Wednesday, March 24, 2010

Free, again

Posted By on Wed, Mar 24, 2010 at 4:59 PM

After the Wayne County Prosecutor's Office dropped its efforts at his retrial in a decade-old murder, Dwayne Provience's ankle tether came off on Wednesday.

"I'm free, mom," he said moments later as his mother, Vonzella Battle, sobbed in his arms. "You don't have to worry no more."

Provience's ankle had been encircled and his movements limited and monitored since November when law students and attorneys from the University of Michigan Law School's Innocence Clinic won him a new trial. Prosecutors agreed he could be released from prison but continued their efforts at retrying him until yesterday when they dismissed the murder and felony fire arms charges.

In 2001 Provience, 36, was convicted in the 2000 shooting death of Rene Hunter, a killing police said was drug-related. Sentenced to 30 to 60 years in prison, he served nearly nine years.

A year after his conviction, the law students found, then-Wayne County Assistant Prosecutor Eric Restuccia (now Michigan's solicitor general) argued at a second murder trial that someone else, not Provience, had killed Hunter. The two killings were related, Restuccia said then. The discrepancy is something the prosecutor's office hasn't explained.

In arguing for a new trial, Provience's legal team also showed that exculpatory evidence had not been turned over to his original defense lawyer. Wayne County Circuit Judge Tim Kenny last year ordered Provience freed but electronically monitored and restricted to his mother's northwest Detroit home. When Provience found employment at two jobs, Kenny allowed him to work.

Until yesterday, prosecutors had insisted they would retry Provience at the trial scheduled for April 5. But at a hearing today assistant prosecutor Bob Stevens said he would dismiss the charges without prejudice, leaving the option that Provience could be retried in the future.

"The case was dismissed because there were evidence problems resulting from the Detroit Police Department's failure to locate police files in the case," says Maria Miller, spokeswoman for the Prosecutor's Office."Additionally on March 17 the Michigan Court of Appeals upheld the trial judge's ruling that prior testimony from the key witness in the case could not be used. The prosecution was unable to proceed to trial and the case was dismissed."

That witness was admitted crack user Larry Wiley, who has said police threatened him if he didn't testify against Provience. Kenny ruled that Stevens could not use Wiley's prior testimony unless Wiley appeared. Wiley said he would invoke his Fifth Amendment right against self-incrimination and not testify if called as a witness at Provience's second trial, and prosecutors did not offer him immunity.

"Immunity given to 'pressured' or 'coerced' witness to come in and possibly perjure himself presents significant ethical problems," Miller says.

After the dismissal in court, Provience and his legal team went to the Wayne County Detention Facility in Detroit where Deputy Shanteo Dyer removed his tether, shook his hand and congratulated him.

"This feels like the first day again of being released," Provience said. "I feel like I've got my life completely back and I'm just hoping for an apology from the prosecutors. I hope they can publicly apologize to me just like they publicly embarrassed me and my family. That's all I'm looking for, a public apology."

Earlier this month Stevens listed law school students on his witness list, arguing they were not covered by attorney-client privilege. The university submitted a brief on the issue, and Kenny scheduled a hearing for April 29. With the dismissal of Provience's charges, the question of the law students testifying won't be decided in this case.

"It's a fight for another day because now there's no pending case for which they can file that motion," says clinic co-director Bridget McCormack. A decision on that motion would have affected the growing number of law school clinics in Michigan. "I'm sure it will come up again," she says.

Provience, meanwhile, had hoped for his mother's spaghetti for a celebratory dinner, apparently forgetting he could leave her house now in the evenings.

She refused his request. "We're going out," she said.

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