthy.” Duncan said he first heard about the crime in February 1982 after the Crime Stoppers report and that he had hitchhiked out west to join the Job Corps, learn a trade, stay out of trouble, and save some money to hire a good attorney if he was later arrested.
Ten days later, as he was awaiting extradition to Louisiana, Duncan gave a second statement to Reed and Peterson. According to Reed’s report, Duncan said the witness wouldn’t be able to identify him. Reed lied to Duncan and said that he had been identified in part based on his prominent gold front teeth. Duncan said everybody in New Orleans had gold teeth, and he had his for at least two years. According to Reed’s report, Duncan said he was afraid he would not get a fair trial in Louisiana.
Reed also returned to how Duncan knew the witness was a white woman. Reed wrote, “Duncan stated that it had to be a white woman or else they wouldn’t have kept working on the case so long.”
Demma and his partner, Detective Donald Curole, flew out to Oregon, on August 23, 1982, to escort Duncan back to New Orleans. They interviewed him at the Clackamas County Sheriff’s Office.
Duncan repeated much of what he told Reed and Peterson. He said he had left New Orleans in February 1982 after learning he was a suspect in the shooting. The detectives challenged him on his timing, noting that the arrest warrant wasn’t issued until March. Demma’s report on the interview also highlighted Duncan’s apparent knowledge of the murder. “Calvin Duncan again mentioned the fact about the victim being white and the witness being a female, without either of the detectives mentioning it,” Demma wrote.
Duncan was charged with first-degree murder.
On October 8, 1982, Duncan’s attorney filed a request for the Orleans Parish District Attorney’s Office to provide any exculpatory evidence in the case. A month later, Leon Cannizzaro, then an assistant district attorney, responded. “The state has no exculpatory evidence,” he wrote.
On August 15, 1983, Reed pled guilty in federal court to a single count of wiretapping and received five years on probation. According to a sentencing statement, Reed illegally installed a transmitter on the phone of a Clackamas County Commissioner whom some other officials believed was corrupt. Reed said that Peterson was present during early discussions on how to surveil the commissioner but did not know or take part in the installation of the eavesdropping device.
On February 2, 1984, an assistant prosecutor named Bruce Whittaker wrote his boss a memo about the problems with the Duncan case and recommended that prosecutors try to cut a deal and get Duncan to plead guilty to second-degree murder.
Whitaker noted the tentativeness of Emberling’s initial identification. “Although she states the tentativeness was due to her understandable fear, the fact remains that the identification was seriously damaged for trial,” Whittaker wrote.
“Reed’s inextricable involvement in all statements and his subsequent conviction would present serious problems in a jury trial,” Whittaker wrote. “In response to a defense discovery request, the State informed the defense that none of its witnesses had a conviction record. In light of our continuing duty, such answer is no longer sufficient.”
Duncan’s trial in Orleans Parish Criminal District Court began in January 1985. He was represented by an attorney appointed through the Orleans Indigent Defenders Program. Prior to the trial’s start, the attorney asked Judge Frank Shea to authorize funds to secure the testimony of an expert on mistaken witness identification. Judge Shea declined the request. “[If] you think every time I have a murder case I am going to have this expert come down because of the identification question, you are in the wrong court,” he said.
Emberling was the state’s main witness. She testified that Duncan was the gunman who shot and killed Yeager. Duncan was neither light-skinned nor stocky, as Emberling had told the police. Lacking the police reports, Duncan’s attorney was unable to question Emberling on these inconsistencies in her descriptions. In her testimony, Emberling said that Duncan appeared to have “lost a lot of weight” since the robbery. She also testified that she had not noticed the gunman having any gold teeth.
Demma testified that Emberling had never hesitated in her identification of Duncan.
He also testified that Duncan had knowledge of the race of the victim and the eyewitness, and that these were facts only a person involved with the crime would have known. Demma testified that he didn’t give the Oregon officers any information that identified the race of Emberling or Yeager. In addition, Demma testified falsely that the first caller to the Crime Stoppers hotline hadn’t expressed interest in a reward.
Reed, now a convicted felon, did not testify, and his role in the investigation was minimized. Demma testified that Peterson was his principal contact in Clackamas County. Peterson testified that he knew nothing about the race or gender of the victims when he and Reed first interviewed Duncan.
Duncan testified and denied any involvement. He testified that Emberling was mistaken, noting that she had not mentioned any gold teeth in her description. Duncan testified he had gotten his gold teeth around 1979. A cousin also testified in support of that account.
Duncan testified that he had left New Orleans in late January 1982 and lived with a relative in Los Angeles before moving to Oregon in April. Duncan denied telling the Oregon officers any particulars of the murder. He testified that he knew some details of the crime before his arrest because his aunt in New Orleans had telephoned and written to him, telling him about a television broadcast that said he was wanted as a suspect in the murder.
In addition, Duncan testified that on the night of August 7, 1981, he was painting his aunt’s house, because it was his cousin’s birthday the next day. The aunt and her children testified about these events, but the cousin did not testify about the actual date of his birthday, allowing prosecutors to cast doubt on this alibi. The aunt also testified and corroborated Duncan’s testimony about their communication when he was in California and Oregon.
During closing arguments, the state said Emberling had been strong and consistent in her identification of Duncan. The prosecutor also said that Duncan’s statements to investigators showed “guilty knowledge,” which was a “darn good indication” that he killed Yeager.
The jury convicted Duncan of first-degree murder on January 29, 1985, and he later received a sentence of life without parole, to be served at the Louisiana State Penitentiary in Angola.
Duncan quickly appealed. He argued, among other things, that Judge Shea had erred when he wouldn’t let Duncan’s attorney examine a supplemental report that Peterson had used to refresh his memory during testimony. Louisiana’s Fourth Circuit Court of Appeal affirmed the conviction on December 15, 1987.
During the next 17 years, Duncan filed a series of pro se motions for a new trial and petitions for writs of habeas corpus in state and federal courts. With funds he received in part from selling his plasma in prison, he hired an investigator, who took his money without performing the proper work.
In his appeals, Duncan said that he had been improperly questioned by the Oregon and New Orleans officers and that prosecutors had failed to disclose the police reports highlighting the discrepancies between Emberling’s initial descriptions and her trial testimony. He also said that he had received ineffective assistance of counsel, because his attorneys made mistakes during the trial and didn’t properly investigate his case.
The state and federal courts affirmed the convictions and denied his petitions and appeals. On January 18, 2002, the U.S. Court of Appeals for the Fifth Circuit upheld a lower-court ruling and said that prosecutors did not have to disclose the New Orleans police reports because they did not include any exculpatory evidence; whatever hesitation Emberling presented during her initial identification didn’t really contradict her testimony. It was due to fear, not uncertainty, the court said.
Innocence Project New Orleans (IPNO) began representing Duncan in 2004. The organization began reinvestigating the case and filed numerous public-records requests for documents from police and prosecutors. Building from earlier motions filed by Duncan, IPNO filed a new petition for a writ of habeas corpus in U.S. District Court for the Eastern District of Louisiana on October 8, 2008.
The petition reasserted that Emberling’s identification, based on her statements to police, was far less certain than her testimony suggested. The reinvestigation had also forced the release of the reports by the police in Clackamas County and New Orleans, including the communications between the two departments.
These documents showed that Louisiana officials had sent the Oregon detectives information stating the race and gender of Emberling and Yeager. This contradicted Peterson’s testimony that he was unaware of these facts. In addition, the records showed that Reed was the author of the reports detailing the Clackamas interviews with Duncan, and that Reed, not Peterson, was Demma’s point person in Oregon. This contradicted Demma’s testimony.
IPNO’s research had uncovered Reed’s conviction and his statement about Peterson’s involvement. “Reed’s felony conviction and dishonesty, as well as Peterson’s complicity, would have seriously undermined the state’s case had they been made known to the jury,” the petition said.
The habeas petition also said Duncan’s attorneys had provided ineffective representation, in part due to a lack of time and resources. Four attorneys at various times represented Duncan, and they didn’t always pass on relevant information. The two attorneys who tried the case made no effort until the trial to show Duncan had received gold teeth several years before the murder. IPNO investigators also found the cousin’s birth certificate, confirming that his birthday was August 8.
The habeas petition said Duncan’s attorneys had failed to interview Emberling prior to her testimony. The petition said this could have revealed that she initially described the gunman as light-skinned and stocky, in conflict with Duncan’s actual appearance. In addition, the attorneys didn’t try to investigate the two callers to the Crime Stoppers tip line or get this evidence excluded as hearsay. (The first caller simply referred to Duncan as the “perpetrator;” the second did not say he had committed a crime, just where he was.) The petition said that Duncan’s attorneys were hamstrung by the state’s lack of disclosure; they didn’t know what they didn’t know.
An investigator with IPNO interviewed Emberling in 2004. She said in a statement that she still felt like she picked the right person, but she also gave additional detail about how she became certain of her identification. “When I saw the picture that was Calvin Duncan, I told the detective that I needed to see him in person to be sure,” she said. “Then I saw him being arrested and brought back to New Orleans on the TV and when I saw him then I knew that was him.”
The petition said Emberling’s statement ran counter to the state’s closing trial argument and the 2002 ruling from the Fifth Circuit. “Ms. Emberling was uncertain for almost six months after seeing Mr. Duncan’s photo and only gained the certainty she showed at trial after viewing Mr. Duncan in the highly suggestive posture of being returned to New Orleans in police custody, identified on television as her late boyfriend’s murderer.”
Running parallel with the federal petition, Duncan’s attorneys had also filed a motion in state court challenging previous denials of his motions for post-conviction relief. This newest state motion was based largely on the state’s failure to disclose evidence related to misconduct by Reed and potential misconduct by Peterson. Judges in both district court and the Court of Appeals denied the motion as time-barred, but the Louisiana Supreme Court reversed those courts on January 22, 2010, ordering an evidentiary hearing.
The hearing didn’t happen. On January 7, 2011, Duncan struck a deal with the Orleans Parish District Attorney’s Office, now headed by Cannizzaro. His murder conviction was vacated, and he agreed to plead guilty to manslaughter and attempted armed robbery. Duncan received a new sentence of 49 years, but he was released on time served.
While in prison, Duncan had worked as a clerk in the prison law library, making 20 cents an hour, and helping fellow inmates with their appeals. One inmate would later write that Duncan “had the most brilliant legal mind in Angola.” Following his release, Duncan played a critical role in helping attorneys gather evidence and frame arguments for a challenge to Louisiana’s use of non-unanimous juries. The U.S. Supreme Court barred these verdicts in 2020, although it later clarified that the ruling didn’t apply retroactively. Oregon and Louisiana had been the only two states that allowed these verdicts.
Separately, Duncan enrolled in and graduated from Tulane University in New Orleans in 2018. He then attended Lewis & Clark Law School in Portland, Oregon.
In 2021, after Cannizzaro did not run for reelection, Jason Williams became the new district attorney for Orleans Parish. That year, the Louisiana State Legislature enacted a law allowing persons who had pled guilty to challenge their convictions if they had evidence of innocence that was never presented in court.
The law took effect on August 1, 2021, and Duncan’s attorneys filed a motion to vacate his conviction on July 26, 2021. The motion said that Duncan never had a chance for a court to hear his evidence of innocence, and that he took the plea deal because it was the surest path to release from prison. It also said that the convictions for manslaughter and attempted armed robbery, if allowed to stand, would likely prevent his admission to the bar after his graduation from law school.
On August 3, 2021, Judge Nandi Campbell of Orleans Parish Criminal District Court vacated Duncan’s conviction. She wrote: “Given the State’s prior suppression of evidence relating to the Oregon officers’ possible criminal activity, the inconsistencies of the minor’s eyewitness identification, Mr. Duncan’s alibi bolstered by the Defense’s post-trial discovery of Mr. Duncan's cousin’s birth certificate, and Mr. Duncan’s extensive service and numerous contributions to the community post-release, the sentence imposed on January 7, 2011 is unconstitutionally excessive.”
After Judge Campbell’s ruling, the state dismissed the charges against Duncan.
– Ken Otterbourg
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