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Key Witness Davontae Sanford Asserts Fifth Amendment Privilege

Statement from Prosecutor Kym Worthy

"The obvious question is why this office could move to dismiss a case where four people were killed based on James Tolbert's interview with Michigan State Police, but not charge him with perjury? As I have stated, the building blocks of our case were severely undermined by this interview and we requested that the case be dismissed.

"In order to proceed with perjury charges, we must prove beyond a reasonable doubt that Tolbert's testimony on July 13, 2010, was false. There were only three witnesses to the drawing of the sketch in question. Two of them, Davontae Sanford and James Tolbert are unavailable to us. The third person is Sgt. Michael Russell, and his testimony does not support a perjury charge. The bottom line is that there is an important legal distinction between acting on evidence that undermines a conviction, and proving beyond a reasonable doubt that someone has committed perjury," said Prosecutor Worthy.

Facts of the Investigation

On May 20, 2016, at the conclusion of the re- investigation of the Runyon Street homicides for post-conviction purposes in Davontae Sanford's case, the Michigan State Police submitted a warrant request to the Wayne County Prosecutor's Office seeking the authorization of perjury charges against former Detroit Police Department Deputy Chief James Tolbert.

On July 13, 2010, a post-conviction hearing was held by Judge Brian Sullivan because Mr. Sanford asked the court to withdraw his guilty pleas to four counts of Second Degree Murder and Felony Firearm. At that hearing, Mr. Tolbert testified that Mr. Sanford, when requested to do so, had drawn, entirely on his own and without any assistance, an interior sketch of the house where the crime occurred. Mr. Tolbert further said that Mr. Sanford had drawn the bodies of the victims on the sketch in their respective positions. On October 2, 2015, Mr. Tolbert, at that time the Chief of the Flint Police Department, was interviewed by detectives from the Michigan State Police. During the interview, Mr.Tolbert said that he drew the outline of the sketch and Mr. Sanford drew in the placement of the victims' bodies.

The MSP request for the warrant is based on the discrepancies between the statements made by Mr. Tolbert under oath at the 2010 evidentiary hearing, and during the MSP interview on October 2, 2015. During the course of the interview, Tolbert indicated several times that he did not remember specific facts about the Runyon Street homicide investigation. He repeatedly indicated that his memory of the events were not clear in his mind, due to the passage of time and the large number of cases he has worked on since these homicides took place. Specifically, when questioned Mr. Tolbert was asked if Mr. Sanford drew the entire sketch, or just the bodies. Mr. Tolbert responded that Mr. Sanford drew only the bodies.

Within a short period of time after Tolbert made his statement, D/Sgt. Corriveau said to him, "That makes sense to me" five times, suggesting to Tolbert that his answers are consistent with the other evidence regarding the homicides.

October 2, 2015 Transcript

Questions by Detective Sergeant Corriveau
Answers by James Tolbert

Q. No, no. That was a long time.
A. Yeah.
Q. Sure. Yep. Okay.
A. All I can is this right here, that was the key.
Q. Okay.
A. Two bodies together like that.
Q. Yep.
A. Only way he would have known it.
Q. Now, you specifically, do you recall -
A. These bodies were actually over here. Now that I kind of think about it -
Q. Yeah.
A. - the actual scene, but -
Q. Now, specifically do you recall that, that, did he draw, now, did he draw the entire thing or did he just draw where the bodies were? I mean, did you guys -
A. He drew the bodies.
Q. Okay.
A. Yeah.
Q. So, so who drew the house here?
A. I think I did draw, I drew the house.
Q. Okay, you drew the house.
A. I said this is the house, where the bodies.
Q. Okay. So you drew the house and you said hey, show me where the bodies were.
A. You were in there, this is the house, where are the bodies.
Q. Okay. And so then he just draws the bodies in there.
A. Exactly.
Q. Okay.
A. Hmm-mm.
Q. Yeah, that makes sense. That seems a little more consistent with me.
A. Yeah.
Q. Okay. And so then, uh, let me ask you. Do you recall if, if, uh -
A. Matter of fact, whenever I did that, that's why I did that. So I could say okay, you know, okay, show me where the bodies were if you were in the house.
Q. That makes sense.
A. This is the house; where are the bodies.
Q. Sure. That makes sense. That makes sense to me. Okay. And then he draws, and then he draws, uh he draws the little, the little bodies on there and that's, he says okay, this is where they're at and he says okay, they're right here.
A. Yeah.
Q. Okay.
A. Absolutely.
Q. That makes sense. All right. Let me, uh, do you recall if Russell had a camera at the time? There's some, there's some, you know, do you remember if he had a digital camera or had he ever taken pictures or anything like that?
A. I couldn't tell you.

Tolbert was never afforded the opportunity to review any reports or his prior testimony. He was never confronted with the inconsistencies of his prior statements. When asked why MSP police investigators failed to confront Tolbert with prior testimony, or give him the chance to explain the discrepancies, they indicated that Mr. Tolbert did not ask to review it.

Michigan Law on Perjury

In Michigan, to charge a perjury case the prosecutor must prove these elements beyond a reasonable doubt:

1. That the defendant was legally required to take an oath in a proceeding in a court of justice;
2. That the defendant took the oath;
3. That while under oath, the defendant made a false statement, and ;
4. That the defendant knew that the statement was false when he made it.

In perjury cases, the most difficult burden on the prosecution is to prove that the defendant knowingly made a false statement. In order to prove that the defendant made a false statement, the prosecutor must establish what actually the truth is. The law in Michigan is clear that it is not sufficient to simply present evidence that the defendant contradicted his sworn testimony:

"The prosecution cannot satisfy its burden simply by contradicting the defendant's sworn statement...Rather, the prosecution must present 'evidence of circumstances bringing strong corroboration of the contradiction" People v Kozyra, 219 Mich App,422 (1996) 

The inconsistencies between Tolbert's testimony under oath, and his statement to MSP investigators would not be sufficient to prove perjury under Michigan law. To prove the case, it would have to be supported by the testimony of the two other witnesses that were present, Mr. Sanford and Sgt. Russell.  

There were three people present when the sketch was drawn: Mr. Tolbert, Mr. Sanford, and DPD Sgt. Michael Russell. Sgt. Russell has consistently maintained that Sanford drew the sketch. He testified under oath on three times that Sanford drew the sketch: at Sanford's preliminary examination; at Sanford's trial; and at Sanford's post-conviction hearing. When Sgt. Russell was interviewed by MSP on November 3, 2015, he again stated that the sketch was drawn by Sanford. Russell's testimony has been consistent, and when asked he said that he would not change his previous statements and testimony.

The most significant barrier to charging this case is the key witness, Davontae Sanford. Through his attorney he has communicated to the Wayne County Prosecutor's Office that he will not testify regarding any matter related to the Runyon Street homicides and is asserting his Fifth Amendment privilege because the charges against Mr. Sanford have not yet been dismissed.

In a letter dated July 11, 2016, Mr. Sanford's lawyer stated:

"As a final objection, counsel for Mr. Sanford notes that while the convictions and sentences of Mr. Sanford in the Runyon street case have been vacated, the charges against Mr. Sanford have not been dismissed by the court to date. The last filing before the court in support of that dismissal is the Joint Supplemental Filing in Support of the Motion to Dismiss on June 24, 2016, attached as Exhibit C. Counsel for Mr. Sanford certainly expects that the charges will be dismissed by the court prior to any preliminary hearing that might be scheduled for Mr. Tolbert on his perjury charges. However, until the charges are dismissed by order of the court, Mr. Sanford asserts his Fifth Amendment privilege and will not be testifying regarding any matter related to those charges."

On June 8, 2016, a Motion to Dismiss the charges against Davontae Sanford was filed by the prosecution. At this time the case has not be dismissed by the court. The Wayne County Prosecutor's Office cannot issue charges knowing that there is a possibility that Mr. Sanford will not testify.

The revelation that a key witness will not testify to material issues of facts in the case is a profound impediment, making it impossible to prove a perjury case beyond a reasonable doubt. After a thorough review of the allegations against Mr. Tolbert, it has been determined that the warrant will be denied; the Wayne County Prosecutor's Office cannot prove that Mr. Tolbert committed perjury beyond a reasonable doubt.

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