Court panel orders testimony of hit man Vincent Smothers, who confessed
Says Smothers’ confession “was the most significant evidence in defendant’s actual innocence proceeding”
Blames Pros. Kym Worthy’s office for not granting Smothers immunity to testify
By Diane Bukowski
September 27, 2013
DETROIT – A Michigan appeals court ordered Sept. 26 that admitted hit man Vincent Smothers and his attorney be allowed to testify on behalf of Davontae Sanford, currently serving a sentence of 37 to 90 years for four murders on Runyon Street on Detroit’s east side in 2007.
Sanford, 14 at the time, confessed to the killings during a lengthy police interrogation, without an attorney or parent present. The case has drawn international publicity.
Smothers, serving 50-100 years for 10 other drug-related killings, said in a sworn affidavit and in an AP interview last year that he and an accomplice committed the murders on Runyon, and that Sanford was not involved. He earlier confessed the killings to Detroit police, but Wayne County Prosecutor Kym Worthy did not charge him or his accomplice, and refused to drop charges against Sanford.
“I’ve been crying tears of joy all day,” Sanford’s mother Taminko Sanford-Tilmon said. “I’m overwhelmed. We’ve been praying for this for so long with so many people, and God is now moving. But it’s just the beginning, because we have to go back in front of the same judge and replay it all over again.”
Sanford-Tilmon said she has not talked to her son yet, but talked to him just two days ago, after he came out of “the hole.” Sanford has experienced ongoing harassment from the guards at the Ionia Correctional Facility, his mother has said. Sanford-Tilmon has five children and just married her long-time fiancé Jermaine Tilmon in July.
Wayne County Circuit Court Judge Brian Sullivan refused to allow Sanford to withdraw his guilty plea on a claim of innocence after Smothers’ confession. The Appeals Court sent the case back to him for an evidentiary hearing, while retaining jurisdiction. The hearing ended up lasting two years. Sullivan repeatedly denied defense motions to allow Smothers or his attorneys to testify, discovery on Smothers’ other cases, and expert testimony.
“This is a big victory for Davontae,” Sanford’s attorney Kim McGinnis, assigned by the Michigan State Appellate Defenders Office (SADO) to the case, said.
“The appeals court vacated the trial court’s decision and sent it back with pretty clear instructions on what testimony should be permitted. It remanded it so that Smothers would have the opportunity to testify, and it said a much lower standard of proof is required to approve Davontae’s request to withdraw his guilty plea than what the trial judge wanted. We can also get into Smothers’ files now on his other cases to show the clear correlations with the Runyon Street killings, and produce expert testimony on false confessions and interrogations.”
The Appeals Court, composed of Judges Mark T. Boonstra, David H. Sawyer, and Christopher M. Murray, heard oral arguments in the case Aug. 6 of this year. Judge Sawyer remarked during the hearing, “There is a chance that we have an innocent man in jail right now,” countering Judge Murray’s evident reluctance to find that Judge Sullivan had “abused his discretion.”
The panel ruled in summary, “[W]e vacate the trial court’s order denying defendant’s motion to withdraw his guilty plea and remand for further proceedings regarding the admissibility of Dr. Fulero’s and Ira Todd’s proposed expert testimony on false confessions and police interrogation techniques . . . and for reconsideration of defendant’s motion to withdraw his guilty plea after affording defendant an opportunity (1) to present attorney Gabi Silver’s testimony regarding Smothers’ statements to her concerning the Runyon Street homicides . . . (2) to present expert testimony that satisfies the remaining requirements of MRE 702 . . . (3) to obtain discovery of Smothers’s other homicide case files and to present admissible evidence revealed by that discovery . . . .and (4) allow Smothers the opportunity to testify if he does not exercise his rights under the Fifth Amendment.” (Click on Davontae Sanford appeals decision 9 26 13 for full opinion.)
By press time, Prosecutor Worthy’s office had not responded to a request for a statement on whether she would now drop charges against Sanford, as she just did in a similar case, that of Raymond and Thomas Highers.
The two brothers, who are white, served 25 years in prison for murder until new witnesses came forward saying they saw a group of young Black men enter the victim’s home just before the murder, then heard a gunshot. The brothers were granted a new trial, and expressed shock and elation when Worthy dropped the charges Sept. 25.
“Just as we did 26 years ago, we firmly believe in the evidence in this case,” Worthy said in a statement on the Highers case. “We have worked diligently to bring this case to trial. With the passage of time, it is an unfortunate reality that this case cannot be put back together, and we must dismiss it. Sadly, in this case, justice was not done.”
Roberto Guzman (shown in top photo, center bottom) a paralegal who has supported the Sanford family with rallies and other actions, said, “We need to push the argument that vis a vis the Highers brothers, the evidence of Devaontae’s innocence is much more overwhelming than the evidence of the Highers’ innocence!”
Sanford has also received support from the family of Aiyana Jones, killed by Detroit police at the age of 7 in 2010. They demonstrated with the Sanford family in front of the Frank Murphy Hall in downtown Detroit earlier this year, demanding justice for Davonate, Aiyana, and her father Charles Jones, who is awaiting a murder trial based largely on statements of “jail-house snitches,” according to his attorney.
McGinnis, now a Judge in the Pueblo of Pojoaque Tribal Court in Santa Fe, New Mexico, said she hoped that Worthy would at least allow Sanford to plead “not guilty” and go to trial without further evidentiary hearings in front of Sullivan.
“We’ll be delving into an investigation of all of Smothers’ other crimes, so it will be a little while before we get back to court,” McGinnis said. She said she still must confer with her colleagues in SADO on trial strategy.
In their ruling, the appeals court did find that Judge Sullivan abused his discretion in a number of instances, after first requiring that “the trial court shall assess the evidence of actual innocence and exercise its discretion in determining whether that evidence is sufficiently compelling that it would be an abuse of discretion to not allow defendant to withdraw his plea.”
The Court said additionally, “We agree with defendant, however, that the trial court abused its discretion by not allowing Smothers’s counsel, Gabi Silvers, to testify regarding Smothers’s statements to her pursuant to Smothers’s waiver of the attorney-client privilege.” It said Michigan Rules of Evidence allow hearsay testimony in such circumstances.
The court also blamed the prosecution, stating, “The error in excluding Silver’s testimony was not harmless. . .The reliability of Smothers’ confession to the Runyon Street homicides was the most significant evidence in defendant’s actual innocence proceeding. The trial court was not convinced that Smothers’s statements to Williams were sufficiently clear and convincing to establish that Smothers, not defendant, was the perpetrator. But neither Williams nor any other officer thoroughly questioned Smothers about the Runyon Street homicides. There is a high likelihood that Silver’s testimony would have provided more details of Smothers’ purported involvement in the Runyon Street homicides.”
It also said the Prosecutor’s office could have offered Smothers immunity in return for his testimony, in order to allow his cross-examination.
“The prosecutor’s fairness argument is somewhat disingenuous because the prosecutor ould avoid any perceived disadvantage by petitioning for use immunity under MCL 767.6,” the court said. “ . . . .However, the prosecutor’s own unwillingness to request use immunity for Smothers’s testimony, despite the prosecution’s position that Smothers was not involved in the Runyon Street homicides, is the barrier to cross-examination of Smothers.”
During the course of the evidentiary hearing, Smothers twice invoked his Fifth Amendment rights on the advice of his attorney. But later, he agreed to testify regardless of the consequences in a sworn affidavit and an interview with AP reporter Ed White.
During that interview, Smothers said, “He’s not guilty. He didn’t do it. . . .I understand what prison life is like; it’s miserable. To be here and be innocent – I don’t know what it’s like. He’s a kid, and I hate for him to do the kind of time they’re giving him.”
According to earlier accounts, Smothers decided to voluntarily confess to 12 hit killings, most of them drug-related. He said he changed his mind about his way of life after killing Rose Cobbs, a teacher. She was the wife of a Detroit police officer who commissioned the hit outside a CVS pharmacy in Detroit while the officer was inside. The officer, who later allegedly hanged himself, was said to be having an affair with another woman.
Smothers told White in the interview, “I understand people think I’m a monster. Over the course of my young adulthood, I developed a hard heart where people didn’t matter. When you grow up in the city there’s just certain facts of life.”
For further information on the case, contact Attorney Kim McGinniss at email@example.com.
My concern is that DA’s are more concerned about covering their butts than justice. Everyone makes errors. It is how we correct them that shows real character. Why would the DA champion the white kids and not his case? Hmmm. Let’s look at the realities of a system that does not really care which black kid you prosecute as long as you convict somebody. It assumes that if you had ANY prior involvement with the justice system you are an interchangeable suspect. These cases are coming to light through advances in DNA and the internet age. It corroborates what people of color have been saying for years. American Justice is not colorblind. It locks more people then any other nation. Crimes against Native American women are not prosecuted and incarceration in the black community is now normal. How can prosecutors sleep at night knowing full well the person in custody or executed did not commit the crime? A moment to pause for all the wrongfully convicted whose overwhelming evidence would have cleared them. So worried about opening the floodgates of appeals? Then perhaps you examine your process and who it really serves.
I saw this story on TV, it was hard to watch. My heart went out to him and his family. I cried like I was there with him when he got out of jail.
I hope Davontae Sanford receives justice as well as my son and brother. Its a shame the system fails to many of us.
This is excellent news and news we had been waiting for for a long time. Although the result was a bit different than what we fought for (that is, that the court would order the trial judge to allow Smothers to take the stand and confess on the record), it is still a win for Davontae because now we will be able to hear for the first time Smothers’ attorney give his confession to her in open court, with all the details and specifics of the murders that only Smothers knew. The court’s ruling ordering the trial judge to also allow an expert to testify about false confessions and police tactics is a favorable ruling too for Davontae because that issue was aptly argued by his attorney in yet another reason that his confession and resultant plea should have been withdrawn. These issues are also preservation issues for appeals to move along in the federal courts, if necessary. But what is necessary is for Kym Worthy to confess error in extracting a bogus plea based on a falsified confession and set Davontae free. She has the power, under the law, to file a confession of error and stop wasting more of our tax money and limited resources on frivolous appeals.
I agree with all you said, Roberto, except for the fact that the order DOES allow for Smothers to take the stand if he waives his 5th Amendment rights, which I understand he has been willing to do. It’s in the last sentence of the opinion on page 10; I missed it at first too,