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SALT LAKE CITY — Lawyers for a death-row inmate say they recently learned that Provo police gave money and gifts to the prosecution's star witnesses — information they contend could have changed the case's outcome.
As a result, Douglas Stewart Carter wants a judge to put his appeals in federal court on hold while he argues his post-conviction petitions in state court.
"At the heart of those claims is newly discovered material evidence of false testimony and suppressed evidence — material evidence that Mr. Carter and his counsel were denied for nearly 26 years," according to a motion filed in U.S. District Court.
State attorneys oppose the motion, arguing Carter's "accusation that the state hid evidence has not been proven" and that he has not shown how that evidence would have made a different outcome "reasonably probable." They also say Carter shouldn't be given additional time to make his case.
Of the nine inmates on Utah's death row, Carter, 56, is the furthest along in the appeals process. An execution date has not been set.
A jury convicted Carter of fatally stabbing and shooting 57-year-old Eva Oleson during a robbery at her Provo home in 1985. Jurors relied on Carter's written confession and his bragging to friends Epifanio and Lucia Tovar that he killed a woman.
The Tovars, who were initially scared to talk to police about Carter, testified during trial that other than a $14 check each received, Provo police did not provide them any inducements to take the witness stand. Carter's attorneys say they learned this year that isn't true.
In a sworn declaration, the Tovars say police relocated them twice, paid their rent and utilities, and gave gifts to them and toys to their children. Police also sang Christmas carols at their home and brought them a Christmas tree.
If we had known about the benefits given to the Tovars, I think it would have been a big red flag for reasonable doubt. If it hadn't been for Epifanio Tovar, Carter would not have been convicted.
–- Juror from 1985 hearing
The Tovars say they were told the living arrangements were for protection from Carter. They also say police threatened to deport them, file criminal charges and take away their son if they didn't cooperate in the case. Epifanio Tovar admitted to disposing of Carter's .38-caliber handgun used in the murder.
"Both also indicate that their testimony was 'coached' and, more specifically, that they were instructed to make no mention of the favorable treatment they had received. According to Epifanio, those instructions were the reason he falsely testified to receiving nothing more than a pair of $14 checks," according to Carter's motion.
Carter's defense team obtained sworn declrations from three Provo police officers regarding the case.
Richard Mack confirmed that it was his "responsibility to make certain the Tovars were happy." Officer Stan Eggen confirmed that police "helped the Tovars out" after they were identified as witnesses. Officer Craig Geslison acknowledged the department had procedures for providing benefits to witnesses and informants, including keeping a log book of payments and receipts.
In a sworn statement, one juror who served on the 1985 panel said, “If we had known about the benefits given to the Tovars, I think it would have been a big red flag for reasonable doubt. If it hadn’t been for Epifanio Tovar, Carter would not have been convicted.”
Assistant attorney general Tom Brunker argues in his opposition to the motion for a stay that the Tovars' testimony of what Carter told them about killing Oleson and Carter's own confession are the same.
"He stabbed her eight times in the back, once in the neck, and once in the abdomen. He finally shot her in the back of her head at point blank range, shooting through a pillow to muffle the sound," Brunker wrote.
Carter presented no direct evidence at the 1985 trial that the confession was false, including the admission that he told the Tovars about the murder. The couple, Brunker wrote, has not recanted their testimony.
As for the financial payments, Brunker contends that Mack, the police officer looking after the Tovars, didn't say that the money came from the police department. Furthermore, he says defense lawyers have not produced a log book showing any payments or receipts.
Brunker wrote that Carter's motion made "no allegation that any financial assistance was contingent on the Tovars providing favorable evidence regardless of its truth. It does not even suggest that the alleged benefits the Tovars received were in exchange for testimony against Carter."