‘JUST MERCY’, starring Michael B. Jordan and Jamie Foxx in a wrenching account of a wrongfully convicted man freed by Atty. Bryan Stevenson and the Equal Justice Initiative. Many more, like Carl Hubbard, languish in Michigan and U.S. prisons.
AP JAMES GONZALES DROVE ONLY KEY PROS. WITNESS OFF STAND, ORDERING ARREST FOR PERJURY AFTER RECANTATION AT TRIAL
Hubbard’s 3-day bench trial in front of Judge Richard Hathaway in 1992: no gun or other forensics evidence, no eyewitness testimony presented
Police, prosecutors never investigated eyewitness statement naming a different perpetrator
Trial lawyer Ronald Giles, now a judge, swore in affidavit that recanted testimony of pros. witness Curtiss Collins was key to conviction
Hubbard’s latest appeal currently being reviewed for acceptance by Michigan Supreme Court
By Diane Bukowski
May 3, 2020
Carl Hubbard (MDOC photo)
DETROIT – Detroiter Carl Hubbard, now 55, has been serving a life without parole sentence (death by incarceration) in Michigan for 28 years, convicted of the first-degree murder of Rodnell Penn on Jan. 17, 1992. His case is currently awaiting the Michigan Supreme Court’s approval of his most recent application for leave to appeal.
Hubbard’s case closely resembles that of George Clark and Kevin Harrington, co-defendants whose 2003 Inkster murder case was dismissed April 23 at the request of the Wayne County Prosecutor’s Office, citing egregious police misconduct. (See box below.)
Attorney Wolfgang Mueller told the Detroit News about the Inkster case, “Threatening witnesses to make up a story and hiding evidence to grease the skids for a conviction cannot be tolerated by our society.”
Recorders Court Judge Richard P. Hathaway convicted Hubbard after a three-day bench trial in 1992. Assistant Wayne Co. Prosecutor James Gonzales presented no physical or forensic evidence, including the gun that killed Penn, fingerprints or gunshot residue. He presented no eyewitnesses.
His key witness, Curtiss Collins, a boyhood friend of Hubbard’s, claimed he saw Hubbard in the vicinity of the killing with the victim, then later recanted that testimony on the first day of Hubbard’s trial.
James Gonzales (r), currently Kym Worthy’s Chief of Special Operations.
In a glaring action ignored by courts through 28 years of Hubbard’s pro se appeals, Gonzales effectively drove his own key witness off the stand, ordering him immediately arrested by Detroit police on charges of perjury after his sworn recantation. A police report by Sgt. Ronald Gale attests that Gonzales ordered him to carry out the arrest.
Collins said that police and prosecutors threatened to charge him with Penn’s murder and other consequences to obtain his testimony, after holding him on the infamous 9th floor of DPD headquarters at 1300 Beaubien, home to the alleged “Ring of Snitches,” for two days until he reverted to Gonzales version of events.
Gonzales currently serves as Wayne County Prosecutor Kym Worthy’s Chief of Special Operations, while Judge Hathaway went on to become a Chief Assistant to Worthy in 2005, before briefly stepping down to run for Wayne County Treasurer. He won that position, but stepped down as Treasurer after three months.
The players instrumental in convicting Hubbard in 1992 thus remain in powerful positions in the Wayne County Prosecutor’s Office, giving that office reason to ignore any “dirty deeds” they committed in the past when responding to Hubbard’s appeals. Their prominence may have influenced the recent opinion rendered by Third Judicial Circuit Court Judge Lawrence Talon on Hubbard’s third motion for relief from judgment, rendered Oct. 2, 2019. (See http://voiceofdetroit.net/wp-content/uploads/Hubbard-Talon-answer-10-2-19.pdf]
(L to R): AP Richard Hathaway, Pros. Kym Worthy, retiring AP Augustus Huttings and Judge Timothy Kenny, currently chief judge of the Third Judicial Circuit Court.
Hubbard had filed that motion after numerous earlier appeals were rejected without any statement of fact by state appeals courts, only declarations that he did not meet the standards for appeal.
Regarding the arrest of Curtiss Collins after he recanted his testimony during Hubbard’s trial in 1992, Talon claimed, “…. neither the police nor the prosecutor intimidated the witness after his actual recanting . . .because the witness was forced to face perjury charges or testify against a man accused of murder. There was no intimidation, only a tough choice that Collins had brought about by his own actions.”
Collins, however, insists to this day that prosecutors and police forced him to testify falsely. On October 31, 2017, he filed a sworn affidavit to that effect. In the affidavit, he says that he spent two days after his arrest for perjury in lock-up at DPD’s former headquarters at 1300 Beaubien.
That affidavit is backed up by numerous others from individuals who swore they did not see Collins at the scene of the murder, including two proprietors who swore he was not in their store with Penn on that day. Collins had said he was in the store when he saw Hubbard with the victim. (See Collins’ affidavit at http://voiceofdetroit.net/wp-content/uploads/Curtiss-Collins-affidavit.pdf).
“I returned on the third day of Carl Hubbard’s trial after spending two days at the 1300 Precinct where I was threatened by Homicide officers Sergeant [Joann] Kinney and Sergeant [Ronald] Gale with being charged with the murder of Mr. Penn if I didn’t say that I saw Carl Hubbard at the murder scene of Mr. Penn. This is why I testified in the manner I did on the third day of Carl Hubbard’s trial, because of the fear I had of Sergeant Kinney and Gale’s threats of charging and prosecuting me for a crime that I had no knowledge of.”
He said he spent 10 months in prison from 2014-15, afterwards realizing how hard it was for Hubbard. He also learned that Gonzales, Kinney and Gale were no longer in their respective positions and could not directly retaliate against him.
He swore that “my statements that I provided on Jan. 23, 1992 to Sgt. Kinney and Sgt. Gale, on Feb. 4, 1992 at Carl Hubbard’s preliminary examination, and on Sept. 2, 1992 at Carl Hubbard’s trial were false. Whereas today I recant those statements which were coerced from me by threats from AP Gonzales, Sgt. Kinney and Sgt. Gale.”
Below is VOD’s interview with Curtiss Collins last year.
Hubbard’s attorney at trial, Ronald Giles, who is now a 36th District Court Judge, signed an affidavit stating firmly as below (excerpt–see full document at http://voiceofdetroit.net/wp-content/uploads/Atty-Ronald-Giles-letter-and-aff-Hubbard-habeas.pdf)
Judge Ronald Giles
Over the years, Hubbard has submitted dozens of affidavits attesting to his innocence including a key affidavit from Askia Hill, an eyewitness to the murder.
Hill’s full affidavit is at http://voiceofdetroit.net/wp-content/uploads/Askia-Hill-affidavit-from-CH-habeas-
Hill swore that he saw the killing of Rodnell Penn and named the perpetrator as Mark Goings. Affidavits from others in the community stated that it was known that Goings wanted to retaliate against Penn for killing his brother.
Hill’s affidavit clearly goes to the issue of Hubbard’s actual innocence. In part, it read:
Last year, the Michigan Supreme Court approved additional language regarding “actual innocence” to be added to Michigan Court Rules, at MCR 6.502. That language states that the court may waive newly discovered evidence provisions of the rule “if it concludes that there is a significant possibility that the defendant is innocence of the crime.”
Additionally, MCR 770.1 has always stated as follows, “770.1 Granting new trial to defendant. The judge of a court in which the trial of an offense is held may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it appears to the court that justice has not been done, and on the terms or conditions as the court directs.”
Judge Talon says in his ruling that he did not find affidavits from Hill and others “believable,” but legal experts say that a judge does not have the right to decide what is believable, that such evidence must go to the jury, if they are the finders of fact.
In his extremely well executed pro se 2013 habeas petition, Hubbard cited key cases from the U.S. and Michigan Supreme Courts, and the Sixth Circuit Court of Appeals that speak definitively to the issue of “actual innocence.” They include Schlup v. Delo 513 U.S. 298 (1995), and Souter v. Jones 395 F 3rd 577 (6th Circ. 2005). (See part I of Hubbard’s petition at http://voiceofdetroit.net/wp-content/uploads/Carl-Hubbard-habeas-petition-2013-pages-deleted-compressed.pdf.)
Hubbard’s case closely resembles that of George Clark and Kevin Harrington, co-defendants whose 2003 Inkster murder case was dismissed April 23 at the request of the Wayne County Prosecutor’s Office.
That office’s Conviction Integrity Unit said egregious police misconduct, including coercion of the only original eyewitness by Inkster police, was involved. That witness later recanted and was replaced by a witness who identified the real killer. Although the CIU would not identify the officer responsible, the Sixth Circuit Court did so in their ruling on Clark’s appeal, as Officer Anthony Abdallah.
According to that ruling, Abdallah threatened to take away the children of the purported eyewitness if she didn’t testify falsely against Harrington and Clark.
Sgt. JoAnn Kinney surfaced after her retirement from the DPD as a Wayne County Prosecutor’s investigator. She gained fame for claims that former Detroit Mayor Kwame Kilpatrick assaulted her and another officer when they went to his sister’s house to serve a subpoena on him for the prosecutor.
Ironically, DPD Sgt. Kinney used the same tactic herself in the 1995 case of Thoanchelle Taylor.
Judge Kathleen MacDonald
In an article titled, “Detroit Police Inquiry Expands,” which cites Kinney, Detroit Free Press reporters Norman Sinclair and Ronald Hansen wrote, “In another murder case in which the city ultimately paid a five-figure settlement in 1995, a Wayne County Circuit Court judge harshly criticized Detroit police for locking up a mother of two children as a witness and illegally holding her until her 12-year-old daughter and 6-year-old son implicated her in the death.
“Judge Kathleen McDonald said she was outraged that police charged Thoanchelle Taylor with murder without ‘scintilla of evidence,’ as the judge put it. “If I have ever seen a case where the police have manufactured the facts, this is one. I have never had facts as egregious as this case.
“Veteran Homicide Sgt. Joann Kinney testified that she had Taylor locked up as a witness for days without charges against her and said there was no standard procedure as to how long witnesses could be held without being arrested. Kinney also admitted threatening to take Taylor’s children away if she did not cooperate. . .”
Kinney was also involved in eliciting a confession from a 12-year-old girl to a charge of murder of a child she was babysitting, by promising she could go home if she confessed. The confession was thrown out by the juvenile court judge in 1992. (See article below.)
JoAnn Kinney testified later in a federal civil lawsuit, Moore v. City of Detroit, 07-11787, that the City of Detroit had a policy and practice of detaining witnesses. (Docket No. 20, Exh. D, Dep. of Joann Kinney, pp. 40-50). See http://voiceofdetroit.net/wp-content/uploads/People-v-Moore-.pdf. Of course, that policy had been thoroughly exposed when the U.S. Department of Justice put the DPD under a consent agreement, with regard to its use of force and practice of witness round-ups in 2003.
For his part, DPD Sgt. Ronald Gale was cited by the Michigan Supreme Court in a case very similar to Hubbard’s, People v. Jenkins, 450 Mich. 249 (1995). In Jenkins, Justices James H. Brickley, Charles L. Levin and Michael F. Cavanagh reversed the 1995 conviction of Steven Jenkins for the murder of Demowens Harris in 1989 and remanded it for a new trial. The full opinion is at http://voiceofdetroit.net/wp-content/uploads/People-v-Jenkins.pdf.
Sgt. Ronald D. Gale passed in 2014; family photo from obituary.
In that case, Gale elicited a written statement from witness Reginald Pennington indicating that he had seen defendant Steven Jenkins riding toward the murder victim and that gunfire took place immediately after Jenkins left Pennington’s line of sight. At trial, however, Pennington denied the content of the statement, despite having signed it. The prosecutor then had Gale read the statement into the record word for word.
The State Supreme Court said, “Shortly after the shooting, Reginald Pennington gave police a signed statement that immediately before the incident he had seen Jenkins riding in a gold Sunbird toward the crime scene, and that gunfire erupted immediately after the vehicle left Pennington’s line of sight.[6] Called as a prosecution witness, Pennington offered little useful information. He testified rather that he was sitting on his porch a block away from the crime scene when he heard shots and saw a crowd gather.”
The court continued, “Over defense objections, the prosecutor questioned Sergeant Gale, the police officer who took Pennington’s statement. The prosecutor had Gale read much of Pennington’s statement. Gale quoted Pennington as saying:
102 Leicester Ct. Google photo
“At about 6 P.M., I’m sitting on the porch of 102 Leicester. A gold Sunbird rode past the house, and as soon as it got out of my eyesight, I heard the shooting. One of my friends came around there where I was at and told me that Steve [Jenkins] had shot [the victim] Demowens in the head. Steve [Jenkins] is the one that drives the gold Sunbird.” [Emphasis added.]
The Court added that Gale was also permitted to read word for word from an attached memorandum, “I saw the driver of the car and the passenger. I didn’t see who was in the back seat of the car.” He recognized in the car “Steven Jenkins and this guy named Spanky.” Jenkins was “[i]n the front passenger side.” Spanky “was the driver of the car.” He heard “[a]bout 11” shots fired. Gale also asked Pennington whether he had ever seen Jenkins with a gun before, and Pennington responded, “Yes, a .45 automatic, nickelplated.” “Every time [Jenkins] gets out of the car to go in that building, he has the gun in his hand.”
Carl Hubbard, convicted in 1992, is one of many prisoners from Detroit who were caught up in the rabid practices of the Detroit Police Department during the 1990’s, which included unbridled witness round-ups and detention, killings by police (Detroit had the highest number of any city in 1999), and unchecked tens of thousands of frame-ups.
Those practices began many decades ago when the “Big Four” DPD cars roamed the city, singling out young Blacks for arrest, to the 1967 rebellion, when dozens of poor, largely Black people were murdered by police and the National Guard, to STRESS (Stop the Robberies, Enjoy Safe Streets), whose undercover cops slaughtered Black men at random, and continuing to the present day.
Many believed Mayor Coleman Young’s election put an end to such practices, but they continued unabated through the decades following to the present day. In this system, police are the descendants of the slave-catchers of previous centuries, and agents of mass incarceration in the present. They do not serve the people, but the wealthy white supremacist class.
Related stories:
JUDGE TO REVIEW CASE OF CARL HUBBARD, IN PRISON SINCE 1992; INNOCENCE BACKED BY DOZENS
NINETY INGHAM COUNTY, MI LIFERS MAY GET SECOND CHANCE; PROS. CAROL SIEMON OPPOSES LWOP
So much abuse of power.
Wow, this has been a long journey for all of us involved. Thank you Dianne for having the courage to share my uncles story. Exposing the corruption, abuse of power, and inequality within the Detroit Police Department and Prosecution office takes courage. I salute you for having the heart to do so.
This is unbelievable! A complete miscarriage of Justice . I with others demand a fair trial or an immediate release of Mr. Hubbard