Pennsylvania Court Finds State Trooper Fabricated Evidence, Awards Death-Row Prisoner Kevin Dowling New Trial

A Pennsylvania tri­al court has grant­ed a new tri­al to death-row pris­on­er Kevin Dowling (pic­tured), find­ing that pros­e­cu­tors with­held evi­dence that would have shown he was 40 miles away when their sole eye­wit­ness claimed to have seen him near the murder scene. 

In a rul­ing issued February 22, 2022, Lebanon County Senior Judge Robert J. Eby, sit­ting by des­ig­na­tion in Dowling’s York County case, also found that pros­e­cu­tors failed to cor­rect the tes­ti­mo­ny of a state troop­er who fab­ri­cat­ed a time­line that sup­port­ed the eyewitness’s erro­neous iden­ti­fi­ca­tion. Dowling’s tri­al coun­sel, Eby found, also was inef­fec­tive in fail­ing to request evi­dence in the pos­ses­sion of the pros­e­cu­tion that would have demon­strat­ed that the prosecution’s time­line was inac­cu­rate and that its eye­wit­ness tes­ti­mo­ny was mistaken.

“This Court has … thor­ough­ly and exten­sive­ly con­sid­ered whether the Commonwealth par­tic­i­pat­ed in the sup­pres­sion of excul­pa­to­ry evi­dence pri­or to Petitioner’s tri­al in October and November of 1998, as well as whether the Commonwealth failed to cor­rect tes­ti­mo­ny … which it knew or should have known to be mate­ri­al­ly false,” Eby wrote. ​“On both of these issues, we con­clud­ed that it has.”

The Evidence Against Dowling and the Fabricated Timeline

Dowling was con­vict­ed and sen­tenced to death for the 1997 mur­der of Jennifer Myers at Gray Fox Gallery in Spring Forge Plaza in Spring Grove, Pennsylvania. She was killed at about 1 p.m. on October 20, 1997, and no phys­i­cal evi­dence linked Dowling to the murder. 

The prosecution’s case against Dowling relied heav­i­ly on the tes­ti­mo­ny of a sin­gle eye­wit­ness, Sandra Sue Eller, who tes­ti­fied that she had ​“no doubt at all” that she saw Dowling at Spring Forge Plaza at 11:20 or 11:30 that morn­ing. Her tes­ti­mo­ny was the only evi­dence that linked Dowling to the scene of the mur­der. Eller’s receipt for shop­ping that day at Kennie’s Market — also in Spring Forge Plaza — was time­stamped 10:50 a.m. and she said she saw Dowling with­in min­utes of checking out.

However, the prosecution’s own evi­dence showed that Dowling was more than 40 miles away at Muddy Run Lake at 10:50 a.m. Prosecutors called Clarence Hess, a rental boat pro­pri­etor at the lake, who tes­ti­fied that Dowling got into a boat at about 10:20 a.m. that day and was on the lake for between 30 and 45 min­utes. By the prosecution’s own tes­ti­mo­ny, it would take ​“an hour and three min­utes” or ​“an hour and eight min­utes” to trav­el from the lake to the shop­ping plaza where Eller sup­pos­ed­ly saw Dowling. In his opin­ion, Judge Eby not­ed that Dowling ​“could not have arrived to the Kennie’s Market park­ing lot until after 11:50 a.m., a full hour after Eller checked out of and depart­ed Kennie’s Market.”

Fabricating a time­line in which Eller could have seen Dowling near the mur­der scene around the time of the killing, state Trooper William Mowrey tes­ti­fied that the time stamps on all the cash reg­is­ters at Kennie’s Market were inac­cu­rate. Mowry claimed that he had checked the market’s reg­is­ters on October 25, 1997 and assert­ed that the reg­is­ter Eller used, reg­is­ter 6, was 20 min­utes slow and that every oth­er reg­is­ter showed a different time.

In post-con­vic­tion pro­ceed­ings before Judge Eby, the pros­e­cu­tion con­ced­ed that Mowrey’s tes­ti­mo­ny was false. In a stip­u­la­tion filed with the court, the defense and pros­e­cu­tors pre­sent­ed expert reports, cred­it card records, and oth­er reg­is­ter receipts con­clu­sive­ly demon­strat­ing that the time stamps on reg­is­ter 6 that day were accu­rate and that Eller in fact checked out at 10:50 a.m. An ini­tial report by pros­e­cu­tion experts in 2021 stat­ed that ​“there is no evi­dence to sup­port Trooper Mowrey’s rep­re­sen­ta­tion that when he checked the time on reg­is­ter 6 at Kennie’s Market on October 25, 1997, the reg­is­ter was dis­cov­ered to be 20 min­utes slow. Further, we would tes­ti­fy that there is no evi­dence to sup­port Trooper Mowrey’s rep­re­sen­ta­tion that when he checked the oth­er reg­is­ter times on October 25, 1997, each reg­is­ter dis­played a different time.”

During the inves­ti­ga­tion of the mur­der, the state police had col­lect­ed the log of the reg­is­ter receipts from Kennie’s Market, but the pros­e­cu­tion failed to pro­duce the log to the defense and Dowling’s tri­al coun­sel failed to request its dis­clo­sure. The log reflect­ed that oth­er cus­tomers had made cred­it card pur­chas­es just before and after Eller’s cash pur­chase. Records of those pur­chas­es kept by the cred­it card com­pa­nies matched the times reflect­ed on the time stamp for reg­is­ter 6, con­clu­sive­ly estab­lish­ing that the time stamp was accu­rate, that Dowling could not have been present at the time Eller claimed to have seen him, and that her ​“no doubt at all” eye­wit­ness iden­ti­fi­ca­tion was mistaken.

The Court’s Findings

Judge Eby found that defense coun­sel, Jerry Lord, had failed to obtain ​“read­i­ly avail­able excul­pa­to­ry evi­dence” that would have pro­vid­ed ​“objec­tive proof” that whomev­er Eller saw out­side Kennie’s Market was not Dowling. Further, Eby found, defense coun­sel would have been able to expose Trooper Mowrey’s tes­ti­mo­ny as ​“base­less and patently false.” 

“This Court has thor­ough­ly con­sid­ered whether tri­al coun­sel pro­vid­ed effec­tive assis­tance of coun­sel to Petitioner dur­ing his tri­al,” Eby wrote. ​“We con­clude that he did not.”

Because Eller’s iden­ti­fi­ca­tion of Dowling was cen­tral to the prosecution’s case, pros­e­cu­tors, Eby said, ​“knew, or should have known, that Eller’s iden­ti­fi­ca­tion of [Dowling] had to be mis­tak­en. … Nevertheless, at tri­al, the Commonwealth relied upon the incom­pe­tent, unsci­en­tif­ic and undoc­u­ment­ed inves­ti­ga­tion of Trooper Mowrey in an attempt to bol­ster Eller’s tes­ti­mo­ny and con­vince the jury that her receipt was inaccurate.” 

Overturning Dowling’s con­vic­tion, Eby wrote that if the pros­e­cu­tion had dis­closed the reg­is­ter receipts or if coun­sel had request­ed them, ​“it is clear there is a rea­son­able prob­a­bil­i­ty that the out­come of the tri­al would have been different.”

The tri­al pros­e­cu­tor, for­mer York County First Assistant District Attorney Tom Kelley, denied hav­ing with­held evi­dence in the case, telling the York Daily Record, ​“we nev­er didn’t dis­close any­thing.” The Pennsylvania Attorney General’s office, which han­dled the post-con­vic­tion pro­ceed­ings in the case, issued a state­ment say­ing ​“We respect­ful­ly dis­agree with the con­clu­sion reached by the court and plan to appeal.”

Dowling has been on Pennsylvania’s death row more than 23 years.