By Darla Shelden
City Sentinel Reporter
(Oklahoma City, OK – With the consent of the Oklahoma County District Attorney, district court judge Glenn M. Jones vacated the 1992 murder conviction and dismissed the charges against Johnny Edward Tallbear based on new DNA evidence proving his innocence.
Tallbear served 26 years for murder based on the erroneous statements of an alleged eyewitness who claimed to have seen Tallbear fighting with the victim but later expressed doubts about his identification.
“We are grateful to District Attorney David Prater and Assistant District Attorney Jen Hinsperger for collaborating with us to secure DNA testing in this case, and for expeditiously moving to vacate Mr. Tallbear’s conviction once the results were obtained,” said Karen Thompson, a senior staff attorney with the Innocence Project, which is affiliated with Cardozo School of Law. “The DNA proving Mr. Tallbear’s innocence was pivotal to bringing an end to his wrongful Incarceration.”
Tallbear was represented by Thompson and local attorney Douglas L. Parr.
Tailbear said, “I’ve been saying for more than two decades that I didn’t have anything to do with this horrible crime. I’ve always known that I’m innocent and now the DNA has proved it.”
On October 3, 1991, the body of a homeless man, known as “Pops” (there was no identification on the body), was found on top of a pile of garbage near a deserted building in an area of Oklahoma City frequented by a homeless population. The man had been brutally stabbed and beaten.
According to a press release sent to The City Sentinel “the pockets of his pants were turned inside out and had small bloodstains on them.”
Police also collected several pieces of torn up paper bag left on the ground near to the victim’s body that they believed had been used to “staunch a wound” the release said.
Tallbear became a suspect after a man named Floyd Lewis, who lived in the same neighborhood, alleged to police that he witnessed two men fighting with a third man, who was lying on the ground.
Lewis claimed that from the distance of a football field away, at dusk, he saw two men on their knees beating the victim. In addition, Lewis claimed that after he yelled at the men to stop, one of them stood up and, while “making Indian,” shook a cane. Seeing this, Lewis stated, “he knew it was Tallbear.” It was based on this false identification – and no other evidence – that Mr. Tallbear was prosecuted and convicted.
At a preliminary hearing, Lewis stated, “I don’t think Tallbear done it.” Nonetheless, Lewis went on to identify Tallbear at his subsequent trial, testifying that he saw Tallbear and another person fighting with the victim, although he was unable to identify the second assailant.
“The original forensics were done by Joyce Gilchrist who Prater agrees was a problem analyst,” Parr said. “We had confirmed that the evidence still existed and appeared to be testable. The original case was extremely weak to begin with based only on the testimony of a single eye witness.”
At trial, the state also relied on Gilchrist’s testimony of later discredited forensic analysis. A preliminary study conducted by the FBI in 2001, how Gilchrist made outright errors or overstepped “the acceptable limits of forensic science” in at least five of her cases.
This finding led to a comprehensive review, at the direction of former Governor Frank Keating, of thousands of cases handled by Gilchrist as a state forensic analyst between 1980 and 1993.
Gilchrist performed basic serology (blood type testing) and claimed to have found four different blood types at the scene. While Gilchrist acknowledged that Tallbear didn’t match any of these blood types, her conclusion that there were four blood types called into question whether the blood was related to the crime (as there were only two assailants) and diminished the significance of Mr. Tallbear’s exclusion from the blood types found at the scene.
The district attorney stood by the strength of the eyewitness identification and argued that while “the forensic evidence did not tell us very much…There’s evidence of several different blood types and enzyme activity.”
During the trial, there was no physical evidence linking him to the crime and Tallbear’s physical therapist testified he had recently undergone surgery to remove gangrene from his leg, making “walking very difficult,” confining him to a wheelchair and rendering him unable to walk distances, kneel or stand for long periods of time. Nevertheless, the jury found Tallbear guilty and sentenced him to life without parole, a sentenced later modified by the Court of Criminal Appeals to life imprisonment.
Tallbear, who always maintained his innocence, reached out to the Innocence Project for help.
With the consent of the Oklahoma County District Attorney’s Office, the Innocence Project conducted DNA testing on the bloody bags that police believed were used to stop bleeding and blood found on the inside out pockets of the victim’s pants.
The testing identified DNA belonging to the one unknown male in blood found on two pieces of the collected bags and DNA belonging to another unknown male in the blood found on the victim’s pockets. Tallbear was excluded from all of the profiles. DNA testing also revealed that Gilchrist’s serology results were, once again, false.
Gilchrist had incorrectly attributed blood from an unknown male to the victim and from the victim to an unknown male. Aside from the victim, only two blood types were found on the crime scene evidence, consistent with the eyewitness’ account.
Based on these results, the District Attorney’s Office agreed to join a motion to vacate the conviction which was granted today and to dismiss the indictment against Tallbear, allowing him to regain his freedom for the first time in 26 years and advancing the cause of justice.
Eyewitness misidentification is a leading contributor to DNA-based exonerations.
District Attorney Prater and Oklahoma City Police Chief Bill Citty have taken the lead in implementing evidence-based practices that reduce the risk of eyewitness misidentification in Oklahoma City.
“To prevent these types of injustice, other jurisdictions across the state should follow their lead,” according to Thompson.
In an email today from the Innocence Project, Maddy deLone, the organization’s executive director wrote, “We are thrilled to welcome Mr. Tallbear home.”
For more information, visit innocenceproject.org.