No perjury charge for former cop in Sanford case

George Hunter
The Detroit News

Wayne County Prosecutor Kym Worthy said Tuesday she would not charge a former Detroit police official with perjury, meaning he will not be tried for allegedly lying under oath about evidence that helped put a 14-year-old in prison for a crime he did not commit.

Worthy said last month she was prompted to request murder charges be dropped against Davontae Sanford, who had spent eight years in prison, after discovering former Deputy Chief James Tolbert had allegedly lied about who drew a diagram of a 2007 quadruple homicide scene on Runyon.

Worthy said “the most significant” reason she declined to charge Tolbert was Sanford’s refusal to testify against the former cop.

However, Sanford’s attorney, Valerie Newman, said Worthy’s statement “is not accurate,” adding Sanford’s attorneys at Dykema Gossett made it clear to prosecutors he would testify as soon as the charges against him were formally dropped.

Wayne Circuit Judge Brian Sullivan vacated Sanford’s sentence on the same day prosecutors filed a motion to dismiss the charges against him, but he has yet to approve the prosecutors’ motion. Court officials said the delay was because the judge is reviewing unspecified documents.

State police had urged the filing of perjury charges against Tolbert after he told them he had drawn a crime scene sketch. His statement, made while he was Flint’s police chief, contradicted his July 13, 2010, testimony during an evidentiary hearing, in which he said Sanford had drawn the diagram.

Worthy said the crime scene map was “a major building block” in her case against Sanford, who was convicted of murder before being freed from prison on June 8.

In a press release Tuesday, Worthy said she declined to bring charges against Tolbert because there weren’t any witnesses who would testify against him. The six-year statute of limitations on the charge was to expire Wednesday.

“The building blocks of our case were severely undermined” by Tolbert’s interview with the Michigan State Police, Worthy said.

“In order to proceed with perjury charges, we must prove beyond a reasonable doubt that Tolbert’s testimony on July 13, 2010, was false. There were only three witnesses to the drawing of the sketch in question. Two of them, Davontae Sanford and James Tolbert, are unavailable to us.”

Worthy said Sanford’s attorneys sent prosecutors a letter Monday explaining “until the charges are dismissed by order of the court, Mr. Sanford asserts his Fifth Amendment privilege and will not be testifying regarding any matter related to those charges.”

Samuel Damren of Dykema Gossett said in a statement Tuesday after Worthy’s announcement that “Sanford indeed would be willing to testify after the charges against him were dismissed.”

He added that his letter said “Mr. Sanford’s testimony would be ‘that contrary to Tolbert’s testimony before Judge Sullivan, James Tolbert drew the diagram of the house and Mr. Sanford drew the bodies based on information provided to him by the police because Mr. Sanford had no first-hand personal knowledge of his own as to their location.’ ”

Tolbert could not immediately be reached for comment.

Worthy said the third person who could have testified against Tolbert was the detective in charge of the case, Sgt. Michael Russell, “and his testimony does not support a perjury charge,” she said.

Russell’s insistence under oath three times that Sanford had drawn the crime scene sketch was among the factors that prompted her to dismiss the perjury warrant request, Worthy said.

“Russell’s testimony has been consistent, and when asked he said that he would not change his previous statements and testimony,” Worthy said.

“In perjury cases, the most difficult burden on the prosecution is to prove that the defendant knowingly made a false statement,” Worthy wrote. “ ... it is not sufficient to simply present evidence that the defendant contradicted his sworn testimony.”

Attorney speaks out

Newman said prosecutors served Sanford’s attorneys with an investigative subpoena Friday afternoon, compelling him to testify Monday.

“The way Davontae has been treated by the prosecutor’s office, there’s no way as attorneys we would let our client testify when he’s still facing four murder charges that haven’t been dismissed,” she said.

“They do not need Davontae to testify under an investigative subpoena. They have his lawyers’ statement that he will cooperate and will testify.

“If they wanted to charge Tolbert, they could have charged him. And if prosecutors didn’t think the evidence was strong enough, why not just say that, without blaming Davontae, who has made it clear he’s willing to testify against Tolbert. He has never wavered that Tolbert drew the diagram.”

University of Detroit Mercy School of Law professor Larry Dubin said the case has the feel of a “merry-go-round.”

“If Sanford was willing to cooperate, but doesn’t want to before the case is dismissed, then it seems to me the crucial question is: What’s holding up the dismissal of the case?” he said. “Because if the case was dismissed, then the prosecutor, according to their explanation, could attempt to prove that Tolbert was guilty of providing false testimony. But they say they won’t because Sanford doesn’t want to testify before his case is dismissed. So it goes in circles.”

Crime scene sketch

When state police detectives interviewed Tolbert in October 2015, the former police official admitted he’d drawn the crime scene sketch.

Since that contradicted his testimony in a July 13, 2010, evidentiary hearing during Sanford’s appeal, state police submitted a request for prosecutors to charge him with perjury. State police also asked for murder charges against three men they believe responsible for the four killings.

According to Sanford and the police report, Sanford said Tolbert pressured him into helping with the crime scene sketch.

“Tolbert came in with a piece of paper, and was like ‘Show me where the bodies was at,’ ” Sanford said. “I’m like, ‘I don’t know where the bodies was at.’ That’s when he drew the whole diameter of the house. He was like, ‘If you show me where the bodies was at, I’ll make sure you go home.’

“They had already showed me the pictures before (of the bodies), so I’m thinking like, ‘I know from these pictures where they were at, so maybe if I do this, I’ll go home. I just want to go home at this time.

“So I did it, so once I did that and I signed it, he was like, ‘I told y’all. I told y’all.’ ”

Tolbert’s testimony

During the 2010 hearing, Tolbert testified he asked Sanford to draw the crime scene sketch the day after the Runyon killings.

“My motive behind asking him to draw the crime scene (was) to see if he had any knowledge, down to the television and the positions of the (bodies),” he said, according to a transcript of the hearing. “If he did, in fact, see that, the only way he could have seen it (was) if he was in the house.”

Sanford claims police had shown him pictures of the dead bodies before he was asked to draw the map. “I never will forget those pictures,” he said.

During the hearing, Sullivan asked Tolbert: “Was this sketch done entirely in the defendant’s hand?”

Tolbert replied: “Yes, it was.”

When State Appellate Defender Office attorney Kim McGinnis asked Tolbert during cross-examination whether Sanford had drawn the map entirely, Tolbert answered: “I believe.”

Tolbert also said he wasn’t sure if Sanford drew “hatch marks” to depict windows on the diagram.

Similar sketches

During the state investigation into the Runyon killings, Tolbert volunteered the information that led detectives to seek perjury charges against him, according to the state police report.

Detective Sgt. Patrick Roti said in the report he phoned Tolbert on Sept. 22, 2015, and said they were reviewing the Sanford case. Tolbert said he’d be willing to meet.

When they met Oct. 2, “Tolbert was asked about the sketch that Davontae Sanford had drawn,” Roti wrote. “Tolbert indicated he knew what we were talking about and voluntarily asked for a piece of paper to draw the sketch.”

After Tolbert drew the diagram, Roti said it and the sketch attributed to Sanford “closely resembled each other.”

“We asked Tolbert if he was the one who had actually drawn the ‘original sketch.’ Tolbert then acknowledge(d) to have drawn this ‘original sketch’ and Sanford only marked the location of the bodies within this sketch.”

Roti said he was about to wrap up the interview when “Tolbert ... grabbed the sketch he had drawn for us and crumpled the paper up and attempted to leave with it.

“Investigators had to ask Tolbert for the sketch he crumpled up, to which he asked why,” Roti wrote. “It was then explained this would be part of our case and put into evidence.”