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Utah death row inmate Douglas Carter has a new evidentiary hearing to look forward to in light of the Utah Supreme Court’s recent opinion in his case. The opinion—which stems from Carter’s appeal of a post-conviction court’s summary denial—is a model of fairness. In the face of strong, undisputed evidence the State failed to disclose its two key witnesses received both substantial financial benefits and direction about how to testify from police and prosecutors, the post-conviction court nonetheless denied the defense’s Brady and Napue claims on materiality grounds. Reversing, the Utah Supreme Court held it was improper for the lower court to summarily deny these claims, and indicated the suppressed information very well could have altered the result of Mr. Carter’s trial in both the guilt and penalty phases.        

Mr. Carter faces the death penalty for the February 1985 murder of Eva Olesen in Provo, Utah. No physical evidence linked the defendant to the offense. The key evidence against him is (1) a questionably-acquired confession—a challenge to which the Utah Supreme Court previously denied in part because of corroborating testimony from the two key witnesses—and, (2) the testimony of those very witnesses, Epifanio and Lucia Tovar. The Tovars testified that Carter admitted his guilt to them and actually showed them how he had committed the murder with a physical reenactment. When asked at trial if they had been given any benefits for their cooperation with the State, the Tovars said they only had received $14 witness fees. Then, shortly, after the trial, they could not be located.

Over two decades later, in 2011, defense lawyers for Mr. Carter tracked down the Tovars and obtained damning information about their testimony.     

In the[ir] declarations the Tovars assert under “penalty of perjury” that (1) they were threatened by police with deportation, the removal of their son, and prison if they did not cooperate in the case against Carter, (2) they felt pressured to make untrue statements, and (3) they were explicitly instructed to lie under oath about substantial financial benefits provided to them by the police and previously undisclosed to defense counsel.

The Tovars’ 2011 declarations speak to an unbending reality in the criminal justice system. Key witnesses are often threatened, coached, and told to deny that they receive any benefits from law enforcement. Why? It seems obvious. Witnesses who experience these sorts of pressures and are provided powerful incentives are more likely to have their credibility questioned by jurors. In this case,    

[Mr. Tovar] also declared that the police twice moved his family to a different apartment and paid the Tovars’ rent, which was somewhere in the neighborhood of $400 per month. The police also paid Mr. Tovar’s phone and utility bills and would deliver groceries to the Tovars. . . . Mr. Tovar states that the police told him and his wife not to say anything at trial about the payments for rent and other living expenses if asked about benefits received from the police.

Would jurors perceive a difference between many hundreds of dollars a month and $14?

The district court that denied Mr. Carter’s post-conviction claims adopted an unusual perspective. It held the police may have made payments to the Tovars in order to protect them from Mr. Carter—so evidence of massive witness benefits could have been damaging to the defendant rather than helpful impeachment of the State’s most important witnesses. The Utah Supreme Court did not buy this eccentric position, and instead sent the case back for an evidentiary hearing on materiality. After concluding its lucid review of the facts and allegations, the state high court held: “It is clear then that the Tovars’ testimony was crucial at both the guilt and sentencing phases of Carter’s trial.”

It is not clear whether the district court will take the Utah Supreme Court’s firm and fair ruling to heart. Any court capable of articulating the position that State benefits given to testifying witnesses may actually prove the defendant is dangerous or guilty could undoubtedly come up with more nonsense the second time around. For that reason, one must hope that the judiciary is not simply engaged in some sort of polite tennis match to clean up a sloppy ruling. Instead, the Utah Supreme Court should remain vigilant. Due process, fairness, and the propriety of a potential execution are all at stake here.

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