United States District Court, D. Colorado
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
LEWIS T. BABCOCK, District Judge.
This case is before me on Defendant Mark Jordan's Motion for a New Trial Based on Newly Discovered Evidence of Actual Innocence [Doc # 658]. Following a four-day evidentiary hearing, the parties' submissions of proposed findings of fact and conclusions of law, oral argument on the motion, and review of the record, I make the following findings of fact and conclusions of law:
I. Findings of Fact
A. Defendant's Trial and Conviction for the Murder of David Stone
1. On June 3, 1999, David Stone died after being stabbed three times while on the recreation yard of the United States Penitentiary in Florence, Colorado ("USP Florence"). United States v. Jordan, 485 F.3d 1214, 1216 (10th Cir. 2007). Five years after the stabbing, Jordan was charged with the murder of Stone and three related offenses. Id. at 1217.
2. At trial, Gary Collins, an inmate on the yard at USP Florence on the day of the stabbing, testified that he saw Jordan stab Stone in the back and that Jordan was oddly dressed that day in a khaki shirt and pants despite the heat. Id. at 1216. Collins further testified that after the stabbing, Stone took off running, and Jordan ran after him. Id.
3. Tyrone Davis, another inmate on the yard at USP Florence on the day of the stabbing, testified at trial that he saw Jordan standing by Stone and pushing or punching Stone in the back side in an underhanded manner. Id. Davis further testified that Stone then began running with Jordan giving chase. Id.
4. Norvel Meadors, an assistant warden at USP Florence, testified at trial that he observed two prisoners that he could not identify involved in a chase across the recreation yard from an overlooking patio and radioed a compound officer to direct the inmates to cease their actions. Id. at 1217. Meadors noticed that the first inmate was wearing shorts and no shirt and the pursuing inmate was wearing a khaki shirt and pants. Id. Meadors further testified that the inmate wearing a khaki shirt and pants stopped running but that the inmate in shorts continued running until he eventually collapsed to the ground. Id. Meadors observed the inmate wearing a khaki shirt and pants throw an object onto the roof of the housing unit and then sit down at a picnic table. Id. Meadors then saw another officer approach this inmate at the picnic table, pat him down, and take him into custody. Id.
5. Benjamin Valle, the USP Florence officer who responded to Meadors radio call, testified he observed two inmates running across the recreation yard with about 15 yards between them. Id. Valle testified that he saw the pursuing inmate stop, walk back towards a housing unit, throw something up on the roof of the housing unit, and walk over to a bench and sit down. Id. Valle searched this inmate and took him into custody. Id. This inmate was Jordan. Id.
6. A third corrections officer, Fare Finns, Jr., observed the same incidents on the recreation yard in nearly identical detail to Valle. Id.
7. A video surveillance camera from the day of Stone's stabbing showed, among other things (1) four inmates, including Jordan and Stone sitting at a concrete bench approximately 11 minutes before the stabbing; (2) Jordan approaching where Stone sat immediately before the stabbing; and (3) the subsequent chase between Stone and Jordan. Id.
8. Yet another prison official asked Jordan about a spot of blood on his left arm. Id. Jordan attributed the blood to Stone running into him and claimed he was trying to help Stone. Id.
9. Prison officials retrieved an 11-12 inch, bloody, homemade knife or shank from the roof of the housing unit. Id. Stone's DNA was found on the shank. Id. There was additional DNA on the handle of the shank but its origin could not be determined. Id. No fingerprints were found on the shank because its handle had been wrapped in cloth. Id.
10. Hasham Erzouki, a physician assistant at USP Florence on the day of Stone's stabbing, testified that he examined Jordan that evening in the Special Housing Unit ("SHU"). Erzouki described Jordan as smiling and proud and testified that Jordan made a V sign to another inmate in the area and said, "Guy, I get him out of your way." Trial Transcript ("TT"), pp. 640.
11. Days before Stone's stabbing, Jordan wrote a letter to his mother in which he sated that "... it looks like I'm finally going to have my transfer soon;" that he "would rather be locked in [his] cell not having to deal with the pieces of scum they have [him] in here with;" and that he was "determined" to serve his sentence his way, "alone." TT, pp. 560-2.
12. At trial, Jordan did not dispute that (1) he handled the shank used to stab Stone; (2) that he was the inmate Meadors and Valle saw running across the prison yard; and (3) that he threw the murder weapon on the roof of the housing unit. Id. at 1219-20. Jordan denied that he killed Stone and claimed that Sean Riker, another inmate on the prison yard at the time of the stabbing, was the assailant. Id. at 1220.
13. Certain evidence that Jordan sought to introduce to show that Riker murdered Stone was excluded from the trial. Id. at 1218. This evidence consisted of (1) evidence that Riker possessed a shank nearly identical to the one used to murder Stone six months prior to the murder; (2) evidence that Riker offered false statements to investigators of Stone's murder; (3) evidence that Riker was investigated by prison officials as a possible suspect in Stone's murder; and (4) evidence of a blood-stained glove on the bleachers where Riker and other inmates went after the stabbing. Id. at 1220. The exclusion of this evidence was upheld on appeal. Id. at 1218-1224. Other evidence relating to Riker was admitted at trial, and Jordan's trial counsel raised the possibility that Riker was responsible for Stone's murder. Id. at 1220, 1223-4.
14. Evidence of statements that Stone made identifying Jordan as his assailant was also excluded from the trial. Doc #107.
15. On August 9, 2005, a jury convicted Jordan for the murder of Stone and on the three related charges. Jordan, 485 F.3d at 1217.
B. Jordan's Newly Discovered Evidence
16. Jordan's Motion for a New Trial is predicated on two items of newly discovered evidence: (1) Riker's statements in a letter to the trial prosecutor and in a signed declaration that he murdered Stone; and (2) DNA testing arguably linking Riker to the murder weapon.
1. Riker's Statements and Testimony
17. In a letter to the trial prosecutor dated October 15, 2012, Riker stated:
I am the person that killed David Stone.
I lied to you for obvious reasons.
I threatened Gary Collins and that bony Negro to testify as they did. Mark Jordan is innocent. I stabbed David in the back and passed the shank to Mark.
18. At the time he wrote to the trial prosecutor, Riker was serving a sentence of over 200 years in Wisconsin state prison for abusing his wife, sexually abusing her children, and various other crimes. June 26, 2014 Hearing Transcript ("JHT"), pp. 7, 115; August 7, 2014 Hearing Transcript ("AHT"), pp. 117-18, Ex. 15. Riker acknowledges that he would be better off in federal prison with a murder conviction than in state prison on his current sentence. JHT, pp. 115-6.
19. After his state court conviction but prior to his October 15, 2012 letter, Riker also wrote two letters to Jordan's prior counsel, Donald Bound, Esq. Ex. 101 & 102. In the first letter, Riker stated that Jordan was innocent in the murder of Stone and that he was ready to confess. Ex. 101. But in the second letter, Riker stated that Jordan had killed Stone. Ex. 102. Riker attached what he labelled an "affidavit" to the second letter in which he claimed that Jordan had murdered Stone in a jealous rage after seeing Stone kiss another inmate. Id.
20. In November of 2012, Riker sent two letters to Laura Rovner, an attorney and law professor who had represented Jordan in a civil matter. Exs. 104 & 105. In the first letter, Riker stated, "I am trying to set [Jordan] free by claiming responsibility for the crime he is serving life for." Ex. 104. In the second letter, Riker told Ms. Rovner:
I am trying to set [Jordan] free and trade places w/him. I want to go to the feds.
I am serving a life sentence for crimes I did not do. Just like [Jordan]. Karma has played a role in my demise ...