After 40 Years, Conviction Vacated

Police and prosecutor misconduct have led the Utah Supreme Court to vacate a conviction and sentence secured in a 1985 conviction

The constitutional violations that took place during Carter’s trial and resentencing are serious. It is rare to see a case involving multiple instances of intentional misconduct by two different police officers—one of them the lead investigator on the case—and a prosecutor. But that is what the postconviction court found here. Two officers instructed important prosecution witnesses to lie not only about receiving benefits from the police, but also, in Epifanio’s case, to fabricate a statement intended to show that Carter harbored a premeditated intent to commit rape on the night of the murder. Epifanio went along with the coaching and perjured himself repeatedly. And the prosecutor stood by while Epifanio denied receiving any benefits, knowing the testimony was false, and did nothing to correct it. The postconviction court granted Carter’s petition, vacated his conviction and sentence, and ordered a new trial because it determined these violations prejudiced Carter within the meaning of the PCRA. Its “confidence [was] undermined in both Carter’s conviction and sentence.” So is ours.

We affirm.

Facts

In 1985, Douglas Carter was convicted and later sentenced to death for the murder of Eva Olesen in Provo, Utah. There was no physical evidence tying Carter to the crime scene. But the investigation turned up other evidence pointing to Carter, and Carter ultimately signed a confession to the murder. At trial, two witnesses for the State—Epifanio Tovar and his wife Lucia— provided important testimony corroborating aspects of Carter’s confession. They testified that they had seen Carter just before and after the murder, and that Carter had told Epifanio he murdered a woman and showed Epifanio how he had done it.

Decades later, however, the Tovars signed sworn declarations stating that during the investigation and prosecution of Carter, the police had threatened them, pressured them to make untrue statements, and instructed them to lie at Carter’s trial about significant financial support they had received from the police. Based on these new revelations, Carter petitioned for postconviction relief under the Postconviction Remedies Act (PCRA). And the postconviction court in the Fourth Judicial District held an evidentiary hearing on Carter’s petition.

After the evidentiary hearing, the court found that Carter’s trial and sentencing were tainted by serious misconduct by the lead prosecutor, the lead investigator, and another police officer who was responsible for “tak[ing] care of” the Tovars. The postconviction court found that the lead investigator suborned perjury, telling Epifanio to falsely deny receiving financial assistance from the police and to falsely claim that Carter said he was going out to “rape” someone on the night of the murder. The other officer also instructed the Tovars to lie about receiving financial assistance from the police.

And the court found that Epifanio obliged. He lied to the jury on both points. He falsely testified that just before the murder, Carter said that he was going to go out and “rape, break, and drive.” Also, when Epifanio was asked whether the police had provided him or his family with any financial assistance, he falsely claimed that he and his wife had received nothing more than a $14 witness fee. In truth, the postconviction court found that the Tovars had received about $4,000 in financial assistance from the police in the months leading up to trial.

The prosecutor did not disclose any of this to the defense. And even though the prosecutor knew that the Tovars had received financial help from the police, the prosecutor did not correct Epifanio’s false testimony on this point.

(Mike Frisch)