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Dismissal of murder case means Las Vegas man will walk free after 22 years

Updated June 30, 2017 - 12:02 am

A judge this week dismissed a decades-old murder case and ordered the release of DeMarlo Berry, a Las Vegas man whose lengthy quest to prove his innocence culminated after prosecutors reviewed new evidence and identified a different suspect in the 1994 slaying of a Carl’s Jr. restaurant manager.

“We’re thrilled for DeMarlo and his family,” said Utah-based attorney Craig Coburn, one of the lawyers who fought for Berry’s release. “He’s a very good man.”

Berry, 42, is scheduled to be released from prison Friday after spending most of his adult life behind bars. He served 22 years of a life sentence for the murder and armed robbery that occurred nearly a quarter-century ago at the fast-food-chain restaurant’s downtown location.

Charles Burkes, 32, was found facedown in the parking lot, killed by a single bullet that struck him in the back of his shoulder.

For years, Berry’s legal team has asserted that incredible trial testimony, as well as a written confession from another man in 2013, proves their client was wrongly convicted.

A Clark County judge on Wednesday signed the order of dismissal that secures the release. The Clark County district attorney’s office had agreed to dismiss the case Tuesday, following a monthslong investigation by members of the office’s newly formed conviction review unit.

Prosecutors for years had fought Berry’s claims of innocence with assertions of his guilt, but on Thursday they hailed the case as the first release resulting from the review unit established in October.

“They’ve finally done what we think they should have done all along,” Coburn said.

Berry was convicted of murder by a split jury, which voted 11-1 for guilt. He agreed to accept the split verdict as part of a deal with prosecutors, who in exchange agreed to stop pursuing the death penalty.

California prisoner confesses

Prosecutors chose to review the case after defense lawyers produced new evidence that, in 2015, led the state Supreme Court to order an evidentiary hearing at which Berry would have the chance to argue his innocence. The evidentiary hearing never happened because prosecutors instead decided to review the case.

A key piece of evidence that led to Berry’s release was an affidavit, written in 2013, by a California prisoner who claimed responsibility for the Burkes murder. The inmate, Steven Jackson, was sentenced to life in prison for a 1996 murder conviction, and Berry previously had identified him as the killer in the 1994 case.

Defense lawyers, who worked in conjuction with lawyers from the Rocky Mountain Innocence Project, submitted the Jackson affidavit to the court several years ago to argue for Berry’s exoneration. They also obtained a statement from a woman who said Jackson confessed the crime to her shortly after the killing occurred.

During the prosecutorial review of the conviction, investigators interviewed Jackson and obtained from him details about the crime scene that only could have been known to someone who was present for the slaying. When asked Thursday whether prosecutors plan to file charges against Jackson, District Attorney Steve Wolfson said his office is considering its options.

Jailhouse informant recants

Other evidence that led prosecutors to review the case was a statement from one of the government’s trial witnesses, who admitted to submitting false testimony. The witness was a jailhouse informant — Berry’s former cellmate, Richard Iden, who testified at trial that Berry confessed to him.

But years later, Berry’s lawyers obtained a written declaration from Iden, who said Berry never confessed to him. Iden also said all the details of the crime he included in his testimony were provided to him by detectives who investigated the case.

The informant testified at trial after reaching a plea deal with prosecutors to settle multiple felony counts. He later admitted that prosecutors purchased him two plane tickets to Ohio to visit his family, and that he was put up in a hotel room with meals and per diem payments during the trial.

Prosecutors’ vehement opposition to Berry’s innocence claims shifted when they decided to review the case. Wolfson, the district attorney, previously has said the conviction review unit only investigates claims of “actual innocence” — as opposed to cases that hinge on other claims, like an unfair trial.

“In this case, a confession by Mr. Jackson, and verification of that and other information by our CRU, resulted in our decision to no longer oppose Mr. Berry’s request for conviction relief,” Wolfson said in an emailed statement.

Berry was serving his sentence at the Southern Desert Correctional Center in Indian Springs. He is to be greeted by his wife and other relatives when he takes his first steps as a free man. He plans to remain in Las Vegas.

Contact Jenny Wilson at jenwilson@reviewjournal.com or 702-384-8710. Follow @jennydwilson on Twitter. Review-Journal staff writer David Ferrara contributed to this story.

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