Citing ​“damn­ing rev­e­la­tions” that police and pros­e­cu­tors have used bribes and threats to secure tes­ti­mo­ny in a three-decades-old cap­i­tal case, the Utah Supreme Court has ordered a Utah County court to con­duct a hear­ing to deter­mine whether death-row pris­on­er Douglas Stewart Carter should receive a new tri­al. Carter has spent 33 years on Utah’s death row. Although police found fin­ger­prints and blood at the crime scene, no phys­i­cal evi­dence tied Carter to the crime. 

Carter, who is African American, was con­vict­ed of the mur­der of a white woman, Eva Olesen, based upon the tes­ti­mo­ny of two wit­ness­es, Epifanio and Lucia Tovar, who told the jury that he had bragged to them about killing Oleson dur­ing a home inva­sion, that he also said he had intend­ed to rape her, and that he had laughed about her death. Prosecutors also pre­sent­ed a state­ment Carter had made to police con­fess­ing to the mur­der, but Carter has long claimed that state­ment had been coerced. Shortly after the tri­al, the court said, the Tovars ​“van­ished.” After Carter over­turned his death sen­tence on appeal, pros­e­cu­tors told the court in 1992 that they could not locate the Tovars to tes­ti­fy at Carter’s resen­tenc­ing. At the resen­tenc­ing, the tri­al court per­mit­ted the pros­e­cu­tion to read the jury the Tovars’ tes­ti­mo­ny from Carter’s first tri­al, and he was again sen­tenced to death. Through what the appeals court described as ​“a coin­ci­dence,” Carter’s defense team was able to find the Tovars in 2011. When his lawyers spoke with them, the Tovars — who were in the coun­try ille­gal­ly— con­fessed that Provo police had threat­ened them with depor­ta­tion, the removal of their son, and prison if they did not impli­cate Carter, pres­sured them to make false state­ments, and then gave them gifts and paid for their rent and gro­ceries once they agreed to coop­er­ate. In a sworn state­ment, the Tovars also said that police had explic­it­ly instruct­ed them to lie under oath about the payments.

Despite this evi­dence, the tri­al court had denied Carter’s peti­tion for a new tri­al with­out a hear­ing. The appeals court reversed. In its deci­sion, the court wrote that, in the absence of phys­i­cal evi­dence impli­cat­ing Carter, the Tovars’ tes­ti­mo­ny was ​“cru­cial” to the prosecution’s case. Writing for the court, Justice Deno Himonas said: ​“Carter has a col­orable claim that the Tovars’ tes­ti­mo­ny evolved over time to become more dam­ag­ing to Carter in an attempt to please the peo­ple who had pro­vid­ed them with rent mon­ey and threat­ened them with depor­ta­tion and sep­a­ra­tion if they did not coop­er­ate.” The court said that the Tovars’ sworn state­ments cre­at­ed ​“a gen­uine dis­pute of mate­r­i­al fact as to whether the out­come of the tri­al would have been dif­fer­ent but for the absence of the evi­dence,” and ordered the tri­al court to grant Carter a hear­ing at which he may attempt to prove his claim.

(Annie Knox, Utah’s high court orders fresh review of evi­dence for man on death row, Deseret News, March 23, 2019; Jessica Miller, ​‘Damning rev­e­la­tions’ result in a new hear­ing for a Utah death row inmate, The Salt Lake Tribune, March 25, 2019.) Read the Utah Supreme Court’s deci­sion in Carter v. State. See Prosecutorial Misconduct.

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