Man gets second chance to prove his innocence

CARSON CITY — A Las Vegas man serving a life sentence for a murder he says he didn't commit was given a new chance Thursday to argue his innocence by the Nevada Supreme Court.

DeMarlo Berry was convicted of killing Charles Burkes, a Carl's Jr. restaurant manager, during a robbery in 1994.

But in an opinion issued on Christmas Eve, a three-member panel of justices said District Judge Michael Villani erred last year when he denied Berry's petition for a hearing to review new evidence that defense lawyers claim prove he was not the killer.

Justices reversed and remanded the case back to District Court in Clark County for a hearing.

Justice Kristina Pickering said the new evidence, if true, "shows that it is more likely than not that no reasonable jury would convict Berry beyond a reasonable doubt." Justices Mark Gibbons and Nancy Saitta concurred in the unanimous opinion.

Assisted by the Rocky Mountain Innocence Center, defense lawyers say Steven "Sindog" Jackson, a gang member serving a life sentence in California, confessed to the murder in a written statement. Defense lawyers said two others corroborate Jackson's admission.

"We couldn't be more pleased with the ruling," Jensie Anderson, legal director for the innocence center and a law professor at University of Utah, told the Las Vegas Review-Journal. "It does exactly what we think it needed to do, which is give DeMarlo a hearing on his claims of innocence."

Chris Burton, Clark County deputy district attorney, said he has seen the ruling but had no comment.

Besides the statement from Jackson, Richard Iden, a jailhouse snitch who said Berry admitted to the shooting while the two shared a holding cell at the Clark County Detention Center, also has recanted his statement. Iden in a statement said he was coaxed by detectives on his original testimony, twice provided airfare by the prosecution to visit family in Ohio and was put up in a hotel with meals and per diem payments during the trial.

Berry was 19 at the time of the shooting. He claims he was with a friend when he decided to get something to eat at the restaurant, but remained outside when he saw Jackson, described in court documents as a "feared leader of the Crips" gang, inside next to an employee and the cash register.

Berry and others said they saw the shooter leave the restaurant, jump over a wall and flee in a Cadillac driven by someone else.

An anonymous tip identified Jackson and Berry as two possible suspects. Defense lawyers argued that no physical evidence linked Berry to the crime and no attempt was made by police to investigate Jackson.

Given the scope of the new evidence, a jury "would likely have reasonable doubt that Berry committed the murder," justices said.

"We emphasize again that it is not only the strength of the new evidence that is material," the opinion said. "A District Court should examine the evidence that led to the original conviction and especially whether the new evidence diminishes the strength of the evidence presented at trial."

Berry, now 40, remains cautious about his future but remains hopeful, his lawyers said.

"Unquestionably this is very difficult for him. He's been in prison for 20 years," Anderson said.

"He is very skeptical about the situation," said Craig Coburn, a Utah lawyer and member of the defense team, who said Berry has been an inspiration.

"When we met with DeMarlo, I for one was struck by his willingness to smile … and actually show some sense of humor," Coburn said.

The high court's ruling is "kind of a nice Christmas present for everybody involved," he said.

"There's still a lot of work to do, but it gives us some more motivation."

Contact Sandra Chereb at schereb@reviewjournal.com or 775-687-3901. Find her on Twitter: @sandrachereb