Claiming that Utah death row inmate Douglas Stewart Carter's conviction and death sentence were secured "through the use of false testimony and egregious police misconduct," defense attorneys are seeking to have Carter's conviction thrown out, or at least have his death sentence overturned.
The latest actions in Carter's case come as Utah lawmakers are debating whether to do away with the state’s death penalty. The "damning revelations," as the Utah Supreme Court called them, are raising concerns about whether Utah got Carter's case wrong — and stirring debate about whether Utah's own justice system is insulated from capital punishment issues other states have grappled with, as some death penalty supporters have argued.
Carter, 66, was convicted of aggravated murder, a capital offense, in 1985 for the killing of Eva Olesen, 57, who was stabbed multiple times and shot during a home invasion robbery on Feb. 27, 1985, at her Provo home.
Much of Carter's conviction was based on the testimonies of his friends, Epifanio and Lucia Tovar, who said in court that Carter had bragged about the murder, as well as a written confession from Carter that he later claimed was coerced.
He appealed his sentence in 1992, but another jury upheld the death penalty. By that time, however, the Tovars had disappeared and did not testify at Carter's resentencing.
But in 2011, Carter's defense attorneys successfully tracked down the Tovars in Mexico. At that time, they claimed that they lied on the witness stand during the original trial and were pressured by police to testify against Carter. They claimed police paid for their rent and threatened to deport their son if they did not testify against him.
In 2019, the Utah Supreme Court called the claims from the state’s star witnesses “damning revelations” and ordered that Carter receive a new evidence hearing in 4th District Court.
That hearing was held in November. On Jan. 31, Carter's defense team submitted their written post-hearing brief to the court asking for either a new trial or new sentencing hearing.
In their 95-page court filing, Carter's attorneys again point to what they called "egregious" police misconduct that included "direct cash payments to, and repeated threats against the prosecution's principal witnesses ... Epifanio and Lucia Tovar. The Provo police employed a carrot and stick strategy: paying the Tovars' rent and other living expenses, which made them financially dependent on the police, while also regularly reminding the Tovars that police had the power to destroy their lives by arresting them, having them deported, or taking away their young child.
"The Tovars — the main witnesses against (Carter) at the guilt phase who provided key facts supporting the death sentence — were paid thousands of dollars by the Provo Police Department prior to their testimony and testified falsely," the brief alleges.
Former Provo officers who were assigned to the Carter case, however, denied during the November evidentiary hearing that they ever threatened the Tovars, according to the brief, although they did not deny giving the Tovars money. The state has argued in the past that the Tovars' inconsistent statements could stem from fear of retaliation from Carter, or that they now want to help Carter.
Defense attorneys countered that argument by stating, "The state's allegation that the Tovars had or have an ulterior motive to help Carter is entirely unsupported by any evidence."
The Utah Attorney General's Office has until mid-March to file a response to Carter's brief.
According to declarations obtained from the Tovars, from April to December 1985, "Provo police officers gave them monthly cash infusions of roughly $400 for their rent, moved them into two new apartments, paid their utility bills, and delivered groceries, toys and a Christmas tree. Significantly, the Tovars' declarations are corroborated by new declarations from former members of the Provo Police Department who were involved in the Olesen case."
A former Provo police officer testified at the evidentiary hearing in November that the entire department was "emotionally involved" with the murder case because then Chief Swen Nielsen was related to the victim, according to the defense brief. The former officer testified that he was to "make certain the Tovars were happy" so they would not flee Provo, according to court documents. That included payments to the Tovars for rent.
"The lack of documentation for thousands of dollars of payments made to the Tovars indicates that there was a plot to conceal these payments from the beginning," defense attorneys wrote in their court filing.
The filing also notes that the Tovars' testimony was essential to the case since "to this day, no direct physical evidence links Carter to the crime for which he was sentenced to death."
The defense contends if they had known about the payments at trial, they "could have portrayed the Tovars' testimony as carefully sculpted by the police and prosecution over the course of months," the brief states. At the very least, the defense argues that if this evidence had been presented at the sentencing phase, they believe at least one juror would have voted against the death penalty. A jury must be unanimous when sentencing a person to death.
"It is likely that this evidence would have turned the tides for the jury at sentencing, resulting in at least one juror voting for life," the brief states.
Carter's defense team is also alleging Epifanio Tovar lied when he testified on the witness stand during the original trial that Carter told him his intent on the night of the murder was to "rape, break and drive." Furthermore, the trial prosecutor did not speak up and correct the testimony he knew was false, according to the defense. The brief states that after Tovar was located and deposed in 2011, he said at that time that he "felt compelled to lie to the jury about the 'rape, break and drive' comment because police told him they would arrest him and deport his wife and take his son away."
Police claimed in court documents that they never threatened the Tovars. But Carter's defense team believes otherwise.
Defense attorneys are also questioning Carter's confession, which was not recorded and was written by a Provo police officer who took dictation from Carter.
"Unlike almost all of the other witnesses interviewed by Provo police, Carter's confession was not recorded via audiotape," the brief states. "Carter's counsel also pressed (the officer) about the fact that he had dictated Carter's written statement using (the officer's own) characterization of what he says Carter told him, rather than having Carter write out his own statement."
Defense attorneys contend that Carter's confession was coerced because, at the time, he was being pressured by police in relation to the arrest of a friend.
"Carter's confession was anything but a smoking gun for the prosecution. There was evidence Carter's signed statement was coerced, the interrogation was not audio recorded, the signed statement was dictated using (the officer's) and not Carter's words, the dictation tape was destroyed, and the signed statement did not contain key incriminating statements that (the officer) testified Carter made. As a result, Carter's confession could not stand on its own," the defense argues in its brief.
The court filing concludes by stating: "When the state seeks the death penalty, its actions at trial and sentencing should be above board. The actions of the state, in this case, were most assuredly not. Carter respectfully requests this court vacate his conviction. In the alternative, Carter requests this court vacate his death sentence."
Contributing: Katie McKellar, Deseret News