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Wrongly Convicted Database Record
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Charge: |
Murder and Robbery |
Sentence: |
Life Imprisonment with possibility of parole |
Years Imprisoned: |
23 |
Year Crime: |
1992 |
Year Convicted: |
1995 |
Year Cleared: |
2017 |
U.S. State or Country of Crime: |
Nevada |
County or Region of Crime: |
Clark |
City of Crime: |
Las Vegas |
Result: |
Judicially Exonerated Released |
Summary of Case: |
"DeMarlo Antwin Berry was wrongly convicted in 1995 of murder, robbery, and burglary of a man near a Carl's Jr. fast-food restaurant in downtown Las Vegas in April 1994. Berry's prosecution was based on his positive identification by an eyewitness from a photographic lineup, and his initial identification by three other eyewitnesses that he resembled the perpetrator. Duirng Berry's trial those four eyewitnesses, plus a fifth, positively identified Berry as the shooter, and a jailhouse informant, Richard Iden, testified that when he and Berry were in a holding cell together that Berry confessed to committing the robbery and murder. The murder weapon was not found and Berry's prints didn't match any of the 32 fingerprint and palmprints recovered from the crime scene. Berry testified in his defense that he had been been walking up and down Fremont Street selling drugs, and he was standing outside the Carl's Jr. and witnessed some of the events that occurred inside -- but not the actual shooting -- and that he recognized "Sindog" Jackson who was the leader of the San Bernardino Grips gang as the person who left the Carl's Jr. and ran away. Berry also said that he never confessed to Iden and he denied Iden's claim that they had known each other since 1990. The prosecution had filed a notice to seek the death penalty, and after the guilt phase of his trial the jury deadlocked at 11 to 1 -- although it was known if the jury favorced guilt or acquittal. Berry agreed to the prosecution's offer to withdraw its notice to seek the death penalty if he would stipulate to his right to a unanimous jury verdict. The jury came back with an 11 to 1 vote for his guilt. After his conviction, Berry agreed to the prosecution's offer that it would not seek life in prison without the possibility of parole as a sentence if he would waive his right to have a three-judge panel decide his sentence. On July 3, 1995 Berry was sentenced by his trial judge to consecutive sentences of 10 years in prison for burglary, 15 years in prison for robbery with a deadly weapon, and life in prison with the possibility of parole. for murder with a deadly weapon. Berry's convictions and sentence were affirmed by the Nevada Supreme Court on June 17, 1997. Berry filed a timely post-conviction petition for a writ of habeas corpus that alleged his trial lawyer was ineffective for advising him to agree to stipulate to a waiver of his right to a unanimous verdict. The district court denied that petition and the NSC affirmed that ruling on April 6, 2001, on the basis that the U.S. Supreme Court has never held that a state defendant is guaranteed the right of jury unanimity in a non-capital case, and, "It was not unreasonable for Berry's counsel to advise Berry to waive unanimity in consideration of the State removing a possible death sentence." (Berry v. State, No. 35201 (NSC, 4-6-2001) In 2005, an investigator working on Berry's behalf contacted Steven "Sindog" Jackson in prison in California for a 1996 murder, and was unsuccessful in obtaining a confession from him. In 2013 investigators working on Berry's behalf did obtain an Affidavit from Steve Jackson in which he stated: "I committed the robbery that resulted in the murder of Charles Burkes. DeMarlo Berry did not commit this crime, nor did he have any involvement in the commission of this crime." Richard Iden also provided a declaration in which he recanted his trial testimony, stating: ""I testified falsely . . . at Demarlo Berry's murder trial in 1995 . . . Demarlo Berry never confessed to me." He also stated that his testimony about knowing Berry since buying some drugs from him in 1990 was false, and that in fact he first met Berry when they were briefly in a holding cell together, during which Berry didn't make any incriminating statement. Iden also detailed how the prosecution provided him with money for his meals and hotel during the trial, and paid his airfare twice from Ohio to Las Vegas. Investigators also obtained a declaration from Maisha Mack that shortly after the murder Steven Jackson confessed to her that he shot the victim, Charles Burkes. On May 2, 2014 Berry filed his third post-conviction petition based on the three witness declarations. The Clark County District Attorney's Office vigorously opposed Berry's petition, which was summarily denied on August 20, 2014 by District Court Judge Michael Villani. Berry appealed, and on December 24, 2015 the Nevada Supreme Court remanded for an evidentiary hearing. Prior to the evidentiary hearing being held, on June 28, 2017 the Clark County District Attorney's Office motion to dismiss the charges was granted and DeMarlo was ordered released by Judge Villani. The DA's Office stated that its decision was prompted by an investigation by the Clark County District Attorney's Conviction Integrity Unit that determined Jackson's confession was truthful. It was the first conviction vacated after an investigation by the Clark County DA's CIU." |
Conviction Caused By: |
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Innocence Proved By: |
"On June 28, 2017 the Clark County District Attorney's Office to dismiss the charges was granted and DeMarlo was ordered released." |
Defendant Aided By: |
Rocky Mountain Innocence Center |
Compensation Awarded: |
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Was Perpetrator Identified? |
Yes |
Age When Imprisoned: |
18 |
Age When Released: |
42 |
Sex: |
Male |
Skin/Ethnicity: |
Black |
Information Source 1: |
"After 22 years, Las Vegas man getting out of prison after another confesses, By Jenny Wilson, Las Vegas Review-Journal, June 29, 2017" |
Information Location 1: |
https://www.reviewjournal.com/crime/homicides/after-22-years-las-vegas-man-getting-out-of-prison-after-another-confesses/ |
Information Source 2: |
"Demarlo Antwin Berry v. State of Nevada, 363 P. 3d 1148 (Nev Sup Ct, 12-24-2015) (Remanding for an evidentiary hearing.)" |
Information Location 2: |
"https://scholar.google.com/scholar_case?case=12779702614086029568&q=demarlo+berry&hl=en&as_sdt=6,48" |
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Innocents Database Created and Maintained by Hans Sherrer innocents@forejustice.org