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A federal appeals court ruled Tuesday that Douglas Stewart Carter can add claims of prosecutorial misconduct and suppression of evidence to a petition challenging his murder conviction and death sentence in the 1985 slaying of a Provo woman, Eva Olesen.
The ruling by the 10 U.S. Circuit Court of Appeals — which made no determination on the merits of those claims — was not a complete victory for Carter: It also upheld the denial by U.S. District Judge Ted Stewart of most of his other pending claims, including ineffective assistance by his lawyers and admission of an alleged involuntary confession.
Carter's attorneys allege that police gave money and gifts to two prosecution witnesses and that prosecutors never told them about it. Officials have denied any wrongdoing.
"We are pleased with the Tenth Circuit's decision and look forward to the day that Mr. Carter's claims can finally be heard on the merits," said Paula Harms, an Arizona assistant federal public defender who represents Carter. "The state failed to disclose important evidence about the key witnesses against him for decades. This is simply unacceptable in our justice system, especially in a capital case."
The case now goes back to Stewart in Salt Lake City for a determination on whether to grant a stay in federal court while Carter's claims are being litigated in Utah state court. A stay would allow the death-row inmate to return to federal court to continue pressing his claims after a state court ruling. A denial of a stay would end the federal case, which was filed in 2002 and initially included nearly 50 claims.
Olesen was found dead in her home on Feb. 27, 1985, with her hands tied behind her back with a telephone cord and nude from the waist down, according to court documents. The 57-year-old woman had been stabbed 10 times and was fatally shot in the back of the head.
Several weeks later, Carter became a prime suspect after his then-wife shared information about his possible involvement with authorities. She said her husband had gone to visit his friend Epifanio Tovar the night of the slaying and met two of Tovar's friends, one of whom held a grudge against Provo Police Chief Swen Nielsen, who is Olesen's nephew.
According to Carter's wife, her husband and Tovar's two friends went to Olesen's residence to steal her gold necklace. She said Carter waited in the car and did not know Olesen was dead until the two returned to the car.
Court records said police then questioned Tovar, who told them Carter had left his home with the intent to steal money and returned two hours later wearing different clothes. He claimed Carter said he had stabbed Olesen about 10 times and, because she did not die, shot her in the back of the head, the records say.
Carter was arrested in Nashville, Tenn., and allegedly confessed to the murder. He later claimed the confession was coerced.
No physical evidence or eyewitness testimony placed Carter at the murder scene and the only corroboration of his confession was the testimony of Epifanio Tovar and his wife, Lucia Tovar, court documents say.
Epifanio Tovar said Carter described how he killed Olesen and asked him to dispose of a gun, which he did. Lucia Tovar testified that she overhead Carter describing the killing to her husband, even though they were speaking in English and she spoke only Spanish.
Both Tovars testified they took the stand at Carter's trial free of any inducement, except for the court-ordered witness fees of $14 a day, according to court documents.
Carter was convicted by a jury of first-degree murder and sentenced to death. The Utah Supreme Court affirmed his conviction in 1989 but reversed the death sentence; he was later resentenced to death.
Sometime before the resentencing, the Tovars disappeared, court records say. In March 2011, one of Carter's lawyers was able to locate them and the two provided declarations about the treatment they got from the Provo police, the records say.
The husband said the police twice moved the couple to a new apartment; paid their rent, utilities and phone bill; and bought them groceries. He said police coached his statements during interrogation, according to court documents, and specifically told him not to say anything about them paying living expenses.
The wife said the police sent them gifts, including food baskets, toys for their son and a Christmas tree. She also said that her trial testimony was based not on what she heard Carter saying, but on what her husband told her Carter said, according to court records.
The 10th Circuit noted that the Tovars' declarations were corroborated in part by declarations from Provo officers, including one who court records quote as saying it was his "responsibility to make certain the Tovars were happy."
Twitter: @PamelaMansonSLC