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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. ___________________
CLARENCE MOSES-EL,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
MITCHELL R. MORRISSEY, Former Denver District Attorney, in his individual
capacity;
BONNIE BENEDETTI, Chief Deputy District Attorney for the Denver District
Attorney’s Office, in her individual capacity;
ROBIN WHITLEY, Former Deputy District Attorney for the Denver District Attorney’s
Office, in his individual capacity;
LYNN KIMBROUGH, Former Communications Director for the Denver District
Attorney’s Office, in her individual capacity;
JEFF CARROLL, Investigator for the Denver District Attorney’s Office Investigator, in
his individual capacity;
DR. KATHREN BROWN-DRESSEL, Former Colorado Bureau of Investigation and
Denver Police Department Forensic Serologist, in her individual capacity;
ESTATE OF JAMES HUFF, Denver Police Department Detective, in his individual
capacity; and
ANN PERRY, Former Denver Police Department Forensic Serologist, in her individual
capacity,
Defendants.
________________________________________________________________________
CIVIL RIGHTS COMPLAINT AND JURY DEMAND
________________________________________________________________________
Plaintiff Clarence Moses-EL, through his attorneys, Gail K. Johnson, Eric K.
Klein, Amy Kapoor, and Aurora L. Randolph of Johnson & Klein, PLLC, hereby submits
this Complaint alleging violations of his Fourteenth Amendment rights.

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I.
1.

INTRODUCTION

On August 18, 1987, Clarence Moses-EL, age 32, walked out of his front

door for what would be the last time for almost three decades. He started riding his bike
through Denver with his 3-year-old son Anthony Burke on his handlebars, not knowing
that he would be unable to share another ride with his young child ever again because he
was about to be arrested for a brutal sexual assault he did not commit.
2.

Mr. Moses-EL was wrongfully convicted and imprisoned for more than 28

years in the Colorado Department of Corrections (DOC). He always maintained his
innocence. But shoddy investigation, the willful destruction of exculpatory biological
evidence, and prosecutors blinded by the desire to obtain and maintain convictions
regardless of the truth left Mr. Moses-EL in the cross-hairs of a powerful criminal-justice
system that would fail him time and time again.
3.

The crimes for which Mr. Moses-EL was wrongfully convicted involved a

brutal sexual assault and physical beating of a woman in her own home in the middle of
the night. There is not now and never has been any physical evidence that Mr. Moses-EL
committed these crimes.
4.

The sole reason Mr. Moses-EL was ultimately arrested and prosecuted for

these crimes was the victim’s dream-induced identification of him while she was on
medication at the hospital. But there were many other reasons why that identification
was unreliable.

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5.

When police first interviewed the victim at her sister’s house near the scene

of the crime, she said she had not gotten a good look at her attacker because it had been
too dark.
6.

She then gave a limited physical description of the attacker’s hairstyle,

explaining that it was the same hairstyle as that of two men she had been drinking with
that night, one of whom was a man named L.C. Jackson. (The hairstyle she described did
not match Mr. Moses-EL’s hair.)
7.

Mr. Moses-EL lived in the victim’s neighborhood and was known to the

victim by his then-nickname, “Bubbles.” At no point at the scene or at the hospital
before her dream did the victim say that her attacker was “Bubbles.”
8.

To the contrary, at the hospital, when pressed by her sister and then the

police to identify who had attacked her, the victim repeatedly identified three men she
had been drinking with that night—L.C., Earl, and Darnell.
9.

It was only while she was under medication in the hospital, following a

dream in which she believed that she had re-lived the attack, that the victim awoke and
first accused Mr. Moses-EL (by his nickname).
10.

Adding to the unreliability of this already highly questionable identification

was the fact that the victim had been publicly feuding with Mr. Moses-EL’s girlfriend.
The Denver Police Department and the Denver District Attorney’s Office (Denver DA’s
Office) were well aware of this bad blood. Defendant Detective James Huff, a Denver

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Police Department Detective who investigated the case, later revealed that due to the
conflict between the victim and Mr. Moses-EL’s girlfriend, he had always had doubts
about whether Mr. Moses-EL truly was the perpetrator.
11.

The man who did commit the crimes against the victim was L.C. Jackson.

Mr. Jackson was one of the three men the victim had identified, and he was one of two
men she said matched the physical description of the perpetrator. He also had a history
of committing sexual assaults. Despite all this, the Denver Police Department and the
Denver DA’s Office failed to investigate Mr. Jackson as a suspect, instead doggedly
pursuing Mr. Moses-EL based on nothing more than an identification that was patently
unbelievable.
12.

Despite a lack of probable cause, Mr. Moses-EL was charged with first-

degree sexual assault with serious bodily injury in violation of Colorado Revised Statutes
§ 18-3-402(3)(b); second-degree burglary of a dwelling in violation of Colorado Revised
Statutes § 18-4-203(1), (2)(a); and second-degree assault in violation of Colorado
Revised Statutes § 18-3-203.
13.

Beginning immediately after his arrest, Mr. Moses-EL sought to exonerate

himself through the collection and testing of physical evidence. While pending trial at
the jail, Mr. Moses-EL asked his attorney, a deputy public defender, to have DNA testing
conducted on the biological evidence that had been collected from the victim and her
home immediately following the rape. But the public defender refused to pursue any

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DNA testing, because his supervisors in the public defender’s office believed that the
admission of DNA evidence—a powerful tool for prosecutors—should be opposed in
every case. And at trial, the forensic serologist presented by the Denver DA’s Office’s
misled the jury by opining in a misleading manner that there was no way Mr. Moses-EL
could be excluded as the perpetrator based on the physical evidence.
14.

Because the Denver Police Department and the Denver DA’s Office

focused their investigation on Mr. Moses-EL and failed to investigate L.C. Jackson as a
suspect in the August 1987 sexual assault against the victim, Mr. Jackson was left at
liberty to victimize other members of the Denver community. And he did just that. In
November 1987, Mr. Jackson burglarized the home of his aunt in Denver. Around 1992,
Mr. Jackson choked his then-girlfriend so hard the blood vessels in her eyeballs burst. In
1992, just about a mile away from the Denver location where he had sexually assaulted
and beat the victim in Mr. Moses-EL’s case in her own home in the early morning hours,
Mr. Jackson raped a middle-aged woman and her nine-year old daughter in their
respective bedrooms in the upstairs of their home at around 2:30 a.m. And around 1997,
Mr. Jackson sexually assaulted another young girl in Denver, the daughter of a girlfriend
of his at the time.
15.

Meanwhile, Mr. Moses-EL—largely on his own—spent more than five

years fighting in the courts to obtain the ability to conduct DNA testing to exonerate
himself. In November 1995, he finally won, obtaining a court order requiring the Denver

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Police Department to preserve the biological evidence in the case for defense DNA
testing. Mr. Moses-EL had raised the money for the DNA test from other inmates in the
DOC.
16.

But in December 1995, before the DNA test that would have exonerated

Mr. Moses-EL was conducted, the Denver Police Department destroyed all of the
biological evidence from the case. This was part of a pattern of their mishandling gravely
important evidence. All hope for Mr. Moses-EL’s exoneration—and for the conclusive
identification of the true perpetrator—was lost. And Mr. Moses-EL continued to be
locked up in a prison cell for crimes he did not commit.
17.

In 2006, the Denver DA’s Office successfully prosecuted L.C. Jackson for

the sexual assaults of the mother and daughter that he had committed in Denver in 1992.
Ironically, the Denver DA Office’s prosecution of Mr. Jackson for these 1992 rapes was
based on a cold-hit DNA match.
18.

Although the Denver DA’s Office knew that Mr. Jackson—one of the men

identified by the victim in Mr. Moses-EL’s case—was a violent rapist, they did not reopen the investigation into Mr. Moses-EL’s case and did not investigate whether Mr.
Jackson was the true perpetrator of the crimes for which Mr. Moses-EL had now spent
more than 18 years behind bars.

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19.

In 2008, Mr. Moses-EL was given a glimmer of hope when state legislators

took notice of the injustice of his case and began a legislative effort to provide him, and
others who had material evidence in their case destroyed, a new trial.
20.

Mr. Moses-EL’s moment of hope that the truth in his case would yet be

revealed was short-lived. Defendants Morrissey and Whitley used their political power
to orchestrate a misinformation campaign at the legislature targeted at denying Mr.
Moses-EL a new trial. These lies had their intended effect, causing state legislators to
pass only a watered-down version of the bill that did not apply to Mr. Moses-EL’s case.
21.

In April 2012, after Mr. Moses-EL had served 25 years of his sentence, he

received a letter from Mr. Jackson suggesting that he was ready to reveal information that
would be useful to Mr. Moses-EL’s defense team. Over the course of several years, Mr.
Jackson repeatedly made multiple admissions that implicated himself in the crimes for
which Mr. Moses-EL had been wrongfully convicted.
22.

In December 2015, based on this and other newly-discovered evidence, the

Denver District Court vacated Mr. Moses-EL’s convictions and granted him a new trial.
23.

The Denver Police Department and the Denver DA’s Office were then

forced to confront the fact that as a result of their woefully inadequate investigation, their
malicious prosecution of Mr. Moses-EL, and their continued efforts to keep Mr.
Moses-EL in prison, an innocent man was wrongfully imprisoned for more than 28 years
while a serial rapist had remained free to victimize Denver women and children.

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24.

Defendants used every tactic—both legal and illegal—to try and cover up

the decades of injustice perpetrated against Mr. Moses-EL. Defendants Benedetti and
Carroll intimidated Mr. Jackson into falsely recanting his admissions of culpability and
manufactured evidence to create probable cause against Mr. Moses-EL for a second trial
for the same crimes. Defendant Morrissey, having ultimately failed to stop Mr.
Moses-EL from receiving a new trial, and facing public pressure to drop the charges,
directed Defendant Kimbrough (the Denver DA’s Office’s Communications Director) to
spread false information to the media and the public about the facts of the case.
25.

In 2016, still clinging to the flawed dream-induced identification made by

the victim in the hospital, and notwithstanding the fact that a man she had previously
identified as her assailant had admitted to a violent sexual encounter with her at her home
at the time of the attack, the Denver DA’s Office brought Mr. Moses-EL to a second trial
for the 1987 attack. On November 14, 2016, a Denver jury found Mr. Moses-EL not
guilty of all charges.
II.
26.

JURISDICTION AND VENUE

This action arises under the Constitution and laws of the United States and

is brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant
to 28 U.S.C. § 1331. Jurisdiction supporting Mr. Moses-EL’s claims for attorney’s fees
and costs is conferred by 42 U.S.C. § 1988.

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27.

Venue in the District of Colorado is proper under 28 U.S.C § 1391(b)

because all of the events relevant to the claims contained herein occurred in the State of
Colorado.
III.
28.

PARTIES

Plaintiff Clarence Moses-EL is a resident of Denver, Colorado. At all times

relevant to this Complaint, he resided or was incarcerated in Colorado.
29.

Defendant City and County of Denver was at all times relevant herein a

municipal entity created and authorized under the laws of Colorado. Defendant City and
County of Denver was, at all times relevant herein, authorized by law to maintain and did
maintain a police department known as the Denver Police Department. Defendant City
and County of Denver is responsible for the supervision, training, official policies,
customs, and actual practices of its agents and the Denver Police Department.
30.

Defendant Morrissey is a former Denver District Attorney in Denver,

Colorado. He acted under color of law and in the scope of his employment when
engaging in the actions and omissions alleged in this Complaint. He is sued in his
individual capacity.
31.

Defendant Bonnie Benedetti is a Chief Deputy District Attorney for the

Denver DA’s Office in Denver, Colorado. She acted under color of law and in the scope
of her employment when engaging in the actions and omissions alleged in this
Complaint. She is sued in her individual capacity

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32.

Defendant Robin Whitley is a former Deputy District Attorney for the

Denver DA’s Office in Denver, Colorado. He acted under color of law and in the scope
of his employment when engaging in the actions and omissions alleged in this Complaint.
He is sued in his individual capacity.
33.

Defendant Lynn Kimbrough is a former Communications Director for the

Denver DA’s Office in Denver, Colorado. She acted under color of law and in the scope
of her employment when engaging in the actions and omissions alleged in this
Complaint. She is sued in her individual capacity.
34.

Defendant Jeff Carroll is an investigator for the Denver DA’s Office and a

former Denver Police Department Detective in Denver, Colorado. He acted under color
of law and in the scope of his employment when engaging in the actions and omissions
alleged in this Complaint. He is sued in his individual capacity.
35.

Defendant Kathren Brown-Dressel is a former Colorado Bureau of

Investigation and Denver Police Department Forensic Serologist. She acted under color
of law and in the scope of her employment when engaging in the actions and omissions
alleged in this Complaint. She is sued in her individual capacity.
36.

James Huff is a former Denver Police Department Detective. He acted

under color of law and in the scope of his employment when engaging in the actions and
omissions alleged in this Complaint. He is sued in his individual capacity. Because Mr.
Huff is deceased, he is sued through his estate and/or personal representative.

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37.

Defendant Ann Perry is a former Denver Police Department Forensic

Serologist. She acted under color of law and in the scope of her employment when
engaging in the actions and omissions alleged in this Complaint. She is sued in her
individual capacity.
IV.
A.

FACTUAL BACKGROUND

The 1987 Rape and Assault of T.S.1
38.

On the night of August 15, 1987, in Denver, Colorado, a group of people

were drinking alcohol at the home of Pamela (“Poo-Poo”) Sanders. The group at Ms.
Sanders’s home included Ms. Sanders’s close friend and neighbor, T.S.; Ms. Sanders’s
then-boyfriend, L.C. Jackson; his brother Earl; and a man named Darnell. Ms. Sanders
lived in an attached unit of a low-income housing project, only two doors down from the
similar unit that was T.S.’s home. L.C. Jackson was living at Ms. Sanders’s home at that
time, and knew that T.S.’s home had a similar floor plan.
39.

T.S., a 4’11”, 98-pound woman, had been drinking alcohol all evening and

continued to drink malt liquor at Ms. Sanders’s party until around 2:15 am the next
morning, August 16, 1987. She drank at least five or six Schlitz Malt Liquor Bulls until
she felt sick to her stomach and decided to walk home.
40.

Mr. Moses-EL did not attend this party.

41.

When she arrived home, T.S. was alone in the house with her two young

children, who were six months and two years old. Her boyfriend at the time was
1

This Complaint refers to the victim by her initials, “T.S.”
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allegedly in Georgia. T.S. was someone who believed she had premonitions or visions
that came true. She had recently had a premonition that something bad was going to
happen to her while her boyfriend was away. Therefore, she and the children were
sleeping in the living room.
42.

Upon arriving home, T.S. took off her glasses and lay down on the couch in

the living room to sleep. She got up to go vomit and then lay back down.
43.

All the lights were off, and the house was dark.

44.

T.S. was extremely nearsighted, and her glasses were very thick. Without

her glasses on, she was basically blind.
45.

While she was lying on the couch in the dark, an unseen person started

beating her so severely that several bones in her face were fractured, her eyes swelled
shut, and she was knocked unconscious. When she regained consciousness, the attacker
was choking her. He repeatedly sexually assaulted her, raping her both vaginally and
anally and penetrating her with his fingers and his penis.
46.

While the assailant was in the midst of sexually assaulting T.S. on the

living-room couch, she accidentally kicked her baby from the couch onto the floor. The
assailant picked the baby up and swung her back up onto the couch.
47.

The assailant then covered T.S.’s face with his do-rag, put it around her

neck, and dragged her upstairs, where he raped her again in her upstairs bedroom.

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48.

While they were upstairs, T.S. heard her baby starting to cry. She asked her

assailant if she could go get her baby. He hit her again in the face and told her to “shut
up.”
49.

The assailant left T.S.’s home. Her wallet was left behind on the floor as if

it had been rifled through.
50.

T.S. believed the assailant had entered her home through her kitchen

window.
51.

After the assailant departed, T.S. left her home and first went to Ms.

Sanders’s home. She knocked, but no one answered. She then walked to the nearby
home of her sister, Denise Cousins, to get help. Around 3:30 am, Ms. Cousins opened
her door and saw a woman injured and bleeding. T.S. was so badly beaten that Ms.
Cousins initially did not even recognize her (her own sister). T.S. told Ms. Cousins that
she had been raped. T.S. described what had happened but did not identify her rapist.
Ms. Cousins’s then-boyfriend, Floyd Wesley Howard, called the police.
52.

At this point—shortly after her attack—T.S. did not identify Mr. Moses-EL

as her assailant, even though he lived in her neighborhood and was known to her by his
then-nickname, “Bubbles.”
53.

At around 3:50 am, the police arrived. The responding officer interviewed

T.S. about what had happened to her and asked her for information about her attacker.
T.S. told him that she did not get a good look at him because it had been dark and the

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lights were out. The only description she could provide was: a black male with slickedback, wavy hair. T.S. told the officer that she had been with two men earlier that night
who had the same hairstyle as the assailant: L.C. and Earl.
54.

T.S. was taken by ambulance to the hospital that morning. A couple of

hours later, her sister, Ms. Cousins, visited her there. Ms. Cousins repeatedly asked T.S.
who had done this to her, and T.S. replied: “Darnell, Earl, L.C.” T.S. also told police at
the hospital that her assailant was L.C., Earl, or Darnell.
B.

T.S.’s Unreliable “Identification” of Mr. Moses-EL.
55.

At the hospital, T.S. was given narcotic pain medication.

56.

More than a day after arriving at the hospital, while medicated, she had a

dream in which she believed that she had “re-lived” the attack. Shortly after awaking
from this dream, in a phone call with her sister Ms. Cousins, T.S. first identified Mr.
Moses-EL as the person who had attacked her.
57.

She was questioned about this “identification” in later legal proceedings:
Q: All right. Now, when did you identify Clarence Moses?
A: What do you mean?
Q: It was about a day or day-and-a-half after this happened,
right?
A: Yeah.
Q: Okay. And what were the circumstances that you realized
that that’s who it was?

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A: Well, I didn’t know his name. I had to find out his name
first.
Q: Well, you knew him by his nickname, right?
A: Yeah.
Q: Well, you had also said earlier that it was L.C.?
A: Right.
Q: And you said it was Darnell?
A: Right.
Q: And you said it was Earl?
A: Right.
Q: And at some point later on that you made the decision that
it was Clarence?
A: Right.
Q. What happened that changed your mind? Were you still in
the hospital at that time?
A. Yes.
Q. Okay. Would it be true to say that at some point you had a
dream and you relived it?
A: Right.
Q: And that’s when you realized it was Clarence?
A: Right.
Q: And it wasn’t until that time, right?

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A: Well, I knew before, but it wouldn’t come out.
Q: Okay. It came in the dream?
A: Well, it came after when I woke up, and it happened in my
sleep.2
58.

No other witness tied Mr. Moses-EL to the attack on T.S. Nor was there

any physical evidence that connected him to the attack. The only evidence tying Mr.
Moses-EL to these crimes was T.S.’s dream.
59.

It was implausible that a reliable memory would come to a medicated

victim in a dream many hours after the attack and after she said she did not see the
perpetrator and then identified other men.
60.

Additionally, it was well known that there was hostility and animosity

between T.S. and Mr. Moses-EL’s then-girlfriend, Stephanie Burke.
61.

T.S. and Ms. Burke had had several heated altercations in public

concerning the relationship between their two small children. T.S. had accused Ms.
Burke’s son Anthony (age 3) of having bullied T.S.’s son (age 2). On at least one
occasion, this hostility had erupted into a physical fight between the two women.
62.

T.S. knew Mr. Moses-EL only through his association with Ms. Burke. At

Mr. Moses-EL’s preliminary hearing, when asked how she knew Mr. Moses-EL, T.S.
responded, “’Cause he always comes walking past the house, him and his girlfriend,”
referring to Ms. Burke.
2

T.S. Trial Testimony, Tr. 04/05/88, pp. 91-92.
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63.

The hostility between T.S. and Ms. Burke became even more apparent

during the preliminary hearing, when T.S. went so far as to accuse Ms. Burke of having
served as the lookout for the crime. T.S. had not made this accusation previously, and it
was false. When asked by defense counsel whether she had told the police this, T.S.
replied, “I don’t know. I don’t know. I don’t remember.”
64.

Defendant Huff, assigned to investigate the sexual assault on T.S., later

made a sworn statement expressing his doubts about the validity of T.S.’s identification
of Mr. Moses-EL. The neighborhood feud was “a red flag” for him. At the time of the
initial investigation, he conveyed his concerns to the Denver DA’s Office about whether
T.S.’s identification of Mr. Moses-EL was the product of neighborhood drama.
C.

Failure to Adequately Investigate the Crimes Against T.S.
65.

The Denver Police Department, including Defendant Huff, and the Denver

DA’s Office did not ever fully believe T.S.’s account of the crimes against her. For
example, although T.S. claimed that Ms. Burke had served as a lookout for Mr. MosesEL—which, if true, would have made Ms. Burke an accomplice to the crimes—the
Denver Police Department did not arrest Ms. Burke, and the Denver DA’s Office never
charged Ms. Burke in connection with the attack on T.S.
66.

Despite their justified skepticism about the accuracy of T.S.’s identification

of Mr. Moses-EL, the Denver Police Department, including Defendant Huff, and the
Denver DA’s Office stopped investigating the identity of the perpetrator once Mr. MosesEL had been arrested and charged.
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67.

On information and belief, the Denver Police Department, including

Defendant Huff, and the Denver DA’s Office never investigated L.C. Jackson, Earl, or
Darnell as potential suspects in the attack on T.S., despite being aware of the following
facts: (i) these three men were at the party drinking with T.S. that night; (ii) when T.S.
initially spoke to the responding police officer and explained that she had not gotten a
good look at her attacker because it was dark, she described the attacker’s hairstyle and
said it was like the hairstyles of L.C. and Earl; and (iii) at the hospital, before her dreaminduced identification of Mr. Moses-EL, when asked by her sister and the police who had
committed the attack, T.S. repeatedly identified L.C., Earl, and Darnell.
68.

In late August 1987, had the Denver Police Department, including

Defendant Huff, done their job and adequately investigated L.C. Jackson as a suspect in
the crimes against T.S., they would have seen that he had been prosecuted as an adult for
a prior sexual assault in 1984 near Sloan’s Lake,3 and they would have seen references to
him having committed other sexual assaults when he was a juvenile.
69.

Mr. Jackson claimed that the victim of his 1984 sexual assault had

consented.
70.

In 1987, had the Denver Police Department, including Defendant Huff,

made any attempt to inquire where Mr. Jackson was during the time T.S. was attacked,
they would have learned that he was gone from Ms. Sanders’s home during the time of
3

Denver District Court Case No. 1985CR57—the Denver DA’s Office allowed Mr.
Jackson to plead down to a non-sex misdemeanor.
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the attack two doors down. Ms. Sanders could have told them that Mr. Jackson had left
her home—purportedly to visit his grandmother—approximately 20 minutes after T.S.
left the party, and that he then returned to Ms. Sanders’s home about 10-15 minutes
before the neighborhood was alerted to the attack. They could have also interviewed Mr.
Jackson’s grandmother to determine whether he lied to Ms. Sanders about having visited
her that night around 2:30 or 3:00 am.
71.

On November 2, 1987—before Mr. Moses-EL case went to trial—Mr.

Jackson burglarized his aunt’s home in Denver. In this burglary, Mr. Jackson targeted
the familiar home of a woman alone, entered through a window, and went to an upstairs
bedroom and stole jewelry, which he later tried to sell for cash to buy crack cocaine.
72.

The Denver Police Department investigated this burglary case of Mr.

Jackson’s. Defendant Carroll, then a Denver Police Department Detective, was the lead
investigator on the case.
73.

The Denver DAs’ Office prosecuted Mr. Jackson for this burglary.

74.

In 1988, Mr. Jackson was convicted of second-degree burglary for this

crime and sentenced to 8 years in prison.4
75.

Notwithstanding Mr. Jackson’s burglary of his aunt’s home less than three

months after the attack on T.S. that shared some similarities with that crime, on
information and belief, neither the Denver Police Department, including Defendant Huff,

4

Denver District Court Case No. 1988CR64.
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nor the Denver DA’s Office revisited the question of whether it was Mr. Jackson and not
Mr. Moses-EL who had committed the crimes against T.S.
76.

The laser-focus of the Denver Police Department, including Defendant

Huff, and the Denver DA’s Office on Mr. Moses-EL as the presumed perpetrator of the
attack on T.S. meant that they failed to realize the significance of Mr. Jackson’s burglary.
77.

Also, had the Denver Police Department, including Defendant Huff, and

the Denver DA’s Office investigated T.S.’s case properly by treating Mr. Jackson as a
potential suspect, he would not have been left at liberty to burglarize his aunt’s home.
78.

As a further example of how the Denver Police Department, including

Defendant Huff, and the Denver DA’s Office stopped investigating the identity of the
perpetrator once Mr. Moses-EL had been arrested and charged, upon information and
belief, they failed to investigate T.S.’s boyfriend as a suspect, despite knowing that T.S.
had said he had previously broken her arm, and she was afraid he would kill her.
D.

There Was No Probable Cause to Arrest and Prosecute Mr. Moses-EL.
79.

There was no physical evidence tying Mr. Moses-EL to the crimes against

80.

The attack occurred in the middle of the night, in the dark. T.S. was

T.S.

heavily intoxicated from drinking malt liquor to the point that she had vomited. She was
severely nearsighted, but not wearing her glasses. She was beaten on the head and face,
suffering broken bones and massive swelling around her eyes.

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81.

T.S. initially told police on the scene she had not gotten a good look at the

perpetrator because the lights were out.
82.

The limited physical description given by T.S.—black male, wavy hair

slicked back with grease—did not match Mr. Moses-EL. Mr. Moses-EL had very short,
buzz-cut hair that could not be slicked back, and he did not wear grease in it.
83.

This hairstyle described by T.S. did match—according to her—the

hairstyles worn by L.C. Jackson and his brother Earl.
84.

Before her medicated dream in which she believed she re-lived the attack,

when asked who had attacked her, T.S. repeatedly identified L.C., Earl, and Darnell.
85.

L.C. Jackson also left his girlfriend’s home at the time of the attack and had

a history of committing sexual assaults.
86.

Mr. Moses-EL had no history of committing any sexual crimes.

87.

The sole evidence tying Mr. Moses-EL to the attack on T.S. was her dream-

induced identification of him more than a day after the attack, when she was in the
hospital on prescribed narcotics.
88.

On the night of the attack, a rape kit was performed on T.S. at the hospital

to collect biological evidence of the sexual assaults. Vaginal swabs collected from T.S.
were later tested by the Colorado Bureau of Investigation. Analysis of these swabs
indicated the presence of semen and sperm. Although DNA testing was not yet regularly
used, ABO blood typing was conducted on the evidence samples. The only blood type

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detected was O, which was consistent with T.S., who is a Type O secretor, meaning that
antigens reflecting her O blood type are found in her other bodily fluids. This blood type
is inconsistent, however, with Mr. Moses-EL, who is a type B secretor, meaning that
antigens reflecting his B blood type are found in his other bodily fluids, including semen.
89.

The Denver Police Department, including Defendant Huff, and the Denver

DA’s Office knew of the lack of physical evidence against Mr. Moses-EL and the
unreliability of T.S.’s identification of him but arrested and prosecuted him for these
serious crimes nonetheless.
90.

On information and belief, the decision to bring Mr. Moses-EL to trial for

the attack on T.S. was based in large part on the conclusions made by Defendant BrownDressel that no man including Mr. Moses-EL could be excluded by the forensic serology
test done on the evidence from T.S.
E.

Mr. Moses-EL’s Unlawful Arrest and First Trial.
91.

Despite the complete lack of physical evidence implicating Mr. Moses-EL

and the obvious unreliability of T.S.’s identification of him, Mr. Moses-EL was arrested
on August 18, 1987, while riding a bike with his 3-year-old son.
92.

L.C. Jackson was never investigated as a suspect nor arrested in connection

with the attack on T.S.
93.

Knowing he was innocent, from the moment he was arrested Mr. Moses-EL

began calling for the collection and testing of biological evidence to exonerate himself.

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94.

Despite Mr. Moses-EL’s repeated requests for DNA testing, Mr.

Moses-EL’s deputy public defender failed to obtain DNA testing of the biological
evidence in the rape kit and the clothing seized from T.S.’s home. His reason for this
failure was because the prevailing view among the leadership in the public defender’s
office at that time was that DNA testing generally benefitted prosecutors and the
admission of evidence of such DNA testing should be opposed in every case.
95.

Mr. Moses-EL was charged with first-degree sexual assault, second-degree

burglary, and second-degree assault.
96.

Mr. Moses-EL’s first jury trial was from April 4-7, 1988.

97.

On the night of the assault, vaginal swabs were collected from T.S. and

later tested by Denver Police Department forensic serologist Defendant Brown-Dressel.5
Analysis of these swabs indicated the presence of semen and sperm. Defendant BrownDressel conducted ABO blood typing on the evidence samples.
98.

By the time of the first trial, Defendant Brown-Dressel was working as a

forensic serologist with the Colorado Bureau of Investigation. The Denver DA’s Office
presented expert testimony from Defendant Brown-Dressel explaining that T.S. was an O
secretor and Mr. Moses-EL was a B secretor, meaning that they each secrete antigens
indicating their blood type into their bodily fluids, such as vaginal fluid or semen.

5

At the time of Mr. Moses-EL’s first trial, Defendant Brown-Dressel went by the name of Dr.
Kathren Brown.
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99.

Defendant Brown-Dressel explained that there was no B antigen detected in

the evidence samples recovered from T.S. She did find evidence of an O secretor, which
was consistent with T.S.’s blood type.
100.

Defendant Brown-Dressel opined that the absence of B antigens in the

samples collected from T.S. did not mean that Mr. Moses-EL could not be the perpetrator
and that she could not “exclude any males from depositing that seminal fluid.”
Defendant Brown-Dressel told the jury that because the blood group detected on the
evidence sample matched that of T.S., she could have been detecting antigens only from
T.S. and not also antigens from the male perpetrator. Therefore, she opined that no male
could be excluded from being the source of the sperm, and all she could conclude from
the biological evidence was that there had been evidence of sexual activity with a male.
101.

Mr. Moses-EL’s public defender did not challenge this conclusion by

presenting a defense serology expert to testify that because Mr. Moses-EL is a B secretor,
one would expect to find evidence of his blood type in his bodily fluids, including his
semen.
102.

However, Defendant Brown-Dressel knew at the time of her testimony that

the test she used was highly sensitive and was capable of detecting even a weak foreign
antigen in an evidence sample. She had used a technique called “absorption inhibition,”
which was the most sensitive test available for the detection of blood antigens.

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Defendant Brown-Dressel had used this test specifically to ensure that if there was B
antigen present in the evidence sample, she would detect it.
103.

Just a few weeks before her testimony at Mr. Moses-EL’s first trial, in a

different case, Defendant Brown-Dressel had successfully detected a weak foreign male
antigen (in that case, A antigen) amongst a large amount of H antigen in an evidence
sample. In that earlier case, she was able to use absorption inhibition to determine a
“weak” presence of a foreign blood type, which she then used to identify perpetrator.
104.

This was favorable information under Brady v. Maryland, 373 U.S. 83

(1963), that the Denver DA’s Office was obliged to but failed to disclose to Mr. MosesEL or his attorneys.
105.

Thus, although Defendant Brown-Dressel knew: (i) that the samples in Mr.

Moses-EL’s case should have included antigens from a male contributor (since semen
was present); (ii) that the absorption inhibition technique she used was capable of
detecting even a weak presence of a foreign blood type; and (iii) antigens indicating Mr.
Moses-EL’s blood type were not detected, she knowingly and with reckless disregard for
the truth opined for the jury at the first trial that neither Mr. Moses-EL nor any other man
could be excluded as the perpetrator.
106.

Given the sensitivity of the absorption inhibition test and the fact that male

seminal fluid was present, had Mr. Moses-EL been the contributor of that semen,
antigens indicating his blood type should have been detected.

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107.

A defense expert reviewing the information decades later concluded that

there was 93% detectability in this scenario, meaning that it was highly unlikely that if
Mr. Moses-EL’s antigen was present, it would not have been detected. A different expert
later said upon review of Defendant Brown-Dressel’s work in Mr. Moses-EL’s case,
“[t]he fact that Dr. Brown[-Dressel] did not find the B substance indicated, very strongly,
that Mr. Moses[-EL] was not the donor of the semen.” This expert further noted that “Dr.
Brown[-Dressel]’s failure to mention that the defendant was effectively excluded as the
donor of the semen on the vaginal swab was, at best, disingenuous … such a failure to
disclose is both quite disturbing and scientifically improper.”
108.

Defendant Brown-Dressel knew that the test results in Mr. Moses-EL’s

case could actually provide significant exculpatory information, but she deliberately
mischaracterized the results to the jury at the first trial as nothing more than inconclusive.
109.

Moreover, even if she deemed the serology results inconclusive, Defendant

Brown-Dressel, could have easily performed DNA testing. At that time, she knew of the
existence of DNA testing, and she knew that such a test could have conclusively
exonerated Mr. Moses-EL.
110.

Despite the fact that Defendant Brown-Dressel did sometimes express her

opinions regarding the best tests to be conducted to officers or prosecutors, and would
even request particular kinds of testing be done in some cases, she did not make any
effort whatsoever to pursue DNA testing in Mr. Moses-EL’s case.

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111.

In 1987 and 1988, the Denver Police Department’s Forensic Laboratory

had no standard operating procedure or formal scientific analytical method for serology
procedures to ensure consistent and reliable scientific testing and analysis.
112.

Standard operating procedures in a crime lab are necessary to ensure good

scientific practice and consistent procedure and allow other scientists to revisit tests and
look at exactly what was done in any particular case.
113.

Because there was no standard operating procedure, Defendant Brown-

Dressel was not required to request a DNA test for the evidence in Mr. Moses-EL’s case
or to formally report the decisions she made about which scientific tests to perform.
114.

Because the Denver Police Department did not have standard operating

procedures or requirements for methodical documentation, Mr. Moses-EL’s defense
teams were constrained in their ability to question the reliability of Defendant BrownDressel’s tests and conclusions and provide him a vigorous defense.
115.

Despite T.S.’s earlier statements that it was dark and she could not get a

good look at her attacker, she testified at Mr. Moses-EL’s first trial that she had three
separate opportunities to view her attacker.
116.

Mr. Moses-EL did not testify in his defense.

117.

On April 7, 1988, Mr. Moses-EL was convicted of first-degree sexual

assault, second-degree burglary, and second-degree assault.

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118.

On March 17, 1989, he was sentenced to 48 years on the sexual-assault

conviction and 16 years each on the other two convictions, to be served concurrently, for
a total cumulative sentence of 48 years in prison.
F.

Due to the Failure to Adequately Investigate Mr. Jackson as a Suspect, He
Continues to Commit Crimes.
119.

While Mr. Moses-EL sat in prison for crimes he did not commit, Mr.

Jackson was at liberty to continue committing crimes.
120.

Sometime around 1992, Mr. Jackson held his then-girlfriend D.Y.H.6 down

on her bed and choked her nearly to death, so hard that the blood vessels in her eyeballs
burst. He also stole items from her home.
121.

In 1992, about a mile away from the location where T.S. had been beaten,

sexually assaulted, and choked by a male intruder while her boyfriend was out of state,
Mr. Jackson viciously raped a middle-aged woman and her nine-year old daughter in
their respective bedrooms in the upstairs of their home at around 2:30 a.m. while the
woman’s boyfriend was in jail.
122.

At the time of these 1992 sexual assaults of the mother and daughter, Mr.

Jackson was staying with his then-girlfriend D.Y.H, who was a neighbor of theirs and
indeed lived in the same low-income housing project as them.
123.

It was generally known in the neighborhood that the mother’s boyfriend

was in jail at the time.
6

Because D.Y.H. is a crime victim, the Complaint refers to her by her initials.
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124.

Mr. Jackson choked the mother and sexually assaulted her both vaginally

and orally. At one point during the sexual assault, he placed a pillowcase over her head.
He told her to “shut up.” And he reeked of malt liquor.
125.

Mr. Jackson forcibly moved the mother downstairs and tied her up in the

basement. He scattered the contents of her purse and stole items of value.
126.

Three young children (including the nine-year old sexual assault victim)

were in the house at the time of the attacks. Mr. Jackson sexually assaulted the nineyear-old girl on her bed while her younger brother was present in a crib in the same
bedroom.
127.

Mr. Jackson also banged the girl’s head against the headboard, injuring her

128.

These 1992 crimes remained unsolved for more than a decade.

head.

G.

Mr. Moses-EL’s Relentless Efforts to Exonerate Himself.
129.

Meanwhile, Mr. Moses-EL continued to advocate from prison for the

evidence in his case to be tested for DNA, which would conclusively prove his
innocence.
130.

In August 1992, Mr. Moses-EL filed a pro se motion under Rule 35(c) of

the Colorado Rules of Criminal Procedure based in part on a claim of ineffective
assistance of counsel because his public defender had failed to obtain DNA testing prior
to trial. The motion was denied without a hearing.

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131.

On September 30, 1993, the Colorado Court of Appeals reversed the denial

of Mr. Moses-EL’s Rule 35(c) motion without a hearing, and the case was remanded for
a hearing on his claim of ineffective assistance of counsel for failure to have DNA testing
performed on certain crime scene samples and to determine whether those samples were
still available for testing.
132.

On November 11, 1993, the Denver Police Department made an inquiry

regarding the availability of evidence in the 1987 sexual assault of T.S. This inquiry
revealed that the evidence was still in the possession of the courts. On November 20,
1993, the evidence was reentered into the Denver Police Department’s Property Bureau
to evaluate if there was DNA present for analysis. This was reported to Defendant Huff
on November 20, 1993.
133.

Mr. Moses-EL’s defense counsel requested that the Denver DA’s Office

and the Denver Police Department preserve the evidence so that Mr. Moses-EL could
hire a laboratory to conduct DNA testing. It was then agreed among Mr. Moses-EL’s
defense counsel, the Denver DA’s Office, and the Denver District Court that the items
would be held pending Mr. Moses-EL obtaining the funds for such testing.
H.

The Destruction of Evidence That Would Have Exonerated Mr. Moses-EL.
134.

Mr. Moses-EL, an indigent prisoner, began raising money from other

inmates to conduct the DNA testing. Inmates convicted of sexual assault generally take
huge precautions to conceal their crime of conviction because such offenders are targets
of violence and exploitation by other prisoners. Putting himself in clear danger, Mr.
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Moses-EL told other prisoners that he was imprisoned for a sex-assault conviction. He
explained that he had been wrongly convicted and was trying to raise money to obtain a
DNA test to clear himself.
135.

Mr. Moses-EL understood the risks of disclosing the nature of his

conviction. He further knew that if he received money from other inmates for a DNA test
that failed to exonerate him, he would be targeted not only as a sex offender but also as a
liar who had taken other inmates’ money on false pretenses. But Mr. Moses-EL knew he
was innocent and trusted that DNA testing would exonerate him, so he sought funds from
his fellow prisoners.
136.

Mr. Moses-EL successfully raised the $1,000 he needed for a DNA test.

137.

In May 1995, Defendant Robin Whitley, the Deputy Denver District

Attorney assigned to Mr. Moses-EL’s case, contacted Defendant Ann Perry, a civilian
employee forensic serologist in the Denver Police Department Crime Laboratory, and
asked her to determine whether the crime-scene samples were still available. Defendant
Whitley instructed Defendant Perry to preserve the samples if they were still available.
138.

In July 1995, Defendant Perry determined that the samples were still

available. She packaged them for shipping by putting them in a sealed box and marked
the package “DO NOT DESTROY” in bolded sharpie marker. On July 19, 1995,
Defendant Perry made the following computer entry in the Denver Police Department

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property section inventory system relating to the invoice under which the samples were
held: “Hold for DA Robin Whitley.”
139.

After packaging the samples and making the computer entry, Defendant

Perry left the samples in the Denver Police Department Property Management Bureau
and had no more contact with the samples.
140.

Despite the fact that Defendant Perry was aware that the investigating

detective—in this case Defendant Huff—had final say on the destruction of evidence, she
did not contact Defendant Huff to inform him of the need to preserve the evidence
samples.
141.

Defendant Whitley conducted no follow-up to ensure that the evidence that

was “available” would be preserved. Defendant Whitley did not contact Defendant Huff
to inform him of the need for preservation of this evidence.
142.

On or about October 5, 1995, Denver Police Department Property

Management Bureau Technician R. Cubbage sent to Defendant Huff, as part of
Technician Cubbage’s routine duties, a computer printout requesting instructions
regarding the disposition of the property held under a numbered invoice that included the
evidence samples for the attack on T.S. Technician Cubbage later stated he was unaware
of any actions by Defendants Whitley and Perry to preserve the samples.
143.

The Denver Police Department had no policies in place to ensure that

physical evidence that was supposed to be preserved was actually being preserved.

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144.

Defendant Huff testified that in determining whether the property identified

in an invoice from Technician Cubbage should be held, destroyed, or sold, Detective
Huff looked only at the date on the invoice. On October 11, 1995, Defendant Huff
looked at the invoice from Technician Cubbage, saw that it was for a case dated August
16, 1987, and concluded that since the evidence was from a 1987 case, it would no longer
be needed. Defendant Huff therefore marked the invoice for disposal.
145.

Because the Denver Police Department had inadequate evidence-

preservation procedures in place, Defendant Huff did not look at the “comments” section
of the invoice from Technician Cubbard. Had he done so, he would have seen the
comment that stated: “HOLD FOR DA ROBIN WHITLEY”:

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Exerpt of Inventory Sheet Marked by Defendant Huff
(comment highlighted, victim information redacted)
146.

Defendant Huff had the final say on destruction of evidence he was

responsible for overseeing, and his decision was not reviewed before it was carried out.
147.

Defendant Huff would later testify that in his experience, when there have

been “holds” on evidence, he has been directly contacted by the DA or someone else who
was requesting the hold to inform him about it. He testified that he was not contacted by
Defendants Perry or Whitley regarding the need to hold the evidence in Mr. Moses-EL’s
case.

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148.

Defendant Huff later testified that he was unaware that the case was

active—even though he had been sent a memorandum on November 20, 1993, stating
that the evidence was being reentered into the Denver Police Department’s Property
Bureau to evaluate if there was DNA present for analysis.
149.

On October 17, 1995, just six days after Defendant Huff had directed

Technician Cubbage to destroy the evidence, Defendant Perry wrote Defendant Whitley a
memorandum advising him that a sealed box containing the rape kit of samples collected
from T.S. and the clothing to be tested was “available” in the Denver Police Department
Property Bureau.
150.

On information and belief, Defendant Perry drafted and circulated this

memorandum without first checking on the preservation of the evidence. Had she done
so, she would have seen that this evidence was in the process of being destroyed.
151.

The Denver Police Department did not have a policy in place to ensure that

all relevant individuals were aware when evidence should not be disposed of. If such a
policy had been in place, Defendant Perry would have checked on the evidence before
circulating her October 17, 1995 memorandum.
152.

The Denver Police Department also did not have a policy in place requiring

Detectives in charge of making decisions about evidence disposal to check with case
prosecutors before authorizing the destruction of evidence.

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153.

On October 26, 1995, Defendant Whitley wrote a letter to Mr. Moses-EL’s

defense counsel advising him that the evidence was available to be picked up from the
police department upon the Court’s signing of the order authorizing it.
154.

Defendant Whitley made no effort at this juncture to ensure that the

evidence that was “available” would be preserved.
155.

On November 2, 1995, the prosecution and defense entered into a

stipulation for the release and shipping of the rape kit and clothing to a lab in California
for defense DNA testing. On the same day, the Denver District Court entered an Order
for the release and testing of the evidence. The Order required the defense to ship the
evidence promptly by Federal Express.
156.

The evidence was available for pickup on November 2, 1995.

157.

As Defendant Whitley and the Denver DA’s Office were aware, in order to

maintain a secure chain of custody, Mr. Moses-EL’s defense counsel wanted to include a
semen sample from Mr. Moses-EL with the crime-scene evidence samples it was
supposed to pick up from the Denver Police Department and directly send to the DNA
laboratory in California. The procurement of an untainted semen sample from an
incarcerated person can take time to facilitate, and the defense team was awaiting Mr.
Moses-EL’s transfer to a Denver facility for the purpose of collection. Thus, the defense
did not immediately pick up the evidence from the Denver Police Department because

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they were not ready to Fed-Ex the evidence to the lab without Mr. Moses-EL’s semen
sample.
158.

On or about December 3, 1995, Technician Cubbage, acting according to

standard procedure, retrieved the invoice for the evidence in Mr. Moses-EL’s case and
other invoices indicating that their respective evidence should be destroyed. He then
retrieved all of the property to be disposed of from the bins in the Denver Police
Department Property Bureau and put all the property on a flatbed. From there, all of the
property marked for destruction—and Mr. Moses-EL’s only chance to conclusively prove
his innocence through DNA testing—went to a trash dumpster and was destroyed.
159.

Technician Cubbage later testified that his job duties at the Denver Police

Department Property Bureau vis a vis the disposition of property were merely to identify
items designated for disposal by the assigned detective by invoice number and then
proceed with the disposal as directed.
160.

No Denver Police Department policy was in place that would have required

Technician Cubbage to read the comments section of the computer printouts or to inspect
individual items of evidence for preservation notations. Therefore, Technician Cubbage
simply referred to the detective’s decision as marked on the invoice and carried it out.
161.

On or about January 24, 1996, Defendant Whitley first became aware that

the evidence samples in Mr. Moses-EL’s case had been destroyed.

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162.

Shortly thereafter, Mr. Moses-EL received a letter notifying him that the

evidence he had been pleading for years and years to have tested for DNA had been
recklessly destroyed.
163.

Mr. Moses-EL later described that moment: “I literally broke down in the

cell. I said, ‘Man, I know that didn’t happen.’ I was blown away. Broken. I felt like a
person who was given cement shoes and thrown in the water just to sink.”
164.

No one connected with the evidence destruction in Mr. Moses-EL’s case

was ever reprimanded or disciplined.
I.

The Denver Police Department and the Denver District Attorney’s Pattern of
Mishandling Evidence.
165.

In a March 1, 1996, Denver Police Department Inter-Department

Correspondence from Lieutenant Elizabeth Walter, Commander of Denver Police
Department’s Property Management Bureau, to Daniel O’Hayre, Division Chief, Staff
Services Division, Lt. Walter discussed a memorandum from Lamar Sims.
166.

In 1996, Mr. Sims was a Chief Deputy District Attorney in charge of Police

Liaison/Administration at the Denver DA’s Office.
167.

On information and belief, Mr. Sims had recently circulated a

memorandum recounting several criminal cases in which evidence had been mishandled
by the Denver Police Department Property Bureau and/or the Denver DA’s Office and
seeking information about the recurring problem. In her correspondence, which appears
to be a response to Mr. Sims’s memorandum, Lt. Walter began by stating she had

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reviewed Mr. Sims’s memorandum and she had spoken with him “and expressed [her]
desire to assist him and others in the formulation of a better system.” Lt. Walter went on
to say that “[a]s you know, our position in Property is custodial in nature. We do not
judge or determine an officer or detective’s action, but carry out the directions given. In
the cases cited by Mr. Sims, communications problems occurred between either the
detectives and the Assistant Deputy District Attorney or detectives from two different
bureaus.”
168.

In this correspondence, Lt. Walter proceeded to describe not only the

destruction of evidence in Mr. Moses-EL’s case that had occurred at the Denver Police
Department Property Bureau but also the separate loss of other biological evidence from
the case: refrigerated samples of saliva and blood that had been kept at a laboratory.
169.

Lt. Walter’s correspondence explained that in 1987, Defendant Huff had

placed two tubes of blood and three tubes of saliva for Mr. Moses-EL’s case under
Invoice #358430. Her records of this invoice show that these blood and saliva samples
were placed in the “Lab” and never in the Property Bureau.
170.

She went on to say that although Defendant Huff had marked this evidence

for destruction in 1988, it had not been destroyed. She did not elaborate why evidence
marked for destruction was not destroyed.
171.

Lt. Walter continued: “Since discovering the possible existence of the

blood and saliva on February 29, 1996, I have contacted Sergeant Mark Olin and

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Sergeant Lester Smith. Sergeant Smith and I were unable to find the samples. Sergeant
Olin has not informed me of any results. Ms. Sharon Sekerak and I also checked the
Pump Room, but found no obvious samples, only reports. Thus, there is a small chance
that the blood and saliva samples may still exist – if not destroyed by the lab.”
172.

Lt. Walter blamed Defendant Huff for the destruction of the rape kit and

clothing to be tested for DNA in Mr. Moses-EL’s case. She noted, “[a]ccording to the
Operations Manual, officers are required to determine case dispositions and, complete the
disposal forms. Whether the case is a minor one or a major one, the assigned detective or
input officer is responsible for the legal trail.”
173.

Lt. Walter characterized the evidence-handling problems as having resulted

from a communication problem between the Denver Police Department and the Assistant
Deputy Denver District Attorney.
174.

Lt. Walter described another problematic incident in another case involving

evidence regarding weapon clearances. At that time, standard procedures dictated that a
weapon placed in evidence is to be cleared with the National Crime Information Center,
and if a “hit” comes back, then it is forwarded to Pawnshop Records. However, in that
case, although a weapon was placed in evidence on August 30, 1995, such a check was
not done in a timely manner, and the first “hit” was not received until January 19, 1996.
A Denver Police Department detective improperly signed the weapon out for release to

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another police department, despite the fact that it was evidence in an ongoing criminal
case.
175.

In discussing that case involving the weapon, Lt. Walter notes that “[d]ue to

a personnel matter, I directed my staff to double check weapon clearances performed
prior to September, 1995. Several previously unknown stolen weapons have been traced,
as a result.”
176.

Lt. Walter’s correspondence also responded to the “persistent rumor of

reckless destruction of controlled substances” that Mr. Simms presumably raised in his
memorandum.
177.

According to a January 30, 1997, affidavit of Lt. Walter, the procedures

utilized by the Denver Police Department and the Denver DA’s Office were in effect and
unchanged from at least 1980 to 1995.
178.

Current international professional standards for proper evidence handling

suggests the use of DNA Destruction Notification letters to notify a criminal defendant
and his/her attorney that biological evidence pertaining to the defendant’s case will be
destroyed by a specified date unless a motion is filed requesting the retention for future
testing.7 No such process was utilized by the Denver Police Department or the Denver
DA’s Office in Mr. Moses-EL’s case.
7

See International Association for Property and Evidence, Inc. Professional Standards,
Version 2.5.1, updated November 2016, pg. 21, available at
http://home.iape.org/resourcesPages/IAPE_Downloads/IAPE_Resources/IAPEProfessional-Standards/IAPE_Stands_2_6-2016.pdf.
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179.

With respect to policies concerning the disposition of evidence, “There

should be special consideration given to NOT disposing of certain evidence without
prosecutorial or judicial review, such as: sex crimes, capital crimes, other serious
felonies, and pending civil litigation.”8 No such process was utilized by the Denver
Police Department and the Denver DA’s Office in Mr. Moses-EL’s case.
180.

According to standards from the National Institute of Standards and

Technology, while “[s]ound internal controls should always include the investigating
officer’s input into this decision … The agency’s investigations unit and/or the
prosecuting agency should be the primary decision maker(s) to determine that evidence is
no longer needed.”9 The Denver Police Department and the Denver DA’s Office did not
have such a policy in place.
181.

International professional standards for the handling of evidence provide:
Comprehensive audits of the Property and Evidence function
of an agency are a very important internal control that should
be conducted at least annually by the Chief Executive Officer
or designee. Additionally, there should be inspections of the
property room conducted by the supervisor, or the unit
commander, who are responsible for that component of the
agency … Conducting routine audits sends a message to
everyone in the organization that property and evidence is
important. Failure to conduct periodic audits may lead to
problems that can later result in criminal prosecutions being

8

Id. at 71.
See the Biological Evidence Preservation Handbook: Best Practices for Evidence
Handlers, National Institute of Standards and Technology & The National Institute of
Justice, April 2013, p. 38, available at https://www.nist.gov/document-2652.

9

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lost, a loss of public confidence, personnel problems and
possible financial loss.10
182.

On information and belief, from 1987 to 1995, there were no such audits or

inspections conducted at the Denver Police Department regarding the preservation and
safekeeping of evidence.
183.

Alternatively, if there was such an audit or review, it was clearly deficient,

as it did not result in a comprehensive policy to ensure that evidence required to be
preserved was in fact preserved.
184.

Thus, despite the grave responsibility that comes with handling and

processing evidence that determines the liberty of fellow human beings, the Denver
Police Department and the Denver DA’s Office had a known and concerning pattern and
practice of failing to properly preserve and handle physical evidence in their custody and
control.
J.

Due to the Failure to Investigate Mr. Jackson as a Suspect, He Continues to
Commit Crimes While Mr. Moses-EL Runs Out of Options to Prove His
Innocence.
185.

On May 13, 1997, Mr. Moses-EL’s motion under Rule 35(c) of the

Colorado Rules of Criminal Procedure was again denied by the Denver District Court.
186.

Meanwhile, in Denver around 1997, Mr. Jackson sexually assaulted the

daughter of a woman he was dating at the time. In 2003, after seeing Mr. Jackson again
at a local amusement park, the girl and her mother reported the earlier sexual assault to

10

Id. at 78, 81.
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the Denver Police Department. The Denver Police Department never followed up on the
investigation, and Mr. Jackson was never prosecuted for this crime.
187.

In late 2005—as the result of a push by the Denver DA’s Office to use

DNA evidence to solve crimes—Denver law-enforcement officials obtained a “cold hit”
match between the biological evidence from the 1992 sexual assaults of a 42-year-old
woman and her 9-year-old daughter and the DNA of Mr. Jackson (which had been
collected from him in connection with his burglary conviction).
188.

On January 9, 2006, Defendant Morrissey, Denver District Attorney, issued

a press release announcing that based on the DNA match, Mr. Jackson was being charged
for the 1992 rapes of the Denver mother and daughter.
189.

The Denver DA’s Office and the Denver Police Department made no effort

to determine whether Mr. Jackson’s blood type matched the biological evidence from the
rape kit in the sexual assault of T.S. for which Mr. Jackson had been identified and Mr.
Moses-EL had been convicted.
190.

In May 2007, the Denver DA’s Office brought Mr. Jackson to trial for the

1992 sexual assaults. Mr. Jackson’s theory of defense was that the woman had consented
to sexual intercourse with him in exchange for drugs, and that the girl was lying.
191.

At Mr. Jackson’s sexual-assault trial, the prosecution presented evidence

that at the time of the 1992 sexual assaults, Mr. Jackson was living with his then-

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girlfriend D.Y.H. in the same low-income housing project as the victims, arguing that this
demonstrated he knew the floor plan of the victims’ home.
192.

This was Brady information for Mr. Moses-EL’s case, given that at the time

when T.S. was raped and assaulted in her own home, Mr. Jackson had been living with a
girlfriend who resided in the same low-income housing project as T.S. The Denver
District Attorney was obliged to disclose this information to Mr. Moses-EL or his
attorneys, but did not do so.
193.

The Denver DA’s Office was also obliged to but failed to disclose to Mr.

Moses-EL or his attorneys many other similarities between the 1992 sexual assaults that
they knew Mr. Jackson had committed and the sexual assault of T.S.
194.

A Denver jury convicted Mr. Jackson of two counts of aggravated first-

degree sexual assault, one count of sexual assault on a child, one count of second-degree
kidnapping, and two habitual criminal counts.
K.

Defendant Morrissey Claims to have Re-Opened Mr. Moses-EL’s Case in
Defending Himself Against Bad Publicity from The Denver Post’s Coverage
of the Evidence Destruction in Mr. Moses-EL’s Case in its “Trashing the
Truth” Series.
195.

In July 2007, The Denver Post profiled the evidence-destruction problems

in Mr. Moses-EL’s case as part of its long-term investigative series, “Trashing the Truth.”
196.

In response, Defendant Morrissey caused the Denver DA’s Office to issue a

public statement or press release titled “Setting the Record Straight.” According to this
public statement, Defendant Morrissey “did reopen the People v. Moses case and he

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personally reviewed all available material. After completing his review, talking with the
original prosecutors and corresponding with defense counsel, he found that everything
that could be presented to a jury, or could be presented [to] a jury now, was presented at
trial and considered by the jury.”
197.

This statement was not true. For example, the fact that Mr. Moses-EL had

sought DNA testing of the biological evidence in the case was not something that was
considered by the jury that convicted him at his first trial. Similarly, the fact that Mr.
Jackson had committed sexual assaults not far from T.S.’s neighborhood and in a similar
manner was also not something considered by the jury that had convicted Mr. Moses-EL.
L.

Mr. Moses-EL’s Opportunity for Freedom Through State Legislative Action
is Torpedoed by Defendants Morrissey and Whitley.
198.

The “Trashing the Truth” series garnered public attention to Mr.

Moses-EL’s plight and the injustice of his case.
199.

On March 5, 2008, thirteen Colorado state legislators wrote a letter to

Defendant Morrissey expressing concern that Mr. Moses-EL may be an innocent man
wrongfully incarcerated. Their letter stated, “We know of your championing of the use
of DNA in criminal cases so we know that you recognize the importance of this form of
evidence.” Based on the destruction of material evidence in Mr. Moses-EL’s case, the
legislators asked Defendant Morrissey to allow Mr. Moses-EL to have a new trial or
recommend some other form of relief.

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200.

On March 12, 2008, State Senator Ken Gordon sponsored and introduced

Senate Bill 08-205, which was inspired by the destruction of evidence in Mr. Moses-EL’s
case. Introducing the bill, Senator Gordon said: “I think the founders would have been
horrified to see that there could be cases where the crucial evidence in a case was
destroyed by law enforcement after a court had ordered that it be tested and there was no
remedy for the defendant.”
201.

Senate Bill 08-205 would have required, retroactively, a new trial in any

case where biological evidence that is subject to a court order for testing is destroyed,
lost, or otherwise disposed of before it is tested, and it would have allowed a court to
dismiss the charges if the judge found that to be the appropriate remedy.
202.

Thus, had it passed, this bill would have at a minimum helped Mr.

Moses-EL obtain a new trial in 2008 or 2009. And it may have resulted in the complete
dismissal of charges instead of retrial.
203.

On March 14, 2008, Defendant Morrissey responded to the letter from the

state legislators. He claimed that he had “re-opened the Moses case in March 2006 and
thoroughly re-examined all of the evidence.”
204.

In his response letter, Defendant Morrissey stated that “the victim in this

case did not name ‘three other suspects’ before identifying her attacker.” However, at the
preliminary hearing held October 27, 1987, T.S. testified that she had identified L.C.,
Earl, and Darnell the night she went to the hospital, before she had her dream in which

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she believed she had re-lived the attack and following which she first accused Mr.
Moses-EL. At Mr. Moses-EL’s first trial, T.S. repeatedly reiterated under oath that she
had identified these three men as her attacker.
205.

Five days later, on March 19, 2008, Defendant Morrissey appeared before

the Colorado Senate Judiciary Committee to testify in opposition to Senate Bill 08-205.
Defendant Morrissey repeatedly said that the bill was about one case: Mr. Moses-EL’s
case. Defendant Morrissey urged committee members to vote against the bill.
206.

A champion of using DNA to obtain convictions, Defendant Morrissey

began his testimony in opposition to Senate Bill 08-205 by distributing copies of his
response letter to the thirteen legislators in which he had falsely claimed that the victim,
T.S., had not named other suspects.
207.

Defendant Morrissey then testified—contrary to the evidence from trial—

that T.S. had immediately identified Mr. Moses-EL as her attacker to others because, he
asserted, T.S.’s sister’s boyfriend had supposedly confronted Mr. Moses-EL right after
T.S. arrived at the sister’s house seeking help. This was untrue and contrary to the
evidence. T.S.’s sister, Denise Cousins, testified that the first time T.S. identified anyone
to her was at the hospital, when T.S. identified “Darnell, Earl and L.C.” Ms. Cousins
testified that T.S. did not assert that her assailant was “Bubbles” (Mr. Moses-EL) until
“like a night after it happened.” Ms. Cousins further testified that after her boyfriend

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(Mr. Howard) had called the police and picked up T.S.’s children, he went to Mr.
Moses-EL’s house and “asked him did he know what happened to [T.S.].”
208.

Also on March 19, 2008, Defendant Whitley testified before the Colorado

Senate Judiciary Committee against Senate Bill 2008-205. Defendant Whitley also stated
that the bill was all about Mr. Moses-EL’s case, and he told legislators it would be
inappropriate for them to provide Mr. Moses-EL with a new trial.
209.

In April 2008, Defendant Morrissey appeared before the Colorado House

Judiciary Committee to again testify in opposition to Senate Bill 08-205. Despite any
facts to support his claim, Defendant Morrissey complained that Mr. Moses-EL’s case
had been misrepresented by the media, the Senate, and “throughout the halls of this
building.” He characterized Senate Bill 08-205 as the “revictimization bill of 2008.”
210.

According to information that came to light in March 201611, there exist

seven pages of email correspondence dated April 30, 2008, among Defendant Morrissey,
his staff at the Denver DA’s Office, and his campaign manager regarding Mr. MosesEL’s case.
211.

As the Denver District Attorney, Defendant Morrissey had considerable

influence with the Colorado state legislators deciding whether to pass a bill that would
have provided Mr. Moses-EL with a new trial. Defendant Morrissey willfully chose to
11

This information was not disclosed to Mr. Moses-EL’s defense team until late March
2016 and only then in response to a request under the Colorado Criminal Justice Records
Act. Defendant Morrissey and the Denver DA’s Office refused to disclose the contents
of this lengthy email correspondence.
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use his position of authority and influence to spread false information about Mr.
Moses-EL’s case, thereby depriving Mr. Moses-EL of the opportunity to obtain his
freedom.
M.

Mr. Jackson, the True Perpetrator, Comes Forward.
212.

On or around April 30, 2012, Mr. Jackson sent a letter to Mr. Moses-EL

saying:
I really don’t know what to say to you. but let’s start
by bringing what was done in the dark into the light. I have a
lot on my heart.
I don’t know who is working on this. but have them
come up and see me. Its time.
I’ll be waiting.
L.C. [sic]

213.

Mr. Jackson began making many admissions of culpability to different

attorneys and investigators representing Mr. Moses-EL. Mr. Jackson generally stated that
he had left the party at Ms. Sanders’s home, entered T.S.’s home, engaged in vaginal and
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anal sexual intercourse with T.S. (which he claimed was consensual on her part), and
then hit her repeatedly in the face and head.
214.

Information detailing Mr. Jackson’s admissions was provided to Defendant

Morrissey.
215.

In December 2013, based on Mr. Jackson’s admissions, Mr. Moses-EL

filed a motion under Rule 35(c) of the Colorado Rules of Criminal Procedure asking the
Denver District Court to vacate his convictions and grant him a new trial based on newly
discovered evidence.
216.

On September 3, 2014, the Denver District Court granted an evidentiary

hearing on Mr. Moses-EL’s motion for a new trial based on newly discovered evidence.
By that point in time, Mr. Moses-EL had been wrongfully imprisoned for more than 27
years.
217.

In her efforts to refute Mr. Moses-EL’s newly-discovered evidence claim,

Defendant Benedetti stated multiple times on the record in Mr. Moses-EL’s case that the
credibility of Mr. Jackson’s admissions was questionable because the statute of
limitations had run on the crimes at issue.
218.

At the request of counsel for Mr. Moses-EL, the Denver District Court

issued a writ for law-enforcement authorities to bring Mr. Jackson from prison to court to
testify as a witness for Mr. Moses-EL.

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219.

On May 14, 2015, Defendant Benedetti suggested that the Denver District

Court appoint counsel to represent Mr. Jackson on the ground that his contemplated
testimony gave him a Fifth-Amendment privilege against self-incrimination because,
Defendant Benedetti asserted, the Denver DA’s Office could prosecute Mr. Jackson for
kidnapping T.S., since there is no statute of limitations for bringing a kidnapping charge
under Colorado law.
220.

Defendant Benedetti was aware of Mr. Jackson’s admissions concerning

the night T.S. was attacked, and she had no intention of prosecuting him for having
kidnapped T.S. She was well aware that Mr. Moses-EL had not been prosecuted for
kidnapping on the same set of crime facts. And she knew that under Colorado law, a
kidnapping charge would be—at best—a stretch.12
221.

Defendant Benedetti made the argument that Mr. Jackson faced potential

liability for kidnapping in order to encourage and cause the Denver District Court to
appoint counsel to advise Mr. Jackson about his Fifth Amendment privilege against selfincrimination. This was because Defendant Benedetti expected and hoped that such
counsel would strongly advise Mr. Jackson to assert a Fifth-Amendment privilege and
thereby refuse to testify for Mr. Moses-EL.
12

People v. Bell, 809 P.2d 1026 (Colo. App. 1990), held that to prove the asportation
element of kidnapping, where the movement of the victim is insubstantial, such as, in
Bell, moving the victim at gunpoint from one room of the victim’s house to another room
of the same house, the prosecution must establish that the insubstantial movement
substantially increased the risk of harm to the victim (a standard that the Colorado Court
of Appeals held was not met on the facts of Bell).
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N.

Defendants Benedetti and Carroll Intimidate Mr. Jackson into Writing a
False Recantation Note.
222.

Knowing that if Mr. Jackson testified at the evidentiary hearing on Mr.

Moses-EL’s motion for new trial, Mr. Jackson would likely admit his involvement in the
attack on T.S., on May 11, 2015, Defendants Benedetti and Carroll visited Mr. Jackson in
prison.
223.

Defendant Carroll began the meeting by reminding Mr. Jackson that

Defendant Carroll had been the arresting Denver Police Detective for Mr. Jackson’s
burglary charge in 1987—for which Mr. Jackson had received an 8-year prison sentence.
224.

At one point during the meeting, Mr. Jackson asked if was under arrest.

225.

Defendant Carroll told Mr. Jackson that he could be indicted if he chose to

file charges against him.
226.

Defendant Benedetti told Mr. Jackson he could face charges of perjury.

227.

Feeling intimidated by Defendants Benedetti and Carroll, Mr. Jackson

reluctantly wrote a note that stated that on the night T.S. was raped, he was home with his
girlfriend (Pamela “Poo-Poo” Sanders), and that he never had sex with T.S.
228.

This recantation note was false.

229.

According to Mr. Jackson, as soon as he wrote the brief recantation note,

Defendant Benedetti “snatched it up,” and she and Defendant Carroll left.

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O.

Mr. Jackson Makes Admissions of His Involvement Under Oath at the
Evidentiary Hearing.
230.

In late July and early August of 2015, the Denver District Court held the

evidentiary hearing on Mr. Moses-EL’s motion for a new trial based on newly discovered
evidence that Mr. Jackson was the true perpetrator of the crimes for which Mr. Moses-EL
had been convicted and imprisoned for nearly three decades.
231.

Mr. Jackson, having been advised by his own, court-appointed independent

counsel, took the stand and testified as a witness for Mr. Moses-EL.
232.

Mr. Jackson credibly admitted under oath at the hearing that on the night

T.S. was attacked, he had entered her home, had vaginal and anal sexual intercourse with
her, got upset at her, and hit her multiple times in the face with his fists.
233.

Mr. Jackson explained that in 1987, he was living with his then-girlfriend

Pamela “Poo-Poo” Sanders, who lived two doors down from T.S. in a low-income
housing project, and that T.S.’s home had a similar layout to Ms. Sanders’s home.
234.

Mr. Jackson testified that after hitting T.S., he returned to Ms. Sanders’s

home, and about 10-15 minutes later, they received a call from T.S.’s sister explaining
that something had happened to T.S.
235.

At the evidentiary hearing, Mr. Jackson explained how he came to write the

letter to Mr. Moses-EL offering to admit his involvement in the crime for which Mr.
Moses-EL was imprisoned. Mr. Jackson testified that he had prayed on the matter, which
had been heavy on him for a while. As a result of his prayer, he decided that he needed

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to clear Mr. Moses-EL for the allegations that he was accused of. Mr. Jackson disclosed
that his liver was failing and that he had Hepatitis C but was choosing not to be on
dialysis. He expressed his belief that if he did not repent his sins, he did not think he
could make it into the kingdom of heaven.13
236.

Mr. Jackson testified that he regretted having written the recantation note

for Defendants Benedetti and Carroll and that he had done so because he felt intimidated
by them.
237.

Mr. Jackson was asked about the violent sexual crimes against the mother

and daughter in 1992 for which he had been successfully prosecuted by the Denver DA’s
Office in 2006. Mr. Jackson admitted that he had sexual intercourse with the mother, but
claimed again that it had been consensual. Mr. Jackson testified that it was the mother
and not he who had banged the girl’s head on the bed, and he claimed that the girl had
never been penetrated.
238.

Regarding the separate burglary of his aunt’s house in November 1987 for

which he had received the 8-year prison sentence, Mr. Jackson admitted that he had tried
to sell his aunt’s jewelry for crack cocaine.
239.

Regarding the incident at Sloan’s Lake in 1984 when he was arrested for

having sexually assaulted a young woman, Mr. Jackson again claimed consent.

13

Evidentiary Hearing Tr. 07/30/15, pp. 49:14-51:11.

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P.

After Mr. Moses-EL’s Convictions are Vacated, Defendants Morrissey and
Kimbrough and the Denver DA’s Office Intentionally Mislead the Media and
the Public about the Facts of Mr. Moses-EL’s Case.
240.

On December 14, 2015, based on newly discovered evidence, the Denver

District Court issued a written order vacating Mr. Moses-EL’s convictions and granting
him a new trial.
241.

A few days later, after spending more than 28 years incarcerated for crimes

he did not commit, Mr. Moses-EL was released on bond.
242.

Within days of the district court’s order granting Mr. Moses-EL a new trial,

the Denver DA’s Office made intentional repeatedly misrepresentations to the media bout
the evidence in the case.
i) Defendant Kimbrough misstates to the New York Daily News that all the
evidence implicating Mr. Jackson had been presented at Mr. Moses-EL’s
original trial.
243.

On December 17, 2015, Defendant Kimbrough, the Communications

Director for the Denver DA’s Office, sent a public relations statement to Alfred Ng of the
New York Daily News. This statement said in part that “[a]ll of the evidence, including
the explanation of the victim’s reference to a dream, was presented to 12 Denver jurors
who convicted Clarence Moses[-]El.”
244.

Mr. Ng promptly wrote back, “Isn’t the new evidence also that Jackson’s

blood type was found on the victim’s clothes, but not Clarence’s blood type? Does the
DA have a response to that?”

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245.

The assertion contained in Mr. Ng’s question was correct. Evidence of Mr.

Jackson’s blood type and the fact that it is highly consistent with the rape-kit evidence in
this case was not presented at Mr. Moses-EL’s original trial. When the Denver DA’s
Office and the Denver Police Department learned in 2005 that Mr. Jackson had raped two
other victims in 1992, they did not bother to determine whether Mr. Jackson’s blood type
matched the biological evidence from the rape kit in the sexual assault for which Mr.
Moses-EL had been convicted. It was Mr. Moses-EL’s defense team who had Mr.
Jackson’s saliva sample tested in 2015 to determine his blood type, which is consistent
with the biological evidence collected from T.S.
246.

Defendant Kimbrough responded to Mr. Ng, “Alfred, I believe that was

known evidence at the original trial. I can follow up tomorrow.”
247.

Based on information and belief, Defendant Kimbrough did not follow up

with Mr. Ng.
ii)

Misstatements in December 18, 2015 press release about circumstances of
the victim’s identification of Mr. Moses-EL and the circumstances of Mr.
Jackson’s admissions.

248.

On December 18, 2015, the Denver DA’s Office issued a statement to the

media trying to explain away the unreliability inherent in T.S.’s delayed, post-dream
identification of Mr. Moses-EL—a man known to her from the neighborhood—by
asserting (for the first time) that she had been in a coma:
The victim knew Clarence Moses[-]El because he was
her neighbor and she was able to recognize him during the

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attack. Those who now argue that he was convicted based
solely on a dream are either unaware of the complete facts or
disregard them. The victim was severely beaten, suffered
multiple facial fractures, and was in a coma. It took some
time after the attack before the victim was able to give her
statement.
249.

This press release misrepresented the facts. There was no evidence that

T.S. was in a coma following the attack. To the contrary, many witnesses at the first trial
testified that they had spoken with her after the attack, both at her sister’s house and at
the hospital.
250.

The police officer who interviewed T.S. immediately after the attack

testified that she was able to speak to him and to provide details of what happened during
the sexual assault.
251.

According to the responding officer, T.S. told him:
-

that she had been sexually assaulted;

-

that she did not get a good look at the perpetrator because the lights
in the room were out;

-

that she had been with “L.C. and Earl” that night;

-

that her attacker was a black male with waved-back hair or slicked
back, wavy hair;

-

that L.C. and Earl had such a hairstyle;

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-

that she had gone to a friend’s house, come back home, come inside,
undressed, gotten on the couch, and at that point someone had
started sexually assaulting her;

-

that the perpetrator had put something around her neck and dragged
her upstairs; and

252.

that she was then sexually assaulted further.14

Additionally, T.S.’s sister, Ms. Cousins, testified that she spoke with T.S.

immediately after the attack and a couple of hours later when she visited her at the
hospital.
253.

T.S. testified that after she was attacked, she went to her sister’s house,

explained what had happened to her, and was then taken to the hospital in an ambulance.
254.

T.S. herself testified that it was only after her dream in the hospital—during

which she believed she had re-lived the attack—that she identified Mr. Moses-EL as her
assailant.
255.

The District Attorney Office’s factual misstatements were repeatedly

reported by the media.
256.

The December 18, 2015, statement from the Denver DA’s Office to the

media also included the following assertions:

14

Trial Tr. 04/05/88 pp. 106:13-113:21.
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-

What was presented as new evidence, resulting in the Court’s
decision to grant a new trial, was a confession that was not true and
was retracted.

-

The “new” evidence in this case was a “confession” by a mutual
acquaintance of the victim and Moses[-]El, a man named L.C.
Jackson. When he made his “confession,” his new claims were
investigated, L.C. claimed that he had consensual sex with the victim.
But his new details about having sex with her were implausible and
not consistent with the brutal beating that resulted in the serious
injuries she suffered. L.C. Jackson is serving prison time for two
convictions for sexual assault. In his statement to the District
Attorney’s investigator, he admitted he had lied and had made the
confession up. He said he had been told by the Innocence Project that
he couldn’t be charged in the matter because of the statute of
limitations, so he felt he could tell a few lies to help out Moses[-]El.

257.

This account is significantly misleading because of the information it

omitted. Mr. Jackson gave sworn testimony before the district court on July 30, 2015,
after having received legal advice from his own counsel. Mr. Jackson testified that he
had recanted to the prosecutor and the District Attorney Investigator because he felt
intimidated. He recounted how the District Attorney Investigator had introduced himself

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by explaining that he had previously worked for the Denver Police Department and had
arrested Mr. Jackson on a burglary case for which Mr. Jackson had served 8 years in
prison. Mr. Jackson testified before the Denver District Court at length that he had gone
to the victim’s home on the night she was attacked, that he had engaged in sexual
intercourse with her, and that he had repeatedly hit her in her head.
258.

The Denver DA’s Office’s dissemination of Mr. Jackson’s recantation

without explaining that under oath, before the district court, and with the protection of his
own counsel, he later retracted that recantation and reiterated his many inculpatory
admissions left the general public with the false impression that Mr. Jackson had recanted
at the evidentiary hearing before the district court.
259.

The District Attorney Office’s misleading account of Mr. Jackson’s

recantation was repeated in various news articles and on television for weeks after the
district court had vacated Mr. Moses-EL’s convictions and ordered a new trial.15

15

Keith Coffman, Denver man jailed 28 years free on bond after rape conviction tossed,
Yahoo! News, Dec. 22, 2015, http://news.yahoo.com/denver-man-jailed-28-years-freebond-rape-050216124.html; Rose Troup Buchanan, Clarence Moses-EL: After 28 years
inside, US man jailed for a rape he claims he never committed is finally freed,
Independent (UK), Dec. 23, 2015, http://www.independent.co.uk/news/world/
americas/clarence-moses-el-after-28-years-inside-us-man-jailed-for-a-rape-he-claims-henever-committed-is-a6784216.html; Josiah Hesse, Convicted of rape based on a dream,
man relishes freedom after 28 years, The Guardian, Dec. 24, 2015,
http://www.theguardian.com/us-news/2015/dec/24/clarence-moses-el-free-denver-rapecase.
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iii)

Defendant Kimbrough made false statements to Richard Schnibbe on
December 24, 2015.

260.

On December 24, 2015, an individual named Richard Schnibbe sent an

email to Defendant Morrissey heavily criticizing his mishandling of Mr. Moses-EL’s
case.
261.

Defendant Kimbrough wrote back to Mr. Schnibbe to transmit the District

Attorney’s public relations statement about this case. She further wrote, “This was not a
conviction based on a dream, it was based on evidence presented during a 4-day trial
including the defendant’s own testimony.”
262.

This was false. Mr. Moses-EL did not testify at his original trial.

iv)

Defendant Kimbrough made false statements to editors of The Denver Post
in response to their editorial urging the Denver DA’s Office to drop the
charges in this case.

263.

On December 27, 2015, The Denver Post published an editorial titled: “DA

should drop weak case against Clarence Moses-EL: Denver man served 28 years in
prison on a flimsy case.”
264.

Two days later, Ms. Kimbrough sent a multi-point rebuttal to the editors of

The Denver Post embedded in the text of their editorial. Her rebuttal included more false
statements.
265.

The editorial stated that “Immediately after the 1987 attack in Denver’s

Five Points Neighborhood, the victim gave police three possible names: ‘L.C., Earl and
Darnell.’” This information was correct. At trial, T.S. was asked, “Did you tell the

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policeman who did this to you?” and she replied, “When he asked me I said ‘L.C., Earl,
Darnell. I called three names.”
266.

Defendant Kimbrough responded misleadingly:
The victim did not remember talking to the police
immediately after the attack, and her sister testified at the trial
that in naming these three men the victim was not identifying
her attacker but was naming the men with whom she had
been with [sic] that evening.

267.

The Denver Post editorial further stated: “A couple of days later [the

victim] told police the identity of Moses-EL came to her in a dream.” Again, this
information was correct. The victim testified at trial that she did not identify Mr.
Moses-EL until a day or a day and a half after the attack. She testified that although she
had initially identified L.C., Darnell, and Earl, she then had a dream in the hospital in
which she relived the attack, and that is when she supposedly realized that her attacker
was Mr. Moses-EL.
268.

Defendant Kimbrough responded with additional false statements:
Moses[-]El’s identity did not come to her in a dream. She
knew him as a neighbor, named “Bubbles.” The victim was
in a coma following the attack, and she re-lived the attack as
nightmares during the time she was in that coma. When the
police were finally allowed to talk with her, she identified her
neighbor “Bubbles” as the attacker.

269.

Again, the victim was not in a coma. And shortly after the attack, and more

than a day before her nightmare, she recounted to a police officer the details of what had

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happened to her, including that she had not gotten a good look at her assailant because
the lights were out.
270.

The Denver Post editorial further stated:
The case seemed stalled until 2006 when the name “L.C.”
reappeared. L.C. Jackson was a neighbor of Moses-EL. In
2006, authorities matched Jackson’s DNA to a sexual assault
that occurred in 1992, not far from where the 1987 rape
occurred.

271.

Defendant Kimbrough responded with more false statements:
The case seem [sic] stalled? The case went to trial, and after 4
days of testimony a jury of 12 Denver citizens who heard all
of the evidence, including the testimony of the victim,
Moses[-EL], and also L.C. Jackson, found him guilty.
L.C. Jackson was a neighbor and friend of the victim as well.
It was years later that he was convicted of two unrelated
separate sexual assaults.

272.

The jury that convicted Mr. Moses-EL did not hear him testify. Nor did

they hear “all of the evidence.” In 1988 when Mr. Moses-EL was tried, L.C. Jackson had
not yet committed the two sexual assaults in 1992. And of course, the jury at Mr.
Moses-EL’s trial in 1988 did not hear Mr. Jackson admit that on the night T.S. was
attacked, he had followed her home in the middle of the night, had sexual intercourse
with her, and repeatedly punched her in the face.

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v)

Defendant Kimbrough made false statements to Carol McKinley of
Al-Jazeera America.

273.

On December 29, 2015, Defendant Kimbrough forwarded to Carol

McKinley, a reporter for Al Jazeera America, Defendant Kimbrough’s responses to The
Denver Post editorial calling for the charges to be dropped, containing all of these false
and misleading statements.
Q.

Defendant Benedetti Intentionally Delays Disclosing to Mr. Moses-EL’s
Attorneys a March 2015 Letter from Mr. Jackson to the Victim in the Case,
Instead Prioritizing Serving as A Go-Between for A Convicted Rapist and
One of His Victims.
274.

On March 15, 2016, Mr. Jackson wrote a letter to T.S. asking her to speak

with him. Mr. Jackson sent this letter to T.S. care of the Denver DA’s Office. The
Denver DA’s Office received the letter on March 21, 2016. In the letter, Mr. Jackson
says he is sorry for what has happened and asks for T.S.’s contact information.
275.

The Denver DA’s Office proceeded to deliver the letter to the victim.

According to Defendant Benedetti, Mr. Jackson indicated to Defendant Benedetti at one
of their visits with him that he would like to contact T.S. The Denver DA’s office then
relayed his request to T.S. She told the Denver DA’s Office that she did not want Mr.
Jackson to have her home address.
276.

Mr. Moses-EL’s defense team was not made aware of this letter or the

Denver DA’s Office’s delivery of it to T.S. until more than three weeks later, on April 12,
2016. When confronted about this at a pretrial conference, on April 13, 2016, Defendant

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Benedetti argued that she did not believe she had any obligation to even disclose this
letter to the defense.
277.

The Court disagreed with Defendant Benedetti that she was not required to

disclose this letter to Mr. Moses-EL’s counsel16 and reminded her of the prosecution’s
obligation to disclose such material as soon as practicable.
278.

On April 16, 2016, Mr. Jackson was able to contact T.S. through a phone

provided by the Denver DA’s Office at the behest of Defendant Benedetti. Given that
Mr. Jackson was incarcerated at the time, these calls were recorded.
279.

Mr. Jackson told T.S. that the DA’s office had informed him that she was

very mad at him. Mr. Jackson told T.S. “that’s why I asked for your information so that
we could talk because I did not know what was being said or what was being done, so I
was confused about them telling me that you were mad at me. I was like I need to talk to
her then and get her information, so I can put her on my phone list.”
280.

Mr. Jackson and T.S. talked for more than 40 minutes and shared

information regarding their recollections of the night of the crime and their conversations
with both the prosecution and the defense.
281.

On May 22, 2016, Defendant Benedetti disclosed to Mr. Moses-EL’s

defense team a March 2016 letter from Mr. Jackson to T.S. Defendant Benedetti did not
16

Rule 16(I)(a)(1)(i) of the Colorado Rules of Criminal Procedure provides in part: “The
prosecuting attorney shall make available to the defense the following material and
information in their possession and control … Police, arrests and crime or offense
reports, including statements of all witnesses.”
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provide requested documentation describing the Denver DA’s Office’s provision of a cell
phone to T.S. for the purpose of accepting prison calls from Mr. Jackson.
R.

Defendant Benedetti Intentionally Refuses to Disclose Reports Made to the
Denver Police Department by Another Girl who had been Sexually Assaulted
by Mr. Jackson.
282.

Within a few weeks before a March 24, 2016 motions hearing in Mr.

Moses-EL’s case, another sexual assault victim of Mr. Jackson came forward to Mr.
Moses-EL’s defense counsel. Mr. Jackson had sexually abused this victim, the young
daughter of a woman he had been dating, in her own home when she was still in
elementary school. The sexual assaults involved digital penetration of the girl’s vagina
and oral sexual abuse. When she was later a teenager in approximately the summer of
2003, this victim thought she saw Mr. Jackson, and she and her mother then reported Mr.
Jackson’s sexual abuse in person at the Denver Police Department. No such reports or
information have ever been disclosed to Mr. Moses-EL’s defense team. The defense
moved for additional discovery of these reports as well as any other reports that Mr.
Jackson had committed sexual assault, physical assault, burglary, or theft.
283.

At the March 24, 2016 motions hearing, the Denver DA’s Office revealed

that it had not even asked the Denver Police Department to turn over the reports from this
victim and her mother to the District Attorney’s Office for prosecutorial review.

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S.

Defendants Benedetti and Carroll Manufacture Testimony to Create
Probable Cause Against Mr. Moses-EL.
i)

Defendants Benedetti and Carroll Help Floyd Wesley Howard Remember
T.S.’s Initial Identification of Mr. Moses-EL.

284.

Floyd Wesley Howard was the boyfriend of T.S.’s sister, Ms. Cousins, at

the time of the assault on T.S. He was at Ms. Cousins’s home, sitting on the outside
porch, when T.S. came for help that night, beaten beyond recognition. Soon after T.S.
went into Ms. Cousin’s home, Mr. Howard he went looking around to see if he could see
anyone.
285.

During the initial investigation of the attack on T.S. in 1987, Mr. Howard

never claimed that T.S. made any identification at Ms. Cousin’s home or before T.S. was
hospitalized.
286.

The Denver DA’s Office did not call Mr. Howard to testify at Mr.

Moses-EL’s first trial in 1988.
287.

During an interview with a defense investigator in 2007, Mr. Howard did

not say anything about hearing T.S. identify the perpetrator of the attack.
288.

On May 20, 2015, more than 28 years after the attack on T.S., Defendant

Carroll called Mr. Howard. According to Defendant Carroll’s report about the
conversation, although Mr. Howard said he did not recall a lot about the incident, he
believed that T.S. had said she was assaulted by “Bubba,” who he knew to be the same
person who was sent to prison for the assault.

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289.

When Mr. Howard spoke with a defense investigator, he said his

confidence in his memory of the identification was a score of 1 out of 10, with 1 being
the least sure and 10 being the most sure. Later during the interview, he told the defense
investigator that he actually may have heard this thing about “Bubble” sometime later
from neighborhood gossip, or from T.S. when she returned from the hospital, not on the
night of the assault.
290.

On August 26, 2016, Defendants Benedetti and Carroll spoke with Mr.

Howard again. According to Defendant Carroll’s report, Mr. Howard had previously
been “racking his brain” to remember the night, but on the call with Defendants Benedetti
and Carroll, he recalled that T.S. had called out the name of “Bubba” as the one who had
assaulted her.
291.

After having conversations with Defendants Benedetti and Carroll, Mr.

Howard was able to recall T.S.’s identification of Mr. Moses-EL (a/k/a “Bubbles”) with
much more clarity at the second trial of Mr. Moses-EL—more than 28 years after the
assault.
292.

Mr. Howard was called by the prosecution at Mr. Moses-EL’s second trial

to testify that T.S. had identified Mr. Moses-EL on the night of the assault.
293.

Mr. Howard testified that this identification was made to Ms. Cousins

inside Ms. Cousins’s home, shortly after the attack (before T.S. was taken to the
hospital).

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294.

The evolution of Mr. Howard’s memory was discussed during his cross-

examination at the second trial:
Q. Your memory a few months ago was different, right?
A. Yes.
Q. Your memory about this is stronger today, you would say,
right?
A. Yes. What I call talking to the universe.
Q. Okay. And in talking to the universe, you’ve also been
talking to the DA, right?
A. Right.
Q. And after talking to the universe and talking to the DA,
your memory now is a 10 out of 10 on hearing [T.S.] say it
was “Bubble”?
A. Yes.
Q. Whereas before it was a 1 out of 10, right?
A. Yes.17
295.

T.S. has never claimed that she identified Mr. Moses-EL to Ms. Cousins or

Mr. Howard before she went to the hospital. To the contrary, she has explained that she
was, in her view, unable to identify Mr. Moses-EL until after her dream in the hospital.
296.

Ms. Cousins also did not testify that T.S. identified Mr. Moses-EL to either

her or Mr. Howard before T.S. was taken to the hospital.

17

Tr. 11/08/16, p. 128:8-22.
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ii)
297.

Defendant Benedetti Requires Mr. Moses-EL’s then-wife, Stephanie Burke,
to Testify as a Witness for the Prosecution at Mr. Moses-EL’s Retrial.
In her continued attempt to manufacture false evidence and avoid Mr.

Moses-EL’s ultimate exoneration, Defendant Benedetti decided she would call Mr.
Moses-EL’s then-wife, Stephanie Burke, to testify as a witness for the prosecution at the
retrial.
298.

Ms. Burke’s attorneys asserted a testimonial privilege on her behalf.

299.

Despite the fact that Defendant Benedetti would not immunize Mr. Jackson

to allow him to testify without fear of additional criminal liability at Mr. Moses-EL’s
evidentiary hearing or retrial, Defendant Benedetti did provide Ms. Burke with immunity
in order to force her to testify for the prosecution and against Ms. Burke’s wishes.
300.

Unlike Mr. Jackson, whose testimony would exculpate Mr. Moses-EL, Ms.

Burke was called to testify for the prosecution about an argument she had with Mr.
Moses-EL the night T.S. was attacked.
301.

Defendant Benedetti also tried to use Ms. Burke’s testimony to support

Defendant Benedetti’s fabricated theory that Ms. Burke had directed Mr. Moses-EL to
commit crimes against T.S. on the night she was attacked.
302.

Neither Defendant Benedetti nor anyone else in the Denver DA’s Office

from 1987 through 2016 ever believed that Ms. Burke was truly involved in the crimes
against T.S., because they never charged her for aiding and abetting or being an
accessory to such crimes.

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303.

Defendant Benedetti’s differential approach to granting immunity to

witnesses at Mr. Moses-EL’s retrial demonstrates that she pursued a win-at-all-costs
approach to Mr. Moses-El’s criminal case, rather than fulfilling her duty as a prosecutor
to seek truth and justice.
T.

Lack of Probable Cause for the Second Trial.
304.

As late as February 2016, Defendant Benedetti and the Denver DA’s Office

were not sure whether they would re-try Mr. Moses-EL for the attack on T.S.
305.

There was even less probable cause for the second prosecution of Mr.

Moses-EL.
306.

There was still no physical evidence tying Mr. Moses-EL to the crime.

307.

T.S. had identified three other men multiple times before she ever identified

Mr. Moses-EL.
308.

Mr. Moses-EL did not fit the initial physical description given by T.S. She

said that her assailant had hair that was slicked back with grease. Mr. Moses-EL had a
short buzz-cut, and his hair was not long enough to be slicked back.
309.

Also, it was very dark in T.S.’s home, she had extremely poor eyesight, she

had taken her glasses off, and she was beaten in the head and face during the attack. She
initially told the responding officer she had not gotten a good look at the perpetrator.
310.

The only evidence tying Mr. Moses-EL to the crime was the dream-induced

identification by T.S. more than a day after the attack, when she was in the hospital on
prescribed narcotics.
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311.

Due to this remarkable collection of circumstances demonstrating the

unreliability of T.S.’s identification of Mr. Moses-EL, the defense disclosed to the
Denver DA’s Office and Defendant Benedetti the expert opinions of Daniel Reisberg,
PhD, regarding the topic of memory and eyewitness identifications.
312.

Dr. Reisberg would later testify at the second trial to multiple factors that

demonstrated the high degree of unreliability of T.S.’s identification of Mr. Moses-EL:
[T]he circumstances here, viewed through the lens of science,
say there are so many—call them red flags, call them danger
signals, that as a scientist, I would never want to rely on this
memory because the danger that it might be wrong is very,
very high.18
313.

Dr. Reisberg opined that, of the more than one thousand eyewitness

identifications he has reviewed, T.S.’s identification of Mr. Moses-EL was one of the
very worst for risk of false identification.
314.

T.S. had a deep dislike of Mr. Moses-EL’s girlfriend which had resulted in

physical and verbal altercations between them.
315.

T.S. even went so far as to add to her story during Mr. Moses-EL’s

preliminary hearing, claiming that she had seen Mr. Moses-EL’s girlfriend, Ms. Burke,
acting as a lookout for Mr. Moses-EL during the attack. Likely realizing the
untrustworthiness of T.S.’s evolving story, prosecutors never charged Ms. Burke for
aiding and abetting or accessory.

18

Tr. 11/08/16, pp. 113:22-114:3.)
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316.

Defendants knew of the lack of physical evidence tying Mr. Moses-EL to

the crime and the unreliability of T.S.’s identification of Mr. Moses-EL, but nonetheless
caused him to be arrested and prosecuted.
317.

One of the men identified by the victim shortly after the attack had hair

slicked back with grease and was gone from his girlfriend’s home at the time of the
attack, having implausibly claimed he was going to his grandmother’s house in the
middle of the early morning hours. Furthermore, during the investigation for Mr. MosesEL’s second trial, Defendants possessed a significant amount of information about the
similar crimes committed by Mr. Jackson.
318.

In addition to the sexual assaults he had been accused of before 1987,

Defendants Morrissey, Benedetti, and Carroll knew that Mr. Jackson had also committed
a very similar crime five years after the assault of T.S. The similarities of the crimes are
noted below:
1987 Assaults in the Case for Which L.C. Jackson’s 1992 Assaults of
Mr. Moses-EL Faced Retrial
Mother and Daughter
Victim lived two doors down in same
low-income housing complex from
L.C. Jackson’s then-girlfriend, with
whom he was staying.

Victims lived very close and in same
low-incoming housing complex as
L.C. Jackson’s then-girlfriend, with
whom he was staying.

L.C. Jackson was familiar with the
floor plan of the victim’s home.

L.C. Jackson was familiar with the
floor plan of the victims’ home.

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L.C. Jackson was acquainted with the
victim, and knew that she was a
woman living with young children.

L.C. Jackson was acquainted with the
victims, and knew the adult victim
was a woman living with young
children.

Perpetrator preyed upon the victim
while her boyfriend was out-of-state.

L.C. Jackson preyed upon the victims
while their husband/father was in jail.

Attack occurred in the early morning
hours (around 2:30 a.m.).

Attack occurred in the early morning
hours (around 2:30 a.m.).

Perpetrator unlawfully entered
victim’s home through a window.

L.C. Jackson unlawfully entered
victims’ home through a window.

Perpetrator raped the victim while her
infant and toddler were in the same
room.

L.C. Jackson raped the child victim
while her two-year old sibling was in
the same room.

Perpetrator sexually assaulted the
victim in her upstairs bedroom.

L.C. Jackson sexually assaulted the
victims in their upstairs bedrooms.

Perpetrator used a “do-rag” to cover
the victim’s face during the sexual
assault.

L.C. Jackson used a pillowcase to
cover the adult victim’s face during
the sexual assault.

Perpetrator sexually assaulted the
victim in multiple manners (vaginal,
anal, and digital).

L.C. Jackson sexually assaulted the
adult victim in multiple manners
(vaginal and oral).

Sexual assault begins vaginally.

Sexual assaults begin vaginally.

Perpetrator told victim to “shut up”
when she expressed concern for her
children.

L.C. Jackson told adult victim to
“shut up” when she expressed concern
for her children.

Perpetrator forced victim onto her
bed.

L.C. Jackson pushed each victim onto
their respective bed.

Perpetrator choked and squeezed
victim’s neck during the attack.

L.C. Jackson applied pressure to
victims’ necks during the attacks.
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Perpetrator inflicted injuries to the
victim’s face, neck, and head.

L.C. Jackson inflicted injuries to the
victims’ head and neck areas.

Perpetrator forcefully relocated the
victim from one floor of her house to
another via a staircase.

L.C. Jackson forcefully relocated the
adult victim from one floor of her
house to another via a staircase.

All lights in the home were off during
the sexual assault.

All lights in the home were off during
the sexual assaults.

Perpetrator rifled through the victim’s
wallet and left contents scattered on
the floor.

L.C. Jackson rifled through the
contents of the adult victim’s purse on
the floor and stole her diamond
wedding ring and other jewelry.

L.C. Jackson was drinking malt liquor L.C. Jackson reeked of malt liquor
the night the victim was attacked.
during the rape of the adult victim.
319.

In determining whether to force Mr. Moses-EL to go through a second trial,

Defendants Morrissey, Benedetti, and Carroll also knew that Mr. Jackson had been
charged with burglarizing his aunt’s house, and that he was accused of having sexually
assaulted another young girl in Denver.
320.

Defendants knew that Mr. Jackson was gone from his girlfriend Pamela

Sanders’s home during the time period when T.S. was being sexually assaulted and
beaten two doors down from Ms. Sanders’s home.
321.

Most importantly, Defendants were also aware that Mr. Jackson had

admitted he had sexual intercourse with T.S. in her home and repeatedly hit her in the
face at the time she said she was attacked.

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322.

However, Defendants and the Denver DA’s Office had significantly more

to lose at this juncture. If they were to concede that Mr. Moses-EL was innocent, then
they would have been responsible for the nearly three decades he spent in prison—as well
as for the crimes Mr. Jackson committed while he was allowed to remain at liberty.
323.

Recognizing this dynamic and the lack of probable cause to bring Mr.

Moses-EL to trial in 2016, Defendant Benedetti tried to resolve the case by dangling the
possibility of an extraordinarily lenient plea offer to Mr. Moses-EL. She inquired of
defense counsel whether Mr. Moses-EL would be interested in resolving the case with an
Alford plea and a stipulation to a sentence of time served.
324.

An Alford plea is when a criminal defendant does not admit any

wrongdoing but admits that the prosecution has enough evidence to convict him. For a
criminal defendant who has actually committed the crimes charged, a plea deal of an
Alford plea with a stipulated sentence of time served is universally recognized as an
extremely favorable deal, because it ensures that the defendant will never return to
prison.
325.

Mr. Moses-EL, through counsel, rejected the prospect of any such offer,

because he knew he was innocent.
326.

Unwilling to dismiss the charges despite the lack of probable cause,

Defendants Morrissey and Benedetti decided to proceed to trial against Mr. Moses-EL for
a second time for the assault of T.S.

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U.

Mr. Moses-EL’s Acquittal.
327.

Mr. Moses-EL’s second trial began on November 7, 2016.

328.

The judge in Mr. Moses-EL’s case ruled that the jury shouldn’t hear

evidence about events that took place after the original trial in 1988, including the
destruction of the DNA evidence by the Denver Police Department or the other ways the
Defendants poorly investigated the case. The jury was also not allowed to be told Mr.
Moses-EL already served 28 years in prison on this case or that Detective Huff said in a
sworn statement that he always had reservations about the case and suggested that the
victim may have identified Mr. Moses-EL because of a personal vendetta against his
girlfriend. And the jury was not allowed to hear about the similarities of Mr. Jackson’s
long list of known and suspected involvement in other sex assaults.
329.

Despite these extreme disadvantages, on November 14, 2016, a jury of

eight women and four men found Mr. Moses-EL not guilty on all charges.
330.

Mr. Moses-EL walked out of Denver’s Lindsey-Flanigan Courthouse a free

man to a crowd of supporters:

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V.

Mr. Moses-EL’s Personal, Psychological, and Familial Injuries.
331.

Mr. Moses-EL spent more than 28 years in prison for crimes he did not

commit.
332.

He spent another year under conditions of bond awaiting another traumatic

trial experience where his liberty would again be on the line, and where he knew from his
experience in the 1988 trial that his innocence could not guarantee protection from
wrongful conviction.
333.

Imprisoned at the age of 32 and released at age 60, he was deprived of

almost his entire adult life. He must now attempt to make a life for himself outside of
prison without the benefit of 28 years of life experiences, which normally equip adults for
that task.
334.

While he was imprisoned, Mr. Moses-EL missed the lives, and deaths, of

his brothers, Robert and James. His youngest sister Joane and his oldest sister Maggie
lived their last days and died while Mr. Moses-EL was in prison. And Mr. Moses-EL’s
best friend, most avid supporter, and mother, Elouise, passed away while Mr. Moses-EL
was locked in a prison cell—not living to know that her son would one day walk out of
prison and have his innocence vindicated.
335.

Mr. Moses-EL, who was first arrested when his daughter Tyice was four

years old and his son Anthony was three, was imprisoned for his children’s first days of
school, their first dances, their first jobs, and other important personal milestones and

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celebrations. Mr. Moses-EL was forced to miss the births and infancies of his twelve
grandchildren.
336.

Additionally, the emotional pain and suffering caused by losing 28 years in

the prime of life has been substantial. During his wrongful incarceration, Mr. Moses-EL
was stripped of the various pleasures of basic human experience, from the simplest to the
most important, which all free people enjoy as a matter of right.
337.

He missed out on the ability to share holidays, births, funerals, and other

life events with loved ones, the opportunity to pursue a career, and the fundamental
freedom to live one’s life as an autonomous human being.
338.

As a result of the foregoing, Mr. Moses-EL has suffered tremendous

damage, including physical harm and injury, severe emotional distress and anguish, and
pecuniary damages, all proximately caused by Defendants’ misconduct.
V.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Malicious Prosecution
Violation of the Fourth & Fourteenth Amendments
(against Defendants Morrissey, Benedetti, Kimbrough, Carroll,
Brown-Dressel, and Huff)
339.

Mr. Moses-EL incorporates by reference the foregoing paragraphs of this

Complaint as if set forth fully herein.
340.

Mr. Moses-EL brings this claim against Defendants Morrissey, Benedetti,

Kimbrough, Carroll, Brown-Dressel, and Huff.

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341.

Defendants were acting under the color of state law at all times relevant to

this Complaint.
342.

Probable cause did not exist to charge Mr. Moses-EL in either his 1988 or

2016 criminal prosecutions for the sexual assault of T.S.
343.

Twenty-eight years of litigation and advocacy resulted in a favorable

termination of Mr. Moses-EL’s criminal case when he was acquitted of all charges in
2016.
344.

By spreading false information to state legislators in 2008 about the

strength of Mr. Moses-EL’s case and thereby entrenching his office in the subsequent
prosecution of Mr. Moses-EL despite the lack of probable cause, Defendant Morrissey,
acting under his authority as District Attorney, caused Mr. Moses-EL to be subject to a
continued illegitimate prosecution, forced him to go through a second trial, and deprived
him of due process of law in violation of the Fourteenth Amendment to the United States
Constitution. In his legislative advocacy and correspondence with legislators, Defendant
Morrissey was not acting in his prosecutorial capacity.
345.

Defendant Morrissey caused Mr. Moses-EL’s prosecution with motives

other than a desire to bring an offender to justice—specifically, based on a political
motive—as shown from the want of probable cause, and the knowing and intentional, or
with reckless disregard for the truth, spreading of false information concerning Mr.
Moses-EL’s case and guilt.

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346.

By intimidating a serial rapist who was initially identified by the victim as

her assailant and ultimately confessed to the crime of his own volition into a flimsy
recantation, and by manufacturing witness testimony to attempt to create probable cause,
Defendants Benedetti and Carroll caused Mr. Moses-EL to be subject to a second
illegitimate prosecution and deprived him of due process of law in violation of the
Fourteenth Amendment to the United States Constitution. These unlawful acts occurred
during the Denver DA’s investigation into Mr. Moses-EL, and Defendant Benedetti was
not acting in her prosecutorial capacity.
347.

Defendants Benedetti and Carroll caused Mr. Moses-EL’s prosecution with

motives other than a desire to bring an offender to justice as shown from the want of
probable cause, and by their manufacturing of evidence knowingly and intentionally, or
with reckless disregard for the truth.
348.

By repeatedly disseminating to the media and the public false information

about the strength of the case against Mr. Moses-EL, even when she was confronted with
the falsity of her claims, and thereby further entrenching the Denver DA’s Office in its
prosecution of Mr. Moses-EL in 2016 despite the lack of probable cause, Defendant
Kimbrough caused Mr. Moses-EL to be subject to a second illegitimate prosecution and
deprived him of due process of law in violation of the Fourteenth Amendment to the
United States Constitution.

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349.

By using her position as an expert in forensic serology to: (i) knowingly

withhold information from and mislead prosecutors, Mr. Moses-EL’s defense attorneys,
and the jury about the implications of the results of the serology testing done on the
biological evidence in Mr. Moses-EL’s case; and (ii) deliberately refusing to seek DNA
testing of the evidence collected from T.S. before the 1988 trial despite her knowledge of
its availability and potential to conclusively determine whether Mr. Moses-EL was the
true perpetrator, Defendant Brown-Dressel caused Mr. Moses-EL to be subject to his
1987-1988 prosecution and trial and deprived him of due process of law in violation of
the Fourteenth Amendment to the United States Constitution.
350.

By encouraging the first prosecution of Mr. Moses-EL in 1988 despite the

fact that he personally knew of the blatant unreliability of the only evidence against Mr.
Moses-EL—the late, dream-induced identification by a victim with ulterior motives—
and by failing to investigate an obvious alternate suspect who had a history of sexual
assault, Defendant Huff caused Mr. Moses-EL to be subject to his 1987-1988 prosecution
and trial, and deprived him of due process of law in violation of the Fourteenth
Amendment to the United States Constitution.
351.

As a result of Defendants’ unlawful conduct, Mr. Moses-EL was

maliciously prosecuted and tried twice for crimes he did not commit and was imprisoned
for 28 years based on the first conviction. Mr. Moses-EL has suffered emotional distress,
psychological injury, and destruction of family ties based on the malicious prosecution of

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the Defendants. He continues to suffer physical and psychological harm resulting from
the years of Defendants’ efforts to wrongfully prosecute and incarcerate crimes he did not
commit.
SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Destruction of Exculpatory Evidence
Violation of the Fourteenth Amendment
(against Defendants Whitley, Huff, and Perry)
352.

Mr. Moses-EL incorporates by reference the foregoing paragraphs of

this Complaint as if set forth fully herein.
353.

Mr. Moses-EL brings this claim against Defendants Whitley, Huff, and

Perry.
354.

Defendants Whitley, Huff, and Perry were acting under color of state law in

their actions and inactions which occurred at all times relevant to this action.
355.

Defendants Whitley, Huff, and Perry acting within scope of their

employment recklessly, knowingly, intentionally, willfully and wantonly destroyed failed
to register, store, test, maintain, and control exculpatory evidence that they knew would
have vitiated probable cause to arrest, prosecute, and imprison Mr. Moses-EL.
356.

While Mr. Moses-EL was incarcerated (and/or while any conviction against

him remained on file), Defendants Whitley, Huff, and Perry had a constitutional
obligation to register, store, preserve, maintain, and test exculpatory evidence relating to
the crimes of which Mr. Moses-EL was wrongfully charged and convicted.

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357.

The exculpatory value of the evidence was apparent to Defendants Whitley,

Huff, and Perry. In the alternative, the evidence was potentially exculpatory, and these
Defendants knew that.
358.

Nonetheless, these three Defendants acted in bad faith in destroying the

rape kit and clothing collected from T.S. and her home.
359.

If the aforementioned evidence had been properly registered, stored,

preserved, maintained, and tested by Defendants Whitley, Huff, and Perry, Mr.
Moses-EL would not have been wrongfully incarcerated and then re-tried for the same
crimes.
360.

The misconduct described in this Count was objectively unreasonable

and was undertaken intentionally with willful indifference to Mr. Moses-EL’s
constitutional rights.
361.

The misconduct described in this Count was undertaken by employees

and agents of the City of Denver, including but not limited to the Defendants Whitley,
Huff, and Perry, pursuant to the policies and practices of the City of Denver Police
Department more fully described above. This includes but is not limited to destroying
evidence to prevent Mr. Moses-EL from proving his innocence.
362.

As a direct and proximate result of this misconduct, Mr. Moses-EL’s

constitutional rights were violated, and he suffered physical harm and injury, severe
emotional distress and anguish, and pecuniary damages, as more fully alleged above.

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THIRD CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Manufacturing False Inculpatory Evidence
Violation of the Fourteenth Amendment
(against Defendants Benedetti and Carroll)
363.

Mr. Moses-EL incorporates by reference the foregoing paragraphs of this

Complaint as if set forth fully herein.
364.

Mr. Moses-EL brings this claim against Defendants Benedetti and Carroll.

365.

Defendants were acting under the color of state law at all times relevant to

this Complaint.
366.

Defendants Benedetti and Carroll manufactured false inculpatory evidence

against Mr. Moses-EL by recklessly, knowingly, intentionally, willfully, and wantonly
intimidating L.C. Jackson into giving a false recantation of his true admissions of his
involvement in the crimes against T.S.
367.

Defendants Benedetti and Carroll did this by threatening Mr. Jackson that

they could file further charges against him and letting him know exactly what they
wanted him to provide—a recantation of his previous admissions of involvement in the
crimes for which Mr. Moses-EL sat in prison.
368.

In a desperate attempt to try to prove Mr. Moses-EL guilty at his second

trial, Defendants recklessly, willfully, and wantonly persuaded Mr. Howard—the
boyfriend of T.S.’s sister, Ms. Cousins, at the time of the assault—to remember for the
first time, 28 years after the incident, that immediately after the attack, T.S. had

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supposedly said to Ms. Cousins inside Ms. Cousins’s home that the person who had
assaulted her was “Bubba” (Mr. Moses-EL).
369.

Although when speaking to a defense investigator, Mr. Howard admitted

that his memory about this matter was unreliable and weak (a 1 on a scale of 1 to 10) and
that he may have heard something about “Bubbles” from neighborhood gossip instead of
from T.S., after speaking again with Defendants Benedetti and Carroll, Mr. Howard
claimed to confidently recall (28 years after the fact) that T.S. had identified Mr.
Moses-EL to Ms. Cousins immediately after the attack at Ms. Cousins’s home.
370.

This memory of Mr. Howard’s was inconsistent with—and contradicted

by—the accounts of both T.S. and Ms. Cousins.
371.

Defendants Benedetti and Carroll knowingly and intentionally used Mr.

Howard’s unreliable testimony in order to prosecute and attempt to wrongfully convict
Mr. Moses-EL for the second time.
372.

In a further attempt to ensure Mr. Moses-EL would be found guilty again,

Defendant Benedetti willfully and wantonly gave Ms. Burke, then Mr. Moses-EL’s wife,
immunity for her testimony for the sole purpose of fabricating false inculpatory evidence
that Ms. Burke had supposedly directed Mr. Moses-EL to commit crimes against T.S. on
the night she was attacked.

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373.

The acts or omissions of Defendants Benedetti and Carroll were the legal

and proximate cause of Mr. Moses-EL’s unconstitutional arrest, prosecution, conviction,
and confinement, causing his injuries alleged herein.
374.

As a direct and proximate result of this misconduct, Mr. Moses-EL’s

constitutional rights were violated, and he suffered physical harm and injury, severe
emotional distress and anguish, and pecuniary damages, as more fully alleged above.
FOURTH CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Mishandling of Evidence
Violation of the Fourteenth Amendment
(against the City and County of Denver)

375.

Mr. Moses-EL incorporates by reference the foregoing paragraphs of this

Complaint as if set forth fully herein.
376.

Mr. Moses-EL brings this claim against Defendant City and County of

Denver.
377.

The Denver Police Department is a subdivision of Defendant City and

County of Denver.
378.

Municipalities and their subdivisions may be held liable to an individual if

they enforce a policy or custom that causes the deprivation of individual’s constitutional
rights.
379.

Municipal liability may be based upon:
i. A formal promulgated policy;
ii. A well settled custom or practice;

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iii. A final decision by a municipal policymaker; or
iv. Deliberately indifferent training or supervision.
380.

Defendant the City and County of Denver, by and through its final

policymakers, maintained the following unconstitutional custom, decision, policy, and/or
indifferent employee training or supervision practices that allowed for various
constitutional violations:
i.

Denver Police Department personnel, through well-settled practices
and a lack of formal policies, systemically and recklessly mishandled,
destroyed, or lost evidence, to further their personal goals of obtaining
and sustaining convictions;

ii.

Denver Police Department personnel, through well-settled practices
and a lack of formal policies, systematically and recklessly failed to
communicate with the Denver DA’s Office to ensure the proper
preservation of evidence under their custody and control;

iii.

The Denver Police Department exhibited deliberately indifferent
training and/or supervision of personnel in its Forensic Laboratory by
failing to establish any standard operating procedures or formal
scientific analytical methods for serological procedures undertaken at
the time relevant to this Complaint;

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iv.

The Denver Police Department—through a final, fateful decision by
Defendant Huff, acting at that moment as a municipal policymaker—
caused the biological evidence in Mr. Moses-EL’s case to be
completely destroyed.

381.

Defendant City and County of Denver’s unconstitutional customs,

decisions, policies and/or indifferent employee training or supervision practices were: (i)
deliberately or recklessly indifferent to the repeated destruction and/or loss of material
criminal evidence; (ii) deliberately or recklessly indifferent to a criminal defendant’s
constitutional rights; and (iii) deliberately or recklessly indifferent to whether innocent
people were being wrongfully convicted of crimes they had not committed.
382.

The City and County of Denver’s municipality liability here is premised

upon among other things, its failure to adopt proper and reasonable policies and practices
in the face of an obvious need to do so.
383.

As a direct and proximate result of the City and County of Denver’s

unconstitutional customs, decisions, policies, and/or indifferent employee training or
supervision practices, Mr. Moses-EL was wrongfully convicted and imprisoned for more
than 28 years. During these events, Mr. Moses-EL endured substantial physical,
emotional, and pecuniary injuries.

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FIFTH CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Conspiracy to Violate Mr. Moses-EL’s Civil Rights
Violation of the Fourth and Fourteenth Amendments
(against Defendants Morrissey, Benedetti, Kimbrough, and Carroll)
384.

Mr. Moses-EL incorporates by reference the foregoing paragraphs of this

Complaint as if set forth fully herein.
385.

Mr. Moses-EL brings this claim against Defendants Morrissey, Benedetti,

Kimbrough, and Carroll.
386.

Defendants were acting under the color of state law at all times relevant to

this Complaint.
387.

Defendants Morrissey, Benedetti, Kimbrough, and Carroll recklessly,

knowingly, intentionally, willfully, and wantonly conspired with one another, and others,
to deprive Mr. Moses-EL of his rights under the Fourth and Fourteenth Amendments to
the United States Constitution. By prosecuting and aiding the prosecution of Mr.
Moses-EL despite knowing that the great weight of evidence supported his innocence,
these Defendants attempted to cover up the Denver Police Department’s and Denver
DA’s Office’s botched investigation and intentional destruction of exculpatory evidence,
which had resulted in the multi-decade imprisonment of an innocent man while allowing
a serial rapist to remain at liberty to continue to victimize Denver women and girls.
388.

The Defendants reached an agreement amongst themselves to use their

positions of authority and influence to spread lies about the 1987 crime and the strength
of the evidence against Mr. Moses-EL, and to prosecute him through any means possible

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to cover up the egregious injustice that had been perpetrated against Mr. Moses-EL, and
to thereby deprive him of his constitutional rights, as illustrated in the systematic and
orchestrated deprivations spelled out in the various paragraphs of this Complaint.
389.

Each of the co-conspirators committed overt acts and was an otherwise

willful participant in joint activity.
390.

As a direct and proximate result of the illicit agreement referenced above,

Mr. Moses-EL’s constitutional rights were violated, and he suffered physical harm and
injury, severe emotional distress and anguish, and pecuniary damages, as more fully
alleged above.
SIXTH CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Fundamental Unfairness of
the Prosecutions of Mr. Moses-EL
Violation of the Fourteenth Amendment-Procedural and Substantive Due Process
(against Defendants Morrissey, Benedetti, Whitley, Kimbrough, Carroll, BrownDressel, Huff, and Perry)
391.

Mr. Moses-EL incorporates by reference the foregoing paragraphs of this

Complaint as if set forth fully herein.
392.

Mr. Moses-EL brings this claim against Defendants Morrissey, Benedetti,

Whitley, Kimbrough, Carroll, Brown-Dressel, Huff, and Perry.
393.

Defendants were acting under the color of state law at all times relevant to

this Complaint.

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394.

Mr. Moses-EL has a protected liberty interest in freedom from prosecution,

bond conditions, and incarceration by the State, except upon due process that complies
with all constitutional requirements.
395.

By engaging in one or more of the following acts, each Defendant, as

detailed above and acting recklessly, knowingly, intentionally, willfully, and wantonly,
played a personal and essential role in ensuring that Mr. Moses-EL’s prosecution and
criminal trials lacked fundamental fairness to a degree that shocks the universal sense of
justice: (i) destroying exculpatory DNA evidence court-ordered to be preserved and
tested in order to conclusively assess the innocence of Mr. Moses-EL, thereby extending
his imprisonment for crimes he did not commit and depriving him of the exculpatory
evidence in his second trial; (ii) systematically withholding exculpatory evidence from
Mr. Moses-EL and his defense counsel regarding true perpetrator Mr. Jackson; (iii)
systematically manufacturing inculpatory evidence that was designed to promulgate the
prosecution and continued confinement of Mr. Moses-EL, and using this evidence against
him by presenting such evidence to judicial officers, members of the public, jurors, and
Mr. Moses-EL and his defense counsel; (iv) refusing to investigate alternative and more
viable suspects; (v) during Mr. Moses-EL’s first trial, misleading the jury about the
conclusions that could have been drawn by serological testing and refusing to seek DNA
testing; (vi) attempting, and taking affirmative steps, to deny Mr. Moses-EL access to
potential judicial remedies based on the destruction of exculpatory DNA evidence; (vii)

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conspiring to fabricate probable cause to prosecute Mr. Moses-EL and to continue to
confine Mr. Moses-EL, despite the great weight of evidence pointing to his innocence;
(viii) failing to train and supervise to prevent the above constitutional violations; and (ix)
failing to establish policies, customs, and/or practices to prevent the above constitutional
violations.
396.

Although Mr. Moses-EL has since been acquitted, the reckless, knowing,

intentional, willful, and wanton actions by Defendants described herein caused Mr.
Moses-EL to be unconstitutionally incarcerated and re-prosecuted. These actions were
egregious and were carried out in a manner that shocks the conscience, thus depriving
Mr. Moses-EL of his constitutional rights.
397.

As described above, Defendant Morrissey, as Denver District Attorney and

supervisor of Defendants Benedetti, Kimbrough, and Carroll, recklessly, knowingly,
intentionally, willfully, and wantonly participated in making Mr. Moses-EL’s second
criminal trial unfair by disseminating false information and entrenching his office in the
political prosecution of Mr. Moses-EL. Defendant Morrissey knew of, condoned, and/or
approved the wrongful acts of Defendants Benedetti, Kimbrough, and Carroll described
herein, with the intent and understanding to bring about Mr. Moses-EL’s unconstitutional
continued confinement and prosecution.

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398.

As a direct and proximate result of the actions referenced above, Mr.

Moses-EL’s rights were violated, and he suffered physical harm and injury, severe
emotional distress and anguish, and pecuniary damages, as is more fully alleged above.
SEVENTH CLAIM FOR RELIEF
42 U.S.C. § 1983 –– Fundamental Unfairness of
Clarence Moses-EL’s Criminal Trial
Violation of the Fourteenth Amendment-Procedural and Substantive Due Process
(against Defendant Morrissey)
399.

Mr. Moses-EL brings this claim against Defendant Morrissey.

400.

The acts of Defendants Benedetti, Kimbrough, and Carroll were committed

under their authority as employees of the Denver DA’s Office vested under the laws of
the State of Colorado; these acts were, therefore, committed under the color of state law.
401.

Defendant Morrissey knew or should have known of the need for additional

screening, training, supervising, and disciplining of employees of the Denver DA’s
Office to ensure that such employees would: (i) refrain from ignoring a criminal
defendant’s innocence; (ii) refrain from disseminating false information; (iii) exercise
care and thoroughness in the investigation and prosecution of a case of a crime involving
no other evidence but an unreliable identification; and (iv) refrain from filing and
pursuing charges in bad faith without probable cause.
402.

Through intentional and deliberate indifference and reckless disregard of

basic civil rights, Defendant Morrissey failed to provide adequate screening, training,
supervision, and discipline of employees of the Denver DA’s Office with respect to: (i)

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conducting a proper investigation; (ii) disseminating truthful information; (iii) exercising
care and thoroughness in the investigation and prosecution of a case of a crime involving
no other evidence but an unreliable identification; and (iv) refraining from filing and
pursuing charges in bad faith without probable cause.
403.

At all relevant times, the Denver DA’s Office, personally and/or through its

agents and employees, had final, discretionary authority to promulgate and implement
policies and procedures, including policies and procedures as to personnel training and
supervision, with respect to the Denver DA’s Office’s performance of its duties.
Defendant Morrissey (and/or his authorized agents) was a City and State “policymaker”;
he acted, however, with a reckless disregard to the constitutional rights of Mr. Moses-EL.
404.

But for Defendant Morrissey’s deliberate indifference to the inadequate

screening, training, supervision, and discipline of employees of the Denver DA’s Office,
Mr. Moses-EL would not have continued to be wrongfully convicted and deprived of his
liberty in violation of his constitutional rights.
405.

The foregoing violations of Mr. Moses-EL’s constitutional rights, his

conviction, his sentence, his incarceration, and his resulting and continuing injuries were
directly and proximately caused by the deliberate indifference to Mr. Moses-EL’s
constitutional rights by Defendant Morrissey and his subordinates.

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406.

As a direct and proximate result of Defendant Morrissey’s actions

referenced above, Mr. Moses-EL suffered physical harm and injury, severe emotional
distress and anguish, and pecuniary damages, as is more fully alleged above.
VI.

PRAYER FOR RELIEF

WHEREFORE, Mr. Moses-EL respectively requests that this Court enter
judgment in his favor and against the Defendants, and award him all relief as allowed by
law and equity, including, but limited to, the following:
a)

A declaration that Defendants violated the federal constitutional rights of
Mr. Moses-EL;

b)

Actual economic damages as established at trial;

c)

Compensatory damages, including, but not limited to, those for past and
future pecuniary and non-pecuniary losses, emotional distress, suffering,
loss of reputation, humiliation, inconvenience, mental anguish, loss of
enjoyment of life, and other non-pecuniary losses;

d)

Punitive damages for all claims allowed by law in amount to be determined
at trial;

e)

Pre-judgment and post-judgment interest at the highest lawful rate;

f)

Attorney’s fees and the costs associated with this action as allowed by law;
and

q)

Any further relief that this Court deems just and proper, and any other relief
as allowed by law.
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MR. MOSES-EL REQUESTS A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE.
Dated this 14th day of December 2017.
JOHNSON & KLEIN, PLLC
s/Gail K. Johnson
Gail K. Johnson
Eric K. Klein
Amy Kapoor
Aurora L. Randolph
1470 Walnut Street, Suite 101
Boulder, CO 80302
(303) 444-1885
(866) 340-8286 (fax)
gjohnson@johnsonklein.com
eklein@johnsonklein.com
akapoor@johnsonklein.com
arandolph@johnsonklen.com
ATTORNEYS FOR PLAINTIFF
CLARENCE MOSES-EL

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