David Ayers, now 56, alleged police conspired to fabricate a confession he never made, and that they coerced a jailhouse informant whose testimony a federal appeals court found was “both inconsistent and unreliable.” After the U.S. Court of Appeals for the Sixth Circuit ordered a new trial, a newly assigned prosecutor opted not to file new charges against him and Ayers was released from jail in 2011. Additional DNA testing, which prosecutors refused to conduct until a court order, linked the DNA evidence to another man, but prosecutors insisted that even the DNA test was not the reason they dropped charges against Ayers.
Ayers was a security guard in the building where victim Dorothy Brown lived, and was found shaking and bawling shortly after the crime occurred, which caused police to question him. He and another woman said they had helped Brown earlier that day after she had fallen down in her apartment, but police suspected him of lying because they misinterpreted building video footage.
In a ruling rejected the police officers’ attempt to claim immunity from the civil suit, U.S. District Judge James S. Gwin described the officers’ apparent attempts to manipulate the evidence, flagging their particularly alarming focus on the sexual orientation of Ayers:
First, [Ayers] says that Cleveland Defendant Detectives Cipo and Kovach coerced Ken Smith to give false testimony. The Defendants interviewed Smith, and Smith then signed a statement saying that Ayers called him and spoke about Brown’s murder before Brown’s body had even been discovered. Actually, police had records showing that Smith called Ayers, and not that Ayers had called Smith. During the trial, Smith said the written statement was false and testified that Cipo and Kovach pressured him to say that Ayers phoned him prior to the discovery of Brown’s body. Witness Smith now gives an affidavit that states:
the detectives showed me a statement they wanted me to sign. I didn’t want to sign it because I was not sure that it was the truth. The detectives told me that the statement was what I said yesterday, and that if I changed what I said I could be charged with a crime, I think it was perjury. . . . I was afraid to say anything else because they had threatened to charge me with a crime.
Ayers’s alleged confession also raises questions. In her deposition, Detective Kovach testified that on March 14, 2000, Ayers said something to the effect of, “if I say I hit her, can I go home?” Inexplicably, neither Detective Cipo nor Kovach made mention of Ayer’s incriminating question in their contemporaneous report. Then neither Cipo or [sic] Kovach mentioned anything about the confession to a prosecutor until shortly before Ayers’s trial was set to begin. Then, two days after the confession, Defendants Cipo and Kovach again interviewed Ayers yet their notes and reports show no mention of the previous confession, and the interrogation notes suggest that Ayers maintained his innocence. And perhaps most concerning: Defendant Cipo did not mention the confession in his March 17, 2000, affidavit for a search warrant. The inference that the confession was concocted grows even stronger after considering what did make its way into the police reports.Defendants consistently made notes about Ayers’s sexual orientation, his friends’ sexual orientations, and whether people they questioned appeared “gay like.” They noted that certain witnesses “sat like a gay male.” Whatever the police officers meant to imply by sitting “like a gay male,” it surely is less material than an extremely inculpatory statement that Cipo and Kovach say was made by the investigation’s primary suspect during an early interrogation.
This case exemplifies several of the most alarming problems that lead to wrongful convictions. First, prosecutors resisted DNA testing that would have provided objective scientific evidence. Only after lawyers from the Ohio Innocence Project litigated the issue for more than a year were they able to obtain a judge’s order to perform the test. Even those few defendants who have access to the Innocence Project’s excellent legal assistance and are involved in cases where DNA evidence is even available do not always gain access to DNA testing. And a 2009 U.S. Supreme Court decision held that even a man seeking to test his own evidence entirely with his own funds did not have a right to do so.
Second, the case exemplifies the manner in which so-called “confessions” can be manipulated, and while most confessions are not even recorded, even those that are can be far less reliable than most assume.
Lastly, the case shows how investigators and prosecutors who hone in on a certain suspect — often because of biases about irrelevant factors such as sexual orientation — are incentivized to continue pursuing that suspect, even when the evidence is extremely lacking. They may even feel pressure to coerce an informant so that they can claim to have solved and closed a case that might otherwise be more difficult to “solve.”