Cincinnati Police Sued for Burying DNA Evidence that Kept an Innocent Man in Jail on Murder Charges

06.08.18 By Innocence Staff

Cincinnati Police Sued for Burying DNA Evidence that Kept an Innocent Man in Jail on Murder Charges

(Cincinnati, OH — June 8, 2018) Joshua Maxton has sued the City of Cincinnati and two of its police officials for suppressing DNA evidence that proved his innocence and kept him in jail on murder charges, facing a potential life sentence, for nearly seven months. The lawsuit – brought jointly by the Cincinnati law firm of Gerhardstein and Branch and the New York-based Innocence Project, Inc. – not only alleges that police officials violated Maxton’s constitutional rights, but may indicate an even more widespread pattern of suppression of DNA evidence by the Cincinnati Police Department (“CPD”).

Maxton was arrested in June 2015 for the murder of eighteen-year-old Robin Pearl in the North Avondale neighborhood of Cincinnati. After being jailed for nearly a year, a jury found Maxton not guilty of the murder in June 2016. But it was only in the middle of trial that he and his lawyers learned that the police had obtained DNA evidence confirming Maxton’s innocence and identifying another assailant seven months earlier, which they kept hidden.

Soon after Maxton’s June 2015 arrest, witnesses came forward to identify another person named Donte Foggie as the lone shooter. These eyewitnesses stated that Maxton was not the shooter and that he did not even have a gun. Forensic evidence backed them up when no gunshot residue was found on Maxton’s hands. Over the next few months the case unraveled further: a Big K cola can that had been dropped near the shooter’s position on Burton Avenue was tested for DNA. Maxton’s DNA was not on the can. The police learned in October 2015 that the DNA belonged to Foggie.

Records obtained by Maxton’s lawyers and testimony at Maxton’s June 2016 trial made clear that the CPD knew about the DNA evidence. The lead detective on the case, Bill Hilbert, spoke with the DNA analyst on the same day the first DNA report was issued. And the official notification that Foggie’s DNA was on the cola can was emailed by the lab to Det. Hilbert’s supervisor, Sgt. Jeff Gramke. Yet they suppressed the evidence and never told Maxton’s attorneys.

“Police officers have a constitutional duty to promptly turn over evidence that supports a person’s innocence, and our justice system relies on them to honor that duty.”

Maxton was in jail for a year before his case was tried. He was 26 years old and facing life in prison if convicted. He was offered a plea deal but turned it down because he knew he was innocent.

On the fifth day of trial Maxton’s attorneys, through questioning of a laboratory analyst who had been called by prosecutors to testify on another issue, uncovered the hidden evidence that the DNA on the dropped can ruled out Maxton and matched the alternative suspect, Foggie. The jury unanimously found Maxton not guilty of murder on June 2, 2016 and he was released.

“Police officers have a constitutional duty to promptly turn over evidence that supports a person’s innocence, and our justice system relies on them to honor that duty,” said Jennifer Branch, attorney for Maxton. “It’s extremely disturbing to think that police would ever hide DNA evidence showing that they arrested the wrong person – especially in a murder case – but the evidence indicates that’s exactly what happened to Mr. Maxton.”

“Over the last twenty-five years, DNA testing has revolutionized the justice system by clearing the innocent and identifying new suspects,” said Nina Morrison, Senior Staff Attorney at the Innocence Project, which works on DNA exoneration cases nationally. “But the system is only as good as the human beings who operate it. And if law enforcement officials intentionally suppress DNA evidence of someone’s innocence, they need to be held accountable.”

Maxton’s lawsuit seeks not only to compensate him for the seven months he wrongfully spent in jail facing a potential life sentence, but to change CPD procedure to ensure that accused citizens have access to DNA evidence that supports their claims of innocence as soon as the police uncover it.

As of the time of this filing, the person who murdered Ms. Pearl is still at large. The case is pending before U.S. District Court Judge Michael Barrett and is expected to go to trial in late 2019.

Read the full amended complaint here.

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Albert Clay July 5, 2018 at 2:58 am Reply   

Formally a paralegal, this happens all the time, I have a man in prison in Virginia, not only did his lawyer sell him.out, the hair combing (rap case) prove it was not him, dna had just started to be used, there were 11 hair’s obtained in the public combing 7 were the woman’s and 4 we’re nuether her it his. There was another suspect. Meanwhile dna was being used regularly. Learning that in Tidewater Va. They found themselves letting more.people go than before arrest to conviction ratio, So, my guy screaming I want dna testing, I want dna testing. I’m certain with the hair combings withheld they by passed him for obvious reasons. He had a previous conviction, not a sex crime, he robbed a pawn shop. He wrote the innocence project, I filed a written of habeas corpus, but some jail house lawyer had filed one previously, creating a procedural default, he hadn’t subpoenaed the pert hair combings, I did. Yet the district court applied Rule 9(b) governing 2254 and 2255 petitions and ignored the two prong test setting aside defaults of successive writ doctrine, the actual innocence allegation (1) prong one, and prong (2) in violation of a constitutional right. As we all.know a claim.of.ineffective assistance of counsel claim always fails, her it was not needed, the Brady violation is all had to be alleged, yet today he sits in prison, and may have died already, life without parole for an obvious innocent man. Joseph Michael Burns, VA inmate number 103175 God help him.

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