Tuesday, December 15, 2009

Confession confusion: More from the Provience case

Posted By on Tue, Dec 15, 2009 at 6:12 PM

The confession of Eric Woods was good enough for Wayne County prosecutors when they successfully tried him for murder in 2003, but now they want his statement withheld from another man’s retrial in a different killing.

Why? Because it would help the defense of Dwayne Provience, a man whose case Metro Times has been following this year.

Woods admitted to killing a man named Courtney Irving and also told Detroit Police that someone other than Provience had killed Rene Hunter nearly a decade ago, shooting him to death at a northwest Detroit intersection. (See “A Tale of Two Homicides,” Oct, 28, 2009)

Then-Assistant Wayne County Prosecutor Eric Restuccia used Woods’ confession at his trial to explain that the two killings were related. In the confession Woods named another man — not Provience — as Hunter’s shooter.

Woods was found guilty and is currently serving a life sentence. Restuccia is currently Michigan’s solicitor general.

Earlier this year, Provience’s new attorneys from the University of Michigan Law School’s Innocence Clinic learned of Woods, his confession and the prosecutors’ use of it at trial. Provience’s attorneys want to use Woods’s identification of another shooter to help clear Provience who has been free on bond since last month when Wayne County Circuit Judge Timothy Kenny overturned his 2001 conviction in part because evidence was withheld from defense attorneys before trial.

Kenny held a hearing Tuesday to decide the question of the confession’s admittance and other pre-trial issues. Assistant Prosecutor Robert Stevens argued that the confession should not be allowed in a Provience re-trial, which he says he intends to pursue.

“We’re going into a grey area of vouching for the truth of the statement Mr. Woods made,” Stevens said. “[Restuccia was] not vouching for its truth but he’s saying it’s admissible evidence the jury could consider.”

Kenny disagreed. “No prosecutor worth his salt in a murder case is going to get up and say, ‘The defendant confessed. You can disregard that,’” Kenny said.

(After the hearing, Stevens declined to explain to Metro Times how the prosecutor’s office could argue two different theories of the same murder.)

Kenny ruled that Provience’s attorneys could not use Restuccia’s opening and closing statements at Provience’s new trial, scheduled for April, but he did agree that prosecutors could be prevented from contesting the truth of Woods’ confession at Provience’s trial.

Meanwhile, the sole prosecution witness to testify at Provience’s first trial says he won’t testify against him again.

“I’ll take the Fifth,” says Larry Wiley who appeared in court yesterday but was not asked to testify.

Wiley, an admitted drug user, was in custody suspected of burglary when he told Detroit police he saw Provience kill Hunter. His testimony contradicted a half-dozen other eyewitnesses, but he testified at Provience’s trial. Since then, he has told attorneys he was not at the scene. Yesterday he said police threatened him if he didn’t testify against Provience.

If Wiley won’t testify at Provience’s new trial and is deemed an “unavailable witness,” his trial testimony, under normal circumstances, could be read from a transcript. But that assumes Provience’s trial attorney was able to effectively cross-examine him at trial.

David Moran, one of Provience’s attorneys and co-director of the Innocence Clinic, says that didn’t happen because evidence was withheld and not available to the defense.

“It’s no substitute to read the transcript because we don’t get to ask Larry about it,” Moran says. “The remedy is to exclude the trial testimony.”

Kenny asked both Stevens and Provience’s team to file written briefs about the issue and set a Jan. 27 date for a hearing.

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