Utah Court Grants New Trial to Death-Row Prisoner Convicted in 1985 by False Testimony Coerced by Police

A Utah judge has grant­ed a new tri­al to death-row pris­on­er Douglas Carter, find­ing that pros­e­cu­tors know­ing­ly with­held from the defense evi­dence that police coerced false tes­ti­mo­ny from two key wit­ness­es, coached them to lie, pro­vid­ed them ​“thou­sands of dol­lars in finan­cial ben­e­fits” to impli­cate Carter, and threat­ened them with depor­ta­tion and loss of their son if they did not cooperate.

Carter, who is black, was charged with mur­der­ing a white woman, Eva Oleson, who was the aunt of the Provo City Police Department police chief. No phys­i­cal evi­dence linked him to the crime. He was tried, con­vict­ed, and sen­tenced to death in 1985 based upon a con­fes­sion to police that Carter said was false and coerced and the tes­ti­mo­ny of two wit­ness, Epifanio and Lucia Tovar, who were in the coun­try ille­gal­ly and claimed Carter had con­fessed to the murder.

Epifanio tes­ti­fied at the tri­al that Carter had come to him pri­or to com­mit­ting the crime and told him that he intend­ed to ​“rape, break, and dri­ve,” that night, left his house, and returned with­in a cou­ple of hours, then con­fessed to him in detail how he had com­mit­ted the crime and per­formed a phys­i­cal demon­stra­tion, while laugh­ing. Lucia ver­i­fied the time­line to which Epifanio had tes­ti­fied and said she had seen Carter act­ing some­thing out. The week­end before the tri­al Epifanio also sup­pos­ed­ly revealed the loca­tion of the mur­der weapon to the police, after hav­ing told the police in sev­er­al pri­or meet­ings that he did not know where the gun was.

Following depo­si­tions and an evi­den­tiary hear­ing, Utah County District Court Judge Derek P. Pullan (pic­tured) issued a 115-page rul­ing on November 23, 2022 grant­i­ng Carter a new tri­al. The Tovars tes­ti­fied by depo­si­tion that police and pros­e­cu­tors had offered them gifts and mon­ey, coached them to lie in court, and threat­ened them with depor­ta­tion if they didn’t coop­er­ate. Pullan found that the false ver­sion of events the Tovars pro­vid­ed police pri­or to tri­al had become more and more favor­able to the pros­e­cu­tion as the pay­ments increased, that pros­e­cu­tor Wayne Watson was aware of the pay­ments, that Watson knew Epifanio lied when he tes­ti­fied that the sole ben­e­fit he had received for his coop­er­a­tion was a check for $14, and that Watson know­ing­ly failed to cor­rect Epifanio’s lie.

Pullan also found that Provo Police Lieutenant George Pierpont, who had elicit­ed the alleged con­fes­sion from Carter, had threat­ened the Tovars before elic­it­ing favor­able state­ments from them, that either Pierpont or Watson told Epifanio to tes­ti­fy that Carter said he was going to go ​“rape, break, and dri­ve” before the mur­der, that Watson knew that Epifanio’s tes­ti­mo­ny was false, and that Watson failed to cor­rect the false tes­ti­mo­ny once it was given.

Prosecutors announced on November 28 that they will appeal the ruling.

The tri­al court’s rul­ing came more than 35 years after Carter was first tried. His death sen­tence was ini­tial­ly over­turned in 1989 because of an uncon­sti­tu­tion­al jury instruc­tion. The Tovars had dis­ap­peared in the inter­im and pros­e­cu­tors read their pri­or tes­ti­mo­ny into the record of Carter’s resen­tenc­ing tri­al in 1992, at which he was again sen­tenced to death. The Utah Supreme Court upheld that death sen­tence in 1995. 

Carter’s lawyers locat­ed the Tovars in 2011, and the Utah Supreme Court ordered the tri­al court to con­duct an evi­den­tiary hear­ing based on their ​“damn­ing rev­e­la­tions” that Provo police had paid their rent and giv­en them gro­ceries and gifts in the months lead­ing up to the tri­al, told them to lie about the pay­ments, and threat­ened to deport them or take their infant son from them if they did not con­tin­ue to coop­er­ate. The court ruled that the new evi­dence of police and pros­e­cu­to­r­i­al mis­con­duct left the Tovars’ tri­al tes­ti­mo­ny ​“taint­ed as a whole,” and it ordered the tri­al court to con­duct an evi­den­tiary hear­ing on Carter’s claims.

In a depo­si­tion tak­en for that hear­ing, Epifanio tes­ti­fied that he lied about Carter say­ing he planned to rape any­one, but in a meet­ing with Pierpont and Watson, ​“the term ​‘rape, break, and dri­ve,’ came up,” and one of the two men told him to use that phrase in his tes­ti­mo­ny. He tes­ti­fied that the police had instruct­ed him and Lucia not to dis­close the pay­ments they had received.

Epifanio also tes­ti­fied at the depo­si­tion that he only used the ​“rape, break, and dri­ve” lan­guage at tri­al because he believed that the police want­ed him to say that. He tes­ti­fied that if he did not tes­ti­fy at tri­al the way the pros­e­cu­tion want­ed, “[the police] had told me they would accuse me of being an accom­plice, and that they would put me in jail, and that they would deport my wife, and that they would take away my son.” Lucia’s depo­si­tion tes­ti­mo­ny con­firmed that the police had threat­ened to deport them and sep­a­rate them from their son on multiple occasions.

Both Epifanio and Lucia also tes­ti­fied about police offi­cers pay­ing their util­i­ties, giv­ing them rent and gro­cery mon­ey, and even send­ing them and their chil­dren Christmas presents pri­or to the tri­al. Watson was aware of this finan­cial arrange­ment but did not cor­rect the record when Epifanio tes­ti­fied dur­ing tri­al that he had only received $14 from the state for testifying. 

When deposed, Watson first claimed that he did not remem­ber the Tovars, did not know that they were not legal res­i­dents of the United States, and did not believe he had called them to tes­ti­fy. Then, after admit­ting to know­ing that the police made rent pay­ments to the Tovars, he said that he did not cor­rect Epifanio’s false tes­ti­mo­ny that he had only received $14 because he did not know the exact amount the police had paid for his rent and had assumed Carter’s coun­sel would cor­rect the record. Watson denied know­ing that Epifanio had been coached to say that Carter had planned to ​“rape, break, and drive.” 

Ultimately, the tri­al court deter­mined that the State had an oblig­a­tion to inform Carter’s coun­sel that the police had threat­ened the Tovars with depor­ta­tion, that police offi­cers had been mak­ing sub­stan­tial pay­ments to the Tovars in the lead-up to the tri­al, and that Watson had com­mit­ted mis­con­duct by allow­ing Epifanio to false­ly tes­ti­fy that Carter told him that he was plan­ning to ​“rape, break, and dri­ve” and that he had only received $14 from the state. Judge Pullan found that either Watson or Pierpont had been aware that the tes­ti­mo­ny was false, and that Watson had a duty to cor­rect the falsehood.