February 2, 2018
Attorney General Cynthia Coffman
Office of the Attorney General
Colorado Department of Law
Ralph L. Carr Judicial Building
1300 Broadway, 10th Floor
Denver, CO 80203
Dear Attorney General Cynthia Coffman:
We are forty-six professors of law at the University of Denver and the University of Colorado in Boulder. We write to urge you to recognize Mr. Clarence Moses-EL as innocent, and to approve the compensation to which he is entitled under Colorado law.
Mr. Moses-EL, an African-American man, was accused and convicted of rape. Even after DNA evidence that would have proven his innocence was destroyed by agents of the State you represent, Mr. Moses-EL was granted a new trial after serving more than twenty-eight years in prison and was subsequently exonerated following a full jury trial.
Now, Mr. Moses-EL is entitled to compensation for the wrongs he has suffered. Colorado’s Compensation for Certain Exonerated Persons statute, Colo.Rev.Stat. §§ 13–65–101, 13–65–102, 13–65–103, provides authority for you to permit compensation without a protracted, expensive, and embarrassing civil trial by simply certifying to a trial judge that there remains no real question as to the “petitioner’s actual innocence.” Mr. Moses-EL’s circumstances present precisely such a case. It strains public confidence for the State of Colorado to withhold consent to the statutorily-authorized public compensation he is owed.
The Supreme Court, the American Bar Association, and the Colorado Bar Association have instructed that prosecutors are ministers of justice and must “seek to reform and improve the administration of criminal justice” such that when “injustices…come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.” A refusal to concede innocence and allow for compensation in this case does the opposite. Rather than stimulating the remedial efforts necessary for Mr. Moses-EL to get what is left of his life back in order, the State of Colorado has chosen to impede and obfuscate justice.
As law professors, we treat as one of our most important tasks teaching future lawyers about the importance of acknowledging errors, and making adjustments accordingly. We do not, of course, mean to imply that the present circumstances are your fault, nor are we interested in assigning blame. But it is time for the State of Colorado to admit the grievous mistake it made when it prosecuted and convicted a man who has since been found not guilty by a jury of his peers. The National Registry of Exonerations, which lists Mr. Moses-EL as among the exonerees in this country, provides insight into how serious the problem of wrongful conviction is in our society. The Registry reports that 2,161 persons have been exonerated in this country, far fewer than the number of persons whose convictions have been set aside based in part on concerns about innocence. As we approach 30 years since the first DNA exoneration in this country, and the birth of the innocence movement, it a sad irony that your office regards the evidence of innocence in this case as inconclusive when the very DNA evidence that would have conclusively exonerated Mr. Moses-EL in your view has been destroyed by the same system that now withholds compensation. Even without that DNA evidence, the evidence that does exist demonstrates Mr. Moses-EL’s innocence.
The facts of this case have been adequately recounted in the media and are familiar to you. The claims of guilt based on a victim’s dream and the many unfortunate events that contributed to Mr. Moses-EL spending nearly three decades in prison, away from his family, are travesty enough. Still, a word about race and exonerations is warranted. As you know, African Americans make up approximately 13% of the U.S. population, but they comprise 47% of the exonerees, and African Americans are 3.5 times more likely to be wrongfully convicted of sexual assault than are white people. Moreover, the leading cause of wrongful convictions for sexual assault, as in this case, is misidentification.
In our society, persons who are not yet convicted of a crime are presumed innocent. And those who are acquitted retain that presumption. Mr. Moses-EL’s exoneration provides your office an opportunity to reflect on and demonstrate how seriously we take exonerations, particularly against the backdrop of the racial injustice threaded throughout our criminal justice system. We take to heart the duty to teach our students about the many laudable features of Colorado’s justice system. Some of us have faced questions from our students about this case and about why your office is refusing to allow Mr. Moses-EL compensation, and about whether your actions in this matter are symptomatic of what Professor Daniel Medwed has called “the Prosecution Complex,” a condition that blinds our public prosecutors to the possibility of errors and injustice in our criminal system.
We hope you reconsider, show leadership, live up to your duty as an officer of the legal system and instruct your office to stop stone-walling Mr. Moses-EL’s efforts at compensation. In the name of justice, we urge you to inform the district court that, as was obvious to the jurors who have already acquitted him, Mr. Moses-EL is innocent.
Roberto L. Corrada
César Cuauhtémoc García Hernández
José Roberto Juárez, Jr.
Tamara L Kuennen
Margaret B. Kwoka
Michael R. Siebecker
Michael D. Sousa