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Utah lawyers, Rocky Mountain Innocence Center help exonerate man convicted of 1994 murder

First Published      Last Updated Jul 17 2017 07:00 am


Rocky Mountain Innocence Center took case nearly 20 years after he was sentenced to two life terms in prison.

After the manager of a Las Vegas Carl's Jr. was shot to death during a 1994 robbery, a half-dozen witnesses told police they saw a man who was about 6 feet tall and weighed approximately 200 pounds fleeing the fast-food restaurant.

DeMarlo Antwin Berry — who was 5 feet 8 and 140 pounds at the time that 32-year-old Charles Burkes was mortally wounded by a shot that hit the back of his left shoulder — was convicted of first-degree murder and sentenced to life in prison.

For more than two decades, Berry insisted he was innocent and waged what seemed to be a losing legal battle to overturn his conviction. But thanks to the Salt Lake City-based Rocky Mountain Innocence Center (RMIC) and a group of Utah and Nevada lawyers, he walked out of prison a free man June 30.




"If they wasn't as thorough as they were, we wouldn't be here," Berry, now 42, said about the members of his legal team at a news conference later that day. "Nobody would be concerned about me or anything. I'd just be another number in prison."

That team included attorneys and other personnel with law firms Richards Brandt Miller Nelson in Salt Lake City and Weil & Drage in Henderson, Nev., who worked thousands of hours for free along with the nonprofit Rocky Mountain Innocence Center to overturn Berry's conviction.

Berry was released soon after a judge signed an order exonerating him. The Clark County District Attorney's Office had stipulated to the exoneration.

After the April 24, 1994, slaying, police focused on two suspects based on anonymous tips, according to court records. One was Steven "Sindog" Jackson, a gang leader who was 6 feet tall and weighed 235 pounds. The other was Berry, then 19, who was in the area that night and said he stood outside watching the police activity at Carl's Jr.

According to court records, police have said their information suggested Jackson was the getaway driver, not the gunman, in the crime. Berry was arrested and charged in the case.

By the time Berry went to trial, four eyewitnesses who originally described a bigger man leaving the restaurant identified him as the one running out of Carl's Jr., court records say. In addition, a jailhouse informant testified Berry had confessed to the killing while the two of them shared a jail holding cell.

When jurors told the judge they were deadlocked 11–1 — without revealing which way the majority had voted — Berry's defense attorney counseled him to agree to accept the majority decision in exchange for prosecutors taking the death penalty off the table, court records say.

The verdict was guilty of murder, robbery and burglary, and Berry was sentenced in 1995 to two consecutive life terms.

"At first you think ... they'll see it's not me and I'm going to walk out," Berry said at the news conference. But that didn't happen, and Berry's time behind bars stretched into years.

After filing unsuccessful appeals and petitions for post-conviction relief, Berry applied for help from the Rocky Mountain Innocence Center, which accepted the case in 2012. Two students at the University of Utah S.J. Quinney College of Law's Innocence Clinic — Jennifer Springer, now the Innocence Center's managing attorney, and Samantha Wilcox, now an attorney at Richards Brandt — began reviewing the evidence.

As part of the review, RMIC attorney Elizabeth Fasse and Wilcox interviewed Jackson in a California prison, where he is serving a sentence of life without parole for another murder. That interview produced an affidavit from Jackson confessing to the murder and saying Berry had nothing to do with it, according to court documents.

Wilcox said when she told Jackson that she was investigating Berry's claim of innocence, he paused and said, "I've been waiting for you."

Wilcox and attorney Craig Coburn, a colleague at Richards Brandt, later interviewed Jackson a second time and again got a confession, this one with additional information about the crime. Coburn said Jackson, who had been raised a Jehovah's Witness, had returned to his religious roots and wanted to clear his conscience.

In May 2014, Berry's lawyers filed a petition in Nevada's 8th Judicial District Court for post-conviction relief asserting, among other claims, that newly discovered evidence showed their client was innocent. The evidence submitted to support their argument included declarations from Jackson confessing to the crime; from the jailhouse informant recanting his trial testimony; from Fasse describing her interview with Jackson; and from an acquaintance of Jackson who said he confessed to shooting Burkes.

After a judge dismissed the petition without conducting an evidentiary hearing, the lawyers appealed to the Nevada Supreme Court. In December 2015, the court ruled the declarations were sufficient to merit a hearing on Berry's innocence claim.

The justices said in their 3-0 decision that they were satisfied "this new evidence, if true, shows that it is more likely than not that no reasonable jury would convict Berry beyond a reasonable doubt."

In 2016, while preparing for the evidentiary hearing, Berry's attorneys learned the Clark County District Attorney's Office was setting up a Conviction Review Unit and they submitted his innocence claim.

District Attorney Steve Wolfson said Jackson's confession, which included additional information about the crime scene that would not have been known by someone who was not there at the time of the slaying, and verification of other information, led to a decision to clear Berry.

Springer said Berry has been overwhelmed by the attention and since the news conference has asked for privacy. He married while in prison and plans to go to barber school.

"I just want to continue with life," Berry said. "I have a second chance at life, and I'll take the opportunity."

Audrie Locke, public information officer for the Clark County D.A.'s Office, said that no decision has been made on whether to prosecute Jackson for Burkes' slaying.

pmanson@sltrib.com

Twitter: @PamelaMansonSLC

 

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