Judge agrees to put justice to the test to see if these two men
were wrongfully convicted in drive-by shooting
By W. Kevin Armstrong
OKJ2 – Oklahoma Journalists for Justice
Five young men lost their way Sept. 10, 1994, after shots fired from a car passing by a house party left a young woman dead and two other people wounded.
The mystery lingers over who was in that car and who fired the gun even though a Tulsa County jury convicted two of the five men in November 1995, charging them with first-degree murder.
DeMarchoe Carpenter and Malcolm Scott were both 17 at the time of their arrests and have spent the last 21 years in Oklahoma prisons, paying for a crime they steadfastly maintain they never committed.
Over the years, the other three males – Michael Lee Wilson, Billy Don Alverson and Richard Harjo – have shed their silence and confessed through written affidavits that they were the perpetrators, not Carpenter or Scott. None of that, however, has mattered legally – until now.
On Jan. 29, 2016, Carpenter and Scott got their long-awaited day in court and a chance to prove their innocence. They sat shackled before Tulsa County District Court Judge Sharon Holmes as their attorneys presented live, written and videotaped testimony from several witnesses and introduced new evidence, trying to prove the legal system failed in this case.
More than 50 family members, friends and media members packed the fourth-floor courtroom and listened for more than seven hours as defense attorneys reconstructed a 20-year-old trial and challenged its findings. Private attorney Ken Sue Doerfel and Oklahoma Innocence Project Executive Director Vicki Behenna represented Carpenter at the post-conviction relief hearing, while Christina Green, interim legal director of the Oklahoma Innocence Project, and private attorney Joshua Lee represented Scott.
Tulsa County Assistant District Attorney Jimmy Dunn was not part of the state’s prosecution of Carpenter and Scott in 1995, but he defended the jury’s guilty verdict by reminding the court Jan. 29 that all of this happened amid a sea of gang warfare in North Tulsa during the mid-1990s. He pointed out the inconsistencies of people wanting to change their testimonies years later and questioned why they didn’t try to set the record straight earlier.
The four defense attorneys countered that the two key witnesses who testified against Carpenter and Scott in the 1995 trial did so out of fear for their own well-being and have since recanted their testimonies as adults. The attorneys also emphasized that the three people responsible for the shootings have come forward and admitted their guilt.
Kenneth Price and Rashaun Williams were among the 75 to 100 people who attended the 1994 house party on East 29th Street North, both inside the small dwelling and outside in the yard. The party began as night fell Friday, Sept. 9, 1994, and continued into the dark wee hours of Sept. 10.
Price was one of only three people at the party to be hit by bullets during the drive-by shooting. He was struck in the buttocks by a single bullet and testified at the 1995 trial that he saw Carpenter and Scott in the car from which the gun was fired. Price was standing outside near the street next to his friend, Karen Summers, at the house party that night. A bullet struck and killed her.
Price testified in court Jan. 29 that he never actually saw who was in the car the night of the 1994 shooting.
Then why, defense attorneys asked, did he say differently in 1995?
Police “coerced” him into saying that, Price testified.
“The police came three or four times to ask us (he and Williams) about it” right after the shooting, Price said Jan. 29. “I kept telling them I didn’t see who did it.”
Price said police told them, “We could file charges on you guys, so you pretty much need to say you saw who did this.”
Price, who was 16 at the time of the shooting, said he was afraid that the police were going to try and pin some blame on him, so he decided to tell police that Carpenter and Scott were in the car. Knowing that police had already arrested the two teens influenced his decision, he added.
“I just thought, ‘once the police get you, they got you,’” Price said Jan. 29. “I was just a kid. I didn’t know anything about the process.
“The police coerced us and put our backs up against the wall.”
Under cross-examination Jan. 29, prosecutor Dunn asked Price why he was changing his testimony from years earlier.
“I was coerced,” Price said again, becoming agitated over having to repeat his answer. “I was a boy then, and I was doing boy things then. I’m a man now.”
Dunn read aloud some of Price’s testimony made during the 1995 trial and asked if he recalled making those statements.
“Disregard that,” Price stated emphatically.
“Did you lie?” Dunn then asked him.
“Yes, it was a lie,” Price said. “They (the police) made us lie.
“It was a messed-up situation then.”
Price tried twice between the 1995 trial and the recent Jan. 29 hearing to set the record straight. He signed affidavits in June 2010 and in February 2014 saying he did not see who shot him or who was in the car during the drive-by shooting.
Williams was unable to testify at the Jan. 29 hearing because he died in 2013. He, however, filed an affidavit in June 2010 saying he was at the party but did not see Carpenter or Scott during the shooting, despite testifying in the 1995 trial that he did see them.
“I was at the party that got shot up all those years ago but I didn’t see anything,” Williams wrote. “It was officers for the Tulsa Police Department that coerced me into making statements that weren’t true. They told me I would be charged for the murder if I didn’t want to go to prison so I got on the stand and told the jury what officers told me to say.
“I didn’t understand what I was doing at the time but now that I am grown, I realize I made a huge mistake because I really believe two innocent men are in prison for a murder that they didn’t commit.”
A PLEA DEAL
Back in 1994, Tulsa police had arrested a third suspect in the drive-by shooting – Michael Lee Wilson – but his charges were reduced to being an accessory after the fact, even though police found both the car and murder weapon in his possession. Wilson told detectives that he was holding onto the gun for Carpenter after the shooting and that he was not in the car that night when Summers was killed.
According to the 1995 trial transcript, Tulsa Police Detective Michael Huff went to Wilson’s house Sept. 11, 1994, to question him about the drive-by shooting a day earlier and to ask him about another shooting that occurred the previous Wednesday in which Wilson had been shot in the leg. When Huff approached Wilson’s house, he discovered a maroon Ford Taurus that matched the description of the car used in the drive-by shooting.
A receipt showed that Wilson had rented the Taurus from Enterprise while his car was in the shop being repaired.
Huff asked Wilson if he would come to the police station to answer questions, and Wilson responded that he first would like to call his mother and go into the house and change his shoes. Huff followed Wilson inside, and while they were there, the detective saw Wilson attempt to hide a handgun. The Lorcin .380 caliber automatic was confiscated by Huff and several days later was shown through laboratory testing to be the one that fired the bullet found in Summers’ body.
Carpenter, Scott and Wilson were charged with the murder of Summers, but police later dropped the murder charge against Wilson for agreeing to testify against Carpenter and Scott at a preliminary hearing. Wilson posted the $5,000 bail on his reduced charge of being an accessory and was released.
Five months later, while Carpenter and Scott remained in jail awaiting trial, Wilson became the central focus of another murder. Wilson, along with close friends Billy Don Alverson, Richard Harjo and Darwin Brown were each charged with the Feb. 25, 1995, killing of Richard Yost, who worked with Wilson at a QuikTrip store in North Tulsa. Evidence showed Yost had been struck more than 30 times with a baseball bat inside the store’s cooler after he had been tied up by his killers.
Wilson now faced the possibility of being sentenced to death for that crime when he was called to testify in the November 1995 trial of Carpenter and Scott. According to the trial transcript, Wilson refused to answer questions on the stand about Summers’ death, except to say in a combative exchange with prosecutors that he didn’t remember. The judge found Wilson in contempt of court. That left Price and Williams as the primary witnesses in the state’s case.
On Nov. 8, 1995, a jury deliberated almost nine hours before convicting Carpenter and Scott of first-degree murder, two counts of shooting with intent to kill and one count of using a vehicle to discharge a weapon. The 18-year-olds were sentenced to life in prison, two 75-year terms for shooting with intent to kill and 20 years for the vehicle charge. No physical evidence had linked them to the crime.
Michael Harris was the public defender who helped represent Scott in the trial. He was called to the stand Jan. 29 to recall what happened during the 1995 trial.
Harris testified that the prosecutors in 1995 “claimed that this was an act of gang violence” by “scary black guys.” He said prosecutor Mark Collier referred to Scott and Carpenter by their street names throughout the 1995 trial to reinforce that image.
Harris said there was no physical evidence introduced at the trial that connected Scott and Carpenter to the murder. The case was based entirely on the testimony against them.
He recalled how the jury deliberated for nine hours and how jurors “took their responsibility very seriously.
“By 2 a.m., they were tired, they were scared and they wanted to go home. And who would blame them?” Harris said of the jury finally reaching a verdict.
Defense attorney Lee asked Harris Jan. 29 if the prosecutor had ever offered Harris’ client a plea agreement during the trial.
Yes, Harris said. About four to five hours into the jury’s deliberations, the prosecution offered a sentence of eight years in prison in exchange for Scott and Carpenter pleading guilty, Harris said.
Some members in the courtroom Jan. 29 audibly gasped to learn that such a deal had been offered.
Lee asked Harris what Scott and Carpenter thought about the deal.
“They were young,” Harris said. “They did not consider the offer. They were not going to plead guilty to a crime they didn’t commit.”
Carpenter and Scott appealed their convictions over the years but could not convince any of the state’s courts that the wrong guys were in prison for Summers’ murder. Things began to change, though, when the newly-established Oklahoma Innocence Project took an interest in their case in 2011.
Much of that interest stemmed from some correspondence among prisoners.
Wilson, Alverson, Harjo and Brown had been found guilty in 1997 of Yost’s 1995 murder. Wilson, Alverson and Brown were sentenced to death by lethal injection, but the jury spared Harjo because he was 16 years old at the time of the crime. He received a life sentence in prison without the possibility of parole.
With the Yost case having sealed their fates, their thoughts seemed to return to what had transpired with Carpenter and Scott being convicted of the 1994 murder of Summers.
Harjo signed an affidavit in August 2001 saying that he was an eyewitness to the Sept. 10, 1995, shooting of Summers and that Wilson was the one who fired the shots from the back seat of Wilson’s rental car. Harjo said “two people who had nothing to do with the crime were charged and erroneously convicted of.”
In March 2007, Wilson sent a letter to Scott saying the same thing. Wilson admitted in the letter to being the shooter.
Then in February 2010, about 11 months before he was executed by the state for Yost’s murder, Alverson wrote a letter to Carpenter saying Carpenter and Scott were wrongfully convicted of a crime that had been carried out by him, Wilson and Harjo. Alverson offered details about the drive-by shooting and said he would have testified to this in court but “I was never called.” He added, “I should have written this years ago when you first contacted me.”
Wilson signed an affidavit in late December 2013 again saying he had killed Summers and that he was sorry that Carpenter and Scott had been convicted of his crime.
Wilson agreed to make a videotaped statement to the Oklahoma Innocence Project on Jan. 7, 2014, saying he was Summers’ killer and that Carpenter and Scott were wrongfully convicted of it.
That video was admitted into evidence at the recent Jan. 29 hearing before Judge Holmes and shown in court.
Wilson said he could not believe that Tulsa police let him go free in 1994 after finding him in possession of the murder weapon used to kill Summers.
“It kind of blew me away that I got caught with a gun and they just let me go,” Wilson said. “They didn’t arrest me for possession of a firearm or anything.”
Wilson said in the videotape that he never told anyone during the investigation or on a witness stand that Scott or Carpenter shot Summers or anyone else at the party. Instead, he just let the police believe what they wanted so he didn’t have to take the blame. “They let me go,” he said repeatedly during the videotaped confession.
Wilson told how he had directed Alverson to drive him past the house party that night because he was looking for revenge for him being shot a few days earlier by a rival gang. Wilson admitted that he fired the gun out an open window in the backseat of the car. Wilson said he wanted to set the record straight before he died, hoping it would help prove Carpenter and Scott were innocent.
“I know it’s kind of late in the fact, but I want to make sure I make this right,” Wilson said. “Even in my final statement when I go up there, I’m going to mention this, too,” referring to his execution.
Two days after making the videotape inside the Oklahoma State Penitentiary in McAlester, Wilson was wheeled into the execution chamber. Moments before he was injected with lethal drugs, he used part of his final statement to try one more time to clear his childhood friends.
“Malcolm Scott and Demarcho Carpenter are innocent,” he said.
Wilson died moments later, leaving Harjo as the only person still alive who claimed to be in the car on the night of the drive-by shooting in 1994.
THE ONLY ‘LIVING LINK’
Harjo agreed to testify in the recent Jan. 29 hearing, and he was brought to Tulsa from Lexington, where he currently is incarcerated at Joseph Harp Correctional Center.
Defense attorney Doerfel referred to Harjo in court as “the critical living link to what happened that night” in 1994.
Harjo acknowledged, under questioning by Doerfel, that his testimony could put him in the position of having additional criminal charges brought against him.
Harjo testified that he was 19 years old when he was convicted for the Yost murder and was sent to the Oklahoma State Penitentiary in McAlester in 1997. Wilson and Alverson also were housed at that same prison, and Harjo testified Jan. 29 that he was scared to say anything about Carpenter and Scott’s innocence back then for fear of retribution.
Doerfel asked Harjo what happens to “snitches” in prison?
“If you tell on people, you get killed,” Harjo said.
Harjo explained that Alverson had fathered three children with Harjo’s sister Jennifer and that they lived together in 1994, just around the corner from where the house party had taken place.
Harjo gave this account on the witness stand Jan. 29 about what happened in the early morning hours of Sept. 10, 1994:
“Me and Billy was at my sister’s house, and Michael Wilson came by.”
He said the three of them planned to go to some nearby nightclubs, but Wilson wanted them to first drive down the street in the other direction.
“Billy was driving. I was in the passenger seat. Michael was in the back seat on the driver’s side,” Harjo said. “Michael told Billy to slow down when we got close to the party. When we got to where the party was, Michael started shooting out of his window.”
Harjo said he was never questioned by police or by any of the public defenders representing Carpenter and Scott in 1994 or 1995.
“I probably would have come forward and told them the truth,” Harjo said in response to a question about what he would have done had he been asked back then about the Summers’ murder.
DECIDING THE TRUTH
During closing arguments, defense attorney Doerfel reminded Judge Holmes of the fear that witnesses felt when they testified in 1995 and how they felt remorse over the years that they had not come forward sooner to say that Carpenter and Scott were not guilty.
They were “young boys caught up with older gang members who had to make choices,” Doerfel said. “They were not hardened adults then.”
Defense attorney Behenna said the case comes down to this question today: If the jury in 1995 had heard all the evidence and statements presented Jan. 29, 2016, would they have convicted Carpenter and Scott of killing Karen Summers? She believes they would not.
For the Tulsa County District Attorney’s Office, it’s all about whether or not the truth has changed since the 1995 trial. Prosecutor Dunn stands by the jury’s convictions that came just one year after the crime.
The court must decide if Price and Williams were truthful then or truthful now, Dunn said.
The verdict now rests in the hands of a single person: Judge Holmes.
She has the power to say Carpenter and Scott should remain in prison because they did not meet the burden of proof that they were wrongly convicted, or she could order that they be given a new trial, or she could exonerate them of Summers’ murder and set them free.
“Both sides have made some very intelligent arguments,” Holmes declared a few minutes after 5 p.m. Jan. 29.
“This is not something I should take lightly or can take lightly or will take lightly,” Holmes continued. “I am dealing with people’s lives. It is incumbent on me to look in every nook and cranny, if you will, before I make my decision.”
Holmes said she will render that decision Wednesday, April 13, at 9 a.m.
Writer Hannah Covington contributed to this report.