Death row inmate will get new hearing after evidence shows Provo police bribed witnesses
By Ashley Stilson
The Daily Herald
After finding new and "damning revelations," the Utah Supreme Court is granting a new hearing to a man convicted of killing the aunt of a Provo police chief almost 34 years ago.
In an opinion published Friday, justices determined that the Provo Police Department had threatened and bribed two witnesses who testified at the murder trial in 1985.
"We hold that there exists a genuine dispute of material fact as to whether the outcome of the trial would have been different but for the absence of the evidence," the opinion states.
Douglas Stewart Carter has spent more than 33 years on death row after a jury convicted him of killing 57-year-old Eva Olesen.
The woman was halfway through knitting a sweater inside her Provo home when Carter reportedly stabbed her eight times in the back and shot her in the head.
The woman also had several of her clothes removed and her hands were tied behind her back. The gun used in the murder was never located, but the knife had come from the Olesen's kitchen, investigators reported.
Carter was one of eight suspects being investigated for the murder. Although 19 fingerprints and a blonde hair were recovered at the scene, none of the physical evidence linked Carter to the crime.
When Carter's wife spoke to police, she said Carter and two friends had decided to go to Olesen's house to steal her necklace. One of the friends reportedly had a grudge against the then current Provo Police Chief Swen Nielsen.
Carter's wife said her husband waited in the car while the two friends entered the house and that he was unaware of what happened until the two men returned.
A jury still convicted Carter based "no small measure on the testimony of Epifanio and Lucia Tovar," the opinion stated.
The couple testified that Carter had visited them after the murder and he had "laughed and giggled" when he showed them how he had killed Olesen.
"The Tovars’ testimony regarding Carter’s state of mind gave the State the evidence it needed to argue aggravating circumstances to the jury and push for the death penalty," the opinion states.
Shortly after testifying, the couple disappeared. Prosecutors claimed they were unable to testify because the family had fled the country.
When Carter appealed the death sentence, another jury convicted him again based on the Torvars' prior testimony, which had to be read to the jury.
Carter continued to appeal and through a coincidence, his attorneys located the Torvars in 2011.
The couple then told the counsel that Provo police officers had threatened them with deportation, prison and the removal of their son if they did not cooperate in the case.
"Mr. Tovar declared that he felt pressured 'before, during and after' his interrogation and that he was told things 'would go badly' for him if he did not cooperate. He claims that he feared for the welfare and safety of his family due to police threats," the opinion states.
Officers also reportedly "coached" the couple on their testimony, paid for their rent while waiting to testify at trial and ordered them to lie about the financial support.
The couple were moved to new apartments before the trial and received gifts like food baskets or children toys. On Christmas Day, the police force came caroling to the apartment and delivered a Christmas tree.
"Furthermore, both of the Tovars assert that the prosecutor spoke with them before trial and told them what he wanted them to say in their testimony, and the Tovars felt they had no choice but to comply in light of the threats of deportation and separation," the opinion states.
A former officer also stated it was his responsibility to "keep the Torvars happy" and bought them groceries and Christmas gifts.
When presented with this evidence, the district court dismissed the appeal again. The Utah Supreme Court reversed the decision and ordered another hearing.
"It is clear then that the Tovars’ testimony was crucial at both the guilt and sentencing phases of Carter’s trial," the justices wrote. "Carter argues that the financial benefits provided to the Tovars demonstrate that the Tovars’ testimony was 'bought and paid for by police.'"
The testimony provided by the couple was inconsistent and "tainted as a whole" during the trial, the justices determined.
While Carter also admitted to the murder after interrogation by investigators, his attorneys claimed the testimony was coerced.
The justices wrote that if the jury had heard about the threats, bribes, gifts and coaching, the outcome of the trial may have changed.
"We may not be certain that disclosure of the evidence contained in the Tovars’ declarations would have resulted in a different sentence," the opinion stated.
The case will be sent back to the district court for an evidentiary hearing. No court date has been set.
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