Federal appeals court reverses part of death row inmate’s case

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SALT LAKE CITY — A federal appeals court has reversed part of a death row inmate’s case, allowing him to submit new evidence of claims of prosecutorial misconduct.

In a ruling Tuesday by the 10th U.S. Circuit Court of Appeals, the federal court judges sided — in part — with Douglas Carter, allowing him to challenge parts of his death penalty case.

“We conclude that the district court abused its discretion in refusing to allow Mr. Carter to supplement his habeas petition with claims based on newly discovered evidence of prosecutorial misconduct and suppression of evidence,” Judge Paul Kelly wrote in the opinion.

“Because the district court did not address whether a stay of these claims to permit exhaustion was appropriate, we remand to allow this determination in the first instance.”

However, the 10th Circuit Court refused to toss the case entirely.

Douglas Carter (image provided by the Utah Dept. of Corrections)

Douglas Carter (image provided by the Utah Dept. of Corrections)

Douglas Carter is on death row for the 1985 murder of Eva Olesen in Provo. Prosecutors said the 57-year-old woman, who was a relative of Provo’s then-police chief, had been stabbed 10 times and shot in the back of the head in a home-invasion robbery.

The 10th Circuit Court noted there was no evidence directly tying Carter to the scene, but police focused on him at the prompting of his wife, Anne. She suspected her .38 caliber handgun was used in the crime. Police claim Carter confessed after being arrested in Nashville, Tenn.

However, the court noted, no evidence placed Carter at the scene of the crime. Only the testimony of two acquaintances, Epifanio and Lucia Tovar, placed him at Olesen’s murder.

“Mr. Tovar described to the jury his conversation with Mr. Carter in which Mr. Carter described how he killed Mrs. Olesen. Mrs. Tovar testified that she overheard the conversation, though they were speaking in English and Mrs. Tovar only spoke Spanish. She testified that Mr. Carter demonstrated how he bound and stabbed Mrs. Olesen and was laughing. Notably, the Tovars testified they took the stand free of inducement, with the exception of court-ordered witness fees of $14 each,” Judge Kelly wrote.

In 2011, Carter’s attorney filed an appeal claiming to have found evidence of prosecutorial misconduct claiming the Tovars got gifts and other inducements from Provo police.

“Epifanio and Lucia Tovar executed declarations describing the favorable treatment provided to them by the Provo Police Department in advance of Mr. Carter’s trial. Epifanio, in declarations in April and August of 2011, stated that the Provo police twice moved him and his wife to a new apartment, paid their rent (roughly $400 a month), paid their utilities and phone bills, and brought them groceries,” Judge Kelly wrote.

“He further explained that the police coached his statements during interrogation and specifically told him ‘not to say anything about [the police] paying for our apartment and other living expenses’ at Mr. Carter’s trial. Lucia Tovar, also in April and August of 2011, executed declarations that the Provo police sent them ‘gifts,’ including food baskets, one hundred dollars in an envelope, toys for their son, and a Christmas tree.”

The court said it would allow the issue to be litigated in a lower court.

The Utah Attorney General’s Office said Wednesday it was reviewing the ruling but had not made a decision if it would seek an en banc hearing from the 10th Circuit Court, where the full court would take up the case.

Read the ruling from the 10th U.S. Circuit Court here: