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WPCO Conviction Integrity Unit Has Dismissed Two Cases

Today the Wayne County Prosecutor's dismissed cases against Kevin Lackey (DOB: 10/22/1973) and Michael Powels (DOB: 01/06/1980) before Judge Kelly Ramsey.

The Wayne County Prosecutor's Office Conviction Integrity Unit became operational in January 2018 and has received over 717 requests for investigation. https://www.waynecounty.com/elected/prosecutor/conviction-integrity-unit.aspx

Assistant Prosecutor and CIU Director Valerie Newman said, "It is a testament to the WCPO that this unit is allowed to engage in a very comprehensive re-investigation of cases. We could not do this work without the cooperation of lots of people who collectively are interested in the fairness and integrity of the criminal justice system."

Kevin Lackey Case

On July 5, 1992, an 11-year-old girl was carried her from her bed and sexually assaulted on the back porch of a house located on Stafford Street. After the attacker left the house, the girl woke her mother and the police were called. The police called in a canine tracker and a K-9 unit who tracked the evidence near the scene to Mr. Lackey's home across a field, three or four houses south of the Stafford home. The child was not able to identify her attacker. Mr. Lackey was known to the victim for years as a family friend who had been to her home many times; however, the victim was unable to identify him in a line up, or to identify him by voice.

On January 26, 1993, Mr. Lackey was convicted by a jury, as charged, of two counts of First Degree Criminal Sexual Conduct Involving a Person Under 13 Years of Age; Second DegreeCriminal Sexual Conduct; and Breaking and Entering an Occupied Dwelling With Intent to Commit Criminal Sexual Conduct. On February 26, 1993, he was sentenced to 15 to 25 years on each count, to be served consecutively. He was re-sentenced on March 9, 1993 on the Second Degree Criminal Sexual Conduct and Breaking and Entering an Occupied Dwelling With Intent to Commit Criminal Sexual Conduct to 10 to 15 years imprisonment, all sentences to be served concurrently.

Following his convictions, Mr. Lackey appealed of right to the Michigan Court of Appeals. He raised one instructional issue that has no relevance to review here. There is no indication Mr. Lackey filed in the Michigan Supreme Court. Mr. Lackey filed a Motion for Relief from Judgment, which was denied on September 6, 1996 that raised precisely the same issue as previously raised in the Court of Appeals. No further appeals were taken from this denial. Mr. Lackey maintained his innocence

CIU Basis for Dismissal

· The dog tracking evidence was the primary identification of Mr. Lackey and investigation by the CIU revealed profound defects in this evidence.

· The dog tracking in this case was found to be conducted in violation of protocol. Violations include not starting the track at the proper location.

· Many other problems with the tracking evidence presented at trial were discovered.

- The handler's testimony that a track is not supposed to begin from inside a dwelling is unfounded.

- The handler violated protocol by being given or seeking a detailed description of the suspect before the track began and could have consciously or subconsciously signaled to the dog to stop at Mr. Lackey. Protocol dictates the handler must be "blind" to any information about the track, including any details about the suspect or possible movements taken.

- The handler also violated protocol by verbally engaging the suspect, which conveys to the canine that the person is of interest.

- The handler's testimony that he could tell how "fresh" the track was by how hard the canine pulled, has no scientific support, which called his training and experience into question, and misled the jury. How vigorously a dog pulls his handler bears no correlation to how recently a scent was laid.

- The fact that one track was done and that it was not verified by a track conducted by another canine team also undermined the validity of the track.

· The lack of any monitoring of abilities and certification of the tacking dog invalidated the track.

· The lack of records as to the training and certification of the tacking dog was problematic and in violation of "best practices" rules. The capabilities of scent tracking dogs vary and unless one can discern how well a particular canine performed during training and certification, it is difficult to assign weight to the results of the track. Additionally, the "peak" age for a tracking dog is two years. Further, the record is silent as to whether the Department monitored the dog's tracking capabilities as he aged.

While Mr. Lackey maintained that he had not walked the path in between the houses on that morning, it is now known that the scent can last for over 24 hours. Lackey in fact would regularly travel through a path in a field near the victim's house because his aunt also lived nearby the victim's home.

Conclusion

It is clear that the identification of Mr. Lackey as the suspect was based upon profoundly invalid dog tracking evidence that was crucial to his convictions. For this reason, the Wayne County Prosecutor's Office moved to have his convictions vacated. Given that the perpetrator of the sexual assault has not been identified, and the primary evidence against Mr. Lackey has been discredited, Mr. Lackey will not be retried.

Michael Powels Case

On June 18, 2006, someone shot and killed Robert Sawyer at an intersection of 14th Street and Clairmount in Detroit. The only issue at trial was identification. A cab driver saw two men in a white SUV shoot into Sawyer's vehicle. The cab driver could not identify either of the individuals. There was only one male witness to connect Powels to the homicide, despite the fact that he did not witness the shooting.

On December 7, 2007, Michael Powels was convicted by a jury of Second Degree Murder in the death of Robert Sawyer. The defendant later presented an alibi defense but the court denied relief, finding the witnesses lacked credibility. On January 2, 2008, Powels was sentenced to 45 to 75 years in prison. The Court of Appeals affirmed Powels' conviction and sentence, and the Michigan Supreme Court denied leave to appeal. The currently pending Motion for Relief from Judgment was filed and the case has been stayed pending review by the CIU. Powels maintains his innocence.

During the investigation by the CIU, the witness who connected Powels to the homicide but did not see the actual shooting was found to have given false testimony in the case. This case centers onthe testimony of a now deceased male witness James Tate and the statements he claimed to have overheard from two young men. Tate is now deceased but had written two letters to his maternal uncle admitting that he lied about the statements he claimed the two men had made. The letters are dated December 1, 2006 and June 6, 2007. Powels' preliminary examination was held on May 30, 2007 and his trial began on December 3, 2007. The letters were unknown to the prosecution at the time of the case was in court.

On April 17, 2018 the letters were turned over to the CIU and were crucial to the CIU's investigation. CIU interviewed Tate's mother and she identified the writing as belonging to her son. CIU requested Michigan State Police (MSP) to analyze the letters to determine if they matched Tate's handwriting. Unfortunately, an insufficient number of exemplars could be found to permit the analysis to be done but MSP was able to determine that one person wrote both letters. CIU analyzed the letters in conjunction with objective and verifiable then contemporaneous information and has concluded that both letters are genuine.

As a result, it has been determined that Powels should be granted a new trial because the most significant basis for conviction rests on perjured testimony. The remaining evidence presents a significantly weaker case than it did before the perjury was discovered. Allowing a conviction to largely rest on perjured testimony implicates the fairness and integrity of the criminal justice system. The current evidence does not support a conviction and today the CIU's motion to vacate the sentence and dismiss the case was granted by the Court. After exhaustive investigation, the CIU has concluded there is no path forward for a retrial of Powels.

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