Freed Wayne convicts just want to hear they’re innocent

George Hunter
The Detroit News

Davontae Sanford, Dwayne Provience and Raymond and Thomas Highers insist they aren’t killers. And they want to hear Wayne County Prosecutor Kym Worthy say so.

The convicted murderers were freed from prison after their cases proved to be tainted. They’ve eased into life on the outside, reconnected with family, found jobs, gone to school.

They may be free, but they’re not necessarily innocent, Worthy contends. She has declined to characterize them as such during press conferences and in news releases. And the ex-prisoners say it feels like a slap in the face.

Though Worthy’s stance poses no legal problems, former inmates say it leaves a cloud of guilt over their heads, further punishing them after they were imprisoned for crimes they didn’t commit.

“I lost 10 years of my life for something I didn’t do,” Provience said. “It would be nice if she would just say, ‘we got it wrong.’ But she won’t, and that bothers me.”

Since 1989, 31 prisoners whose cases were handled by Wayne County prosecutors have been released from prison, the most in Michigan, according to the National Registry of Exonerations, which is a joint research project of Michigan Law School, Michigan State College of Law and the University of California Irvine. Only six counties nationwide have had more prisoners released.

Six prisoners from Macomb County and four from Oakland County also have been released, according to the registry.

Prisoner says he was cheated out of years with his kids

Only eight of the convictions occurred since Worthy became prosecutor in 2004, but 25 of them were released from prison during her tenure. Her office fought most of those efforts, said Innocence Clinic director and UM law professor David Moran.

“Who would want to come out and say, ‘I played a role in sending a 14-year-old to prison for a crime he didn’t commit’?” said Sanford, who was released from prison in June after serving eight years for a 2007 quadruple homicide. “She doesn’t want to admit I’m innocent, because it would make her look bad.”

Murder charges against Sanford were dismissed in July, six weeks after Worthy’s office made a motion to dismiss them based on a Michigan State Police report about possible perjury by a Detroit police officer. The report also pointed to hitman Vincent Smothers and two accomplices as the ones who killed the four in a drug house on Runyon.

“In an overburdened criminal justice system like Wayne County, mistakes are bound to happen,” said Moran, who is director of the student-run Innocence Clinic. “There are real problems with indigent defense, and a system that tries to move cases along as quickly as possible.”

Worthy said the National Registry of Exonerations is a misnomer.

“Mr. Moran’s definition of exoneration appears to be any time a defendant is granted a new trial and prosecutors don’t appeal,” she said. “That’s not exoneration. Exoneration is a demonstration of actual innocence, not the presentation of evidence that a judge says sufficiently undermines the case and a new trial is warranted.

“There are circumstances where a retrial is problematic or impossible, just because we are unable to go forward with a prosecution does not mean that the person has been exonerated.”

When asked whether Sanford, Provience and the Highers brothers were innocent — or if they’re murderers who should be behind bars — Worthy said: “If we think the wrong person was convicted, we’ll agree to relief. If we think the matter should be litigated, and the trial judge rules against us, that doesn’t mean we were wrong because we were unable to retry the defendant because of the age of the case, evidentiary issues or witness problems.

“Not being able to proceed on a case or legally to dismiss because we cannot proceed is not an exoneration. It means we cannot proceed.”

Provience, who won a $2 million wrongful conviction lawsuit from the city after his release from prison in 2009, said he’s insulted by Worthy’s statements.

“Kym Worthy doesn’t want to admit she’s wrong,” said the 43-year-old father of three, who won his lawsuit after proving Detroit police withheld case notes that showed detectives thought another man was responsible for the killing for which he was convicted. “They convicted me on flimsy evidence, but she doesn’t want to come out and say it.”

His conviction hinged on the testimony of Larry Wiley, a crack addict who said he saw Provience commit the drive-by shooting. Wiley agreed to testify in exchange for prosecutors dropping a breaking and entering charge. Wiley later recanted his story.

In November 2009 a judge granted Provience’s motion for a new trial. He was freed from prison, but prosecutors pressed forward with their case before dropping it four months later.

“I give Kym Worthy credit; as soon as she saw that the police had hidden evidence, she said ‘he needs a new trial; this is a clear Brady violation (a violation of due process because evidence was suppressed),” Provience said. “I just don’t understand why she can’t say I’m innocent.”

Prosecutors said they dismissed the charges against Provience because Detroit police couldn’t find crucial files, and because the trial judge ruled Wiley could not testify in a new trial.

“She’s basically saying I’m guilty, and the only reason I’m free is because of a technical issue,” Provience said.

Worthy says she is willing to drop cases when evidence suggests there’s been a wrongful conviction. She noted how her office handled the case of Derrick Bunkley, who was released from prison in February after cellphone evidence showed he wasn’t near the scene of a shooting for which he’d been convicted.

The day a new trial was granted, prosecutors dismissed the case against Bunkley, who was freed after two years in prison.

Mark Reene, Tuscola County prosecutor and president of the Prosecuting Attorneys Association of Michigan, said Worthy has shown concern about wrongful convictions in her career.

“It’s my impression from interacting with her for years that she does have in place guards to get things right, and a willingness to look at cases when there may be something wrong,” he said.

1,200 wrongfully in prison?

While experts say it’s impossible to gauge exactly how many defendants are wrongfully convicted, studies estimate between 3 percent and 5 percent nationally. A 2014 UM law school study estimated at least 4.1 percent of all defendants sentenced to death in the United States since the 1970s were innocent.

“If 3 percent of all convictions are wrongful, and that’s being very conservative, that means there are about 1,200 people in Michigan prisons right now who are actually innocent,” Moran said. “I would expect Wayne County would have a higher wrongful conviction rate than most counties because there are so many problems with the criminal justice system in that county, especially the quality of indigent defense.”

Reene said the prospect of sending an innocent defendant to prison is “a prosecutor’s worst nightmare.” He said when Worthy served as president of the association from 2013-14, she helped him set up a best practices committee designed to guard against wrongful convictions.

“It wasn’t forced on us; we just thought it was appropriate,” he said. “We’re continuing to go through all the cases on the (University of Michigan) exoneration list, with a mindful eye toward learning, and passing on what we learn to prosecutors and law enforcement officers.”

Reene said poor public defenders are largely to blame for wrongful convictions.

“We found that to be a high common denominator in these cases,” he said. “Other issues we found were problems with (witness) misidentification.”

Valerie Newman, an attorney with the State Appellate Defender Office, said prosecutors often balk when faced with the possibility their office was responsible for a wrongful conviction.

“There’s an unwillingness to accept that mistakes happen,” she said. “I think it’s cognitive dissonance: Most people think they do a good job, so to be confronted with the notion they put an innocent person in prison is hard to deal with.

“There are so many stages that go into a conviction: the police investigation, then prosecutors investigate, and they bring evidence to court. So there’s almost a knee-jerk reaction to dismiss new information that shows all that work may have been based on a false premise.”

Reprieved after 25 years

Thomas and Raymond Highers were convicted in 1987, years before Worthy took over as prosecutor. But since their 2012 release from prison, she has insisted they’re free on a technicality.

They were convicted of killing a marijuana dealer with a shotgun, after a witness said he saw two white men running from the house after the shooting. Another man testified he heard Thomas Highers planning to rob the dealer, saying he’d kill him if necessary.

After they had served 25 years in prison, new witnesses came forward saying they saw two black men shoot the drug dealer. Prosecutors argued the new witnesses were conspiring to free the Highers brothers, who are white. In August 2012, a judge granted a new trial and the brothers were released from prison.

Prosecutors waited more than a year before dismissing the charges. Worthy said the case was too old to retry, because it would be too difficult to round up evidence and witnesses.

“Just as we did 26 years ago, we firmly believe in the evidence in this case,” Worthy said in a statement after the Higherses were freed. “We have worked diligently to bring this case to trial. With the passage of time it is an unfortunate reality that this case cannot be put back together and we must dismiss it. Sadly, in this case justice was not done.”

Thomas Highers said the comment stung. “I thought that was pretty vindictive,” he said. “After the new evidence surfaced they insisted on a deal; otherwise they said we were going to trial.

“Well, we wanted a trial the whole time, because we knew we would win. They said if we would just plead guilty, they’d give us time served. We refused, because we aren’t guilty. I don’t care what she says.”


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