By W. Kevin Armstrong
Tulsa District Judge Sharon Holmes declared two Tulsa men innocent May 9 of a 1994 murder for which they had been wrongfully convicted, and she set them free Monday after the men had served more than 21 years in prison for a crime they did not commit.
De’Marchoe Carpenter and Malcolm Scott became the 31st and 32nd prisoners in Oklahoma to be exonerated since 1989, according to the National Registry of Exonerations, and they served more time behind bars than any of the other 30 prisoners who preceded them in winning their freedom during that modern period.
Of the 32 total exonerations, Carpenter and Scott are among 11 cases of wrongful convictions in Tulsa County, ranking it the worst in the state for sending people to prison for crimes they did not do. Oklahoma County, home to the city’s capital and the most populous county, ranks second with six exonerations since 1989. Cleveland and Pontotoc counties are tied for third with three each.
In setting free the men, who were each 17 at the time of the drive-by shooting that killed Karen Summers, Judge Holmes said no jury would have convicted Carpenter and Scott if jurors at the 1995 trial had heard all the evidence presented at a Jan. 29, 2016, post-conviction relief hearing.
On May 9, Holmes said she based her findings on several key things she heard Jan. 29, including:
• Two days before he was executed in January 2013 for murdering a fellow QuikTrip employee in 1995, Michael Wilson confessed in a videotape interview with the Oklahoma Innocence Project that he pulled the trigger that killed Summers in 1994. He reiterated that claim on his deathbed, declaring Carpenter and Scott innocent, saying he let them take the rap for his crime and he later came to regret it.
• Tulsa Police detectives found Wilson in the days following the 1994 Summers’ murder to be in possession of the rental car used in the drive-by shooting as well as the murder weapon, based on a ballistics test that matched the gun he owned.
• No physical evidence in the 1995 trial over Summers’ death ever linked Carpenter or Scott to the crime.
• Richard Harjo, who was also convicted of the 1995 QuikTrip murder and is serving a life-without-parole sentence, testified at the January 2016 hearing that he was with Wilson in the car and saw Wilson fire the shot that killed Summers. He told Judge Holmes that no one had ever asked him to testify in the case in 1995. He said neither Carpenter nor Scott was in the car that night.
• Carpenter’s and Scott’s attorneys in the 1995 trial were not privy to certain evidence in the case because witnesses, including Wilson, were not being cooperative at the time.
• Two other people standing near Summers, who were shot and injured in the 1994 drive-by shooting, testified against Carpenter and Scott in the 1995 trial but years later signed affidavits saying they were coerced into their testimony by police and never saw who shot them.
“Having heard the evidence, nobody could convict the petitioners of the murder of Summers,” Judge Holmes said May 9 in court. “The court finds the petitioners are granted relief.”
Carpenter’s mother, Pamela, let out a soft cry as the decision came down from the bench, and tears began to flow in her front-row seat. A bailiff forced her out of the courtroom for outwardly showing her emotion, but it didn’t matter. Justice finally had been won.
Scott, still shackled and wearing his orange prison attire, beamed a smile as he turned and leaned into the congratulatory hugs of his attorneys. Josh Lee, who offered his services pro bono on the case, flanked Scott along with Oklahoma Innocence Project Legal Director Christina Green.
Carpenter’s facial expression was hidden from the court gallery’s view as he looked straight ahead at the judge’s bench. Attorney Vicki Behenna, executive director of the Oklahoma Innocence Project, sat next to her client, delighted at having won the case.
As family members, friends and media members spilled into the fourth-floor hallway, questions quickly emerged about what might happen next in transitioning the exonerated prisoners to their freedom outside. Nobody could have predicted what the next four hours would hold.
The final hours
After a few informal comments to various media by family members expressing their delight with the decision, Tulsa private investigator Eric Cullen drew the first pack of reporters and camera crews at 3:30 p.m. as he breathed a sigh of relief, saying it marked the culmination of a 10-year journey for him.
Cullen had only been in business for one year when he began circulating pamphlets in Oklahoma prisons in 2006, letting inmates know he was interested in helping those who believed they had been wrongfully convicted. Both Carpenter and Scott responded, along with many others, but Cullen said he believed those two men’s case merited his attention.
“I did about a yearlong investigation,” he told the media gathered outside the courtroom May 9. “I did everything I could to involve local lawyers. That didn’t work out. After many, many attempts, the Midwest Innocence Project finally came around and got involved.
“Tiffany Murphy who was there in Kansas City with them brought Malcolm and De’Marchoe’s case with her to Oklahoma City (University’s) School of Law to open up the Innocence Project there, which this was their first case. I was very excited to get an email from her in late 2011 to be part of the investigation. At that point, we worked very hard together to re-investigate what I had investigated four years earlier.”
That’s what made the May 9 decision so gratifying for Cullen.
“I have had had a lot of gratifying things in my career, but this is Number One for sure by far,” he said. “I would not have dedicated what I did, had I not believed in these guys from day one.”
Cullen acknowledged that while his work was vital to helping get the case started, he knew that it would require a licensed attorney to bring the case back before the court for another hearing.
While Cullen was speaking with the media immediately after the May 9 hearing, the attorneys for Carpenter and Scott were busy trying to secure their release because unexpected delays had suddenly emerged.
While court officials were processing Scott’s paperwork so he could be released, they discovered Scott had a 1999 conviction for possession of marijuana while he was incarcerated in Comanche County. He received a five-year sentence, but nowhere did it say that the sentence was to run “concurrent” with the life sentence in the Summers’ case. Department of Corrections officials said the district attorney in Comanche County would have to clear this up, and it already was late in the day.
Attorney Josh Lee gathered the media at 4:30 p.m. and said Scott might not be released that afternoon due to the snafu, but they were working on getting it resolved.
It all centered on “time served,” he explained with exasperation.
“I guess 7,913 days isn’t enough for a crime that he didn’t commit, and instead they want to get their full time for five (more) years.”
He added: “I ask the folks down there to be a human being and make this thing right. It’s not that difficult of a request. All it takes is a signature – a D.A.’s pen.”
Meanwhile, Carpenter’s attorneys were meeting with Judge Holmes over another matter that was threatening to hold up Carpenter’s release. While awaiting the May 9 hearing, Carpenter had been housed in the Tulsa County Jail for the last several months. On March 9 of this year, Carpenter and another inmate allegedly assaulted a third inmate with a dangerous weapon, a “metal T-bar,” and Carpenter faced a new charge.
No bond had been set in that case, so legally Carpenter could not be released from the Tulsa County Jail, even though he had been exonerated on the murder charge an hour earlier by Judge Holmes. The assault charge is not scheduled to be heard in court until June 7. All of this set in motion a flurry of last-minute negotiating.
The wheels of justice seemed poised to grind up these petitioners one more time before turning them loose without a final struggle.
The media pack raced back and forth between the courthouse and county jail, which sit a half-mile apart on Denver Avenue. Then the gaggle of reporters and cameramen made the trek a second time back and forth with each update on the behind-the-scenes legal efforts.
A previously scheduled press conference at 5:30 p.m. at a law firm several blocks east of the courthouse had to be scrubbed as the clock passed from afternoon to evening with no final word on what might transpire.
Family members of both defendants spilled in and out of the lobby and parking lot of the David L. Moss Criminal Justice Center while they waited for several hours.
Finally, a jailhouse official confirmed that the efforts had paid off, and both defendants would taste their freedom on this day.
Free at last
Malcolm Scott, who will turn 39 later this month, was the first of the two former prisoners to emerge through the doors down a solitary hallway. He no longer sported a prison jumpsuit. Scott now wore a black suit, crisp white dress shirt, an emerald necktie, black dress shoes and stylish glasses.
His smile, though, said it all.
Scott glowed as he walked victoriously toward the media, who were camped wall to wall where the hall connects to the lobby. Scott walked hand in hand with attorney Lee and Green of the Innocence Project.
“We did it,” he told them.
“I definitely thank Josh (Lee) and the whole Innocence Project for everything that they’ve done to give me my life back,” Scott said to the media. “It’s been a long journey. We made it.
“To my mother, who stood by me through it all.”
Several members of the media interrupted him to say, “She’s right here.”
The sea of onlookers parted, and Ruthella Scott rolled her wheelchair toward her son, who collapsed into her arms. Tears fell from both their eyes as they embraced.
“I love you so much,” Scott told his mother, whose mobility had been disabled by a stroke while he was in prison. “We did it,” he told her.
Scott held the embrace for a minute more, then stood tall and faced the cameras again.
“I don’t know what else I can say right now. … I’m just thankful for a second chance at life. I’m glad that the truth has finally been told.”
Then his sisters broke through the crowd and began hugging Scott. The reunion was on.
The family trickled up two flights of stairs to the second floor, and the media waited for word about Carpenter.
It would be another 20 minutes or more, a sheriff’s department official announced.
More paperwork to be processed, the crowd was told.
Each time the doors opened, it proved to be more false alarms as jailhouse visitors, chaplains and others occasionally broke the tension.
Then, suddenly, there he was.
At 6-foot-3, Carpenter is an imposing figure, especially as he strode next to Innocence Project leaders on each side of him.
His sister, Lametra, didn’t allow him to get more than halfway down the hall before she bolted straight toward him. She embraced her big brother and began wailing to siren that her long fight to secure his release was over. She had long carried the torch for him, calling him a “father figure” in her life because she was only a few years old when Carpenter was sent to prison.
Their mother, Pamela, came next, followed by various family members.
It was now 7 p.m., and all doubts about spending another night away from each other were vanquished.
“I waited a long time for this day – 22 years,” Carpenter said as he finally made it to where the media camped out. “It’s a wonderful day. Amen?”
Dressed in a gray suit, white shirt and gray tie, Carpenter slowly strode through the sea of deadline junkies, headed in the direction of the second-floor press conference that was now almost two hours behind schedule.
On the way, Carpenter’s fiancé, Brandy, and her two young daughters finally got their squeeze.
This was really happening. It wasn’t merely a dream, delayed so many times before.