Tuesday, 25 November 2008

Prosecution used snitch testimony to get a DP conviction - The innocence case of Wayne Tompkins

Kathy Stevens’ deposition occurred on June 12, 1985.
Kenneth Turco’s deposition occurred on July 15, 1985.

At that
time, he said that in late June, 1985, he first talked to Wayne
Tompkins about his case, and that about a week and a half before
the deposition, Mr. Tompkins confessed to him (Turco depo. at 8).
Thereafter, the prosecutor located a jail house informant,
Kenneth Turco, who claimed that Mr. Tompkins had confessed to the
murder.10 Mr. Turco’s testimony so matched Kathy Stevens’ story
that defense counsel argued that the informant had obtained
access to Ms. Stevens’ deposition or statement and used it to

Kenneth Turco was serving a 30-year prison sentence for
burglary and grand theft (R. 301-02). Turco also had been
previously convicted of grand theft, forgery, and burglary (R.
302). Turco acknowledged that there was a confidential informant
system in prison and he had been part of that for the last 4 or 5
years, and that he was “trustworthy” (R. 317). When he was in
jail with Mr. Tompkins, he had just entered a guilty plea on an
escape charge (R. 303). He was waiting to be sentenced (R. 304).
While in the jail, he made contact with Wayne Tompkins after he
“was placed in the cell with him” (R. 305).

After his contact

with Mr. Tompkins, Turco contacted prosecutor Benito, who visited
him personally, and promised only “my safety in the jail and that
[he] would tell the judge at my sentencing hearing that I
cooperated and I came forward and testified in a murder trial”
(R. 311).
Turco testified that he was not hopeful that his testimony
would help him on the escape sentence because he would still be
doing time anyway (R. 315). However, it had crossed his mind that
his testimony would help him (Id.).
In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney,
testified that he took over Turco’s prosecution two weeks after
Wayne Tompkins’ sentence of death. He explained, “I walked down
to court. I was about to offer Mr. Turco a negotiation. I got in
here and I looked at Mr. Turco and I said, ‘This guy showed a lot
of guts coming forward as a jailhouse informant to testify as to
what Mr. Tompkins told him.’” (PC-R. 235). So, Benito “got up and
walked down here and announced the case, and said, ‘I nol-pros
it.’” A grateful Turco “looked at [Benito] like he had just been
handed his first bicycle at Christmas.” (PC-R. 236).
mold his testimony.11
Following Kathy Stevens report that she witnessed Mr.
Tompkins’ strangling Lisa at around 8:30 AM, Mrs. DeCarr was able
to remember that contrary to her earlier statements that she had
left the house before 8:30 AM, and at that time Mr. Tompkins was
still there, as was Lisa. This statement contradicted Mr.
DeCarr’s prior statements to police. Previously, her recollection
was that Mr. Tompkins left to take one of her sons to school and

Mrs. DeCarr’s shifting the time line of her account was
necessary because her previous story made Kathy’s story
impossible (between 8:00 AM and 9:00 AM, Barbara had said she was
home and Mr. Tompkins wasn’t and that he did not return to the
house until after 10:00 AM, while Kathy said before going to
school at 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa
on the couch).
Although it presented eight witnesses at trial, the State
advised the jury that “the key testimony will come from three []
witnesses”--Barbara DeCarr (the victim's mother), Kathy Stevens
(the victim’s best friend), and Kenneth Turco (the jailhouse
snitch)--and that “[t]hose three will provide the overwhelming
evidence” that Mr. Tompkins killed Lisa DeCarr on the morning of
March 24, 1983 (R. 108).
The jury did not learn of the information provided Mrs.
DeCarr and Wendy Chancey to a police officer regarding their
observations of Lisa on the afternoon of March 24, 1983, which
was inconsistent with the testimony of Kathy Stevens, Barbara
DeCarr, and Kenneth Turco.
According to an
undated typed statement of Mrs. DeCarr that was provided to the
police before Kathy Stevens claimed to have witnessed Mr.
Tompkins strangling Lisa. In that statement, Mrs. DeCarr said,
“Wayne had taken Jamie (my youngest son) to school just before
8:00 a.m. and then went to his mother’s house for breakfast and
coffee. He stayed at his mother’s house until approximately 10:00
a.m. when he left to get some newspapers to pack dishes with.”
wasn’t home when she left after 9:00 AM.12
At trial,13 Wendy Chancey was unavailable and defense
counsel was precluded from cross-examining Mrs. DeCarr regarding
the statements attributed to her in the March 24, 1983, police
report.14 The State’s theory of the case was outlined in its
opening statement. According to the State, Wayne Tompkins and

15At the 1989 hearing, the trial prosecutor, Mike Benito,
confirmed that his theory was that the offense occurred at about
9:30 or 10:00 a.m. on that date (PC-R. 87).

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