Dwayne Provience is doing 32 to 62 years in prison for the 2000 murder of Rene Hunter, who was gunned down at a northwest Detroit intersection.
But now, as Provience attempts to win his freedom, his attorneys are pointing to the fact that, in 2003, the Wayne County Prosecutor's office argued in a second but apparently related murder trial that it was two other men who killed Hunter.
"It's awfully distressing that nobody in the Prosecutor's Office apparently went back and asked, ‘What happened in this first murder while we're prosecuting the second?' and saw, ‘Hey. We argued something different,'" says David Moran, co-director of the Innocence Clinic at University of Michigan Law School who now represents Provience. "I would hope that if that had been done they would have thought to contact Provience's lawyers and say, ‘We think we have some different information.' You would hope that would've happened."
But it didn't.
And this year, thanks to the mother of the convicted shooter in that second case, Provience's attorneys have obtained Detroit police records showing that, within weeks of the killing, investigators suspected other men in Hunter's death.
These records were not provided to Provience's defense attorney during the discovery phase of his trial, according to court filings.
Provience, who is currently in the Handlon Correctional Facility in mid-Michigan, will be in court Tuesday, Nov. 3, in front of Wayne County Circuit Judge Timothy Kenny as he attempts to have his conviction set aside.
In a 2001 bench trial, Kenny acquitted Provience's brother, De-Al Provience, of driving the car from which Hunter was shot, though he denied an earlier motion from Dwayne Provience to have his conviction overturned.
Maria Miller, spokeswoman for the Wayne County Prosecutor's office, declined to comment on the case to Metro Times this week.
"But we will be presenting evidence in court next week," Miller says. "Until the conclusion of this matter we are limited in what we can say out of court."
However, in court filings, prosecutors defend their office's past actions as they continue their fight to keep Provience imprisoned.
Three months after Hunter was gunned down at the intersection of Pembroke Avenue and Greenfield Road, Detroit police questioned a man named Larry Wiley about an unrelated burglary. Wiley, an admitted drug addict, told police he had seen Dwayne and his brother De-Al shoot and kill Hunter. The Proviences, Wiley said, fled westbound on Pembroke in a beige or yellow Buick Regal.
According to court filings, police had statements from at least seven other eyewitnesses — Moran says one was an off-duty police officer — taken within hours of the shooting. All the other witnesses contradicted Wiley, saying the car was gray, and that it left the scene by going northbound on Greenfield. Some witnesses identified the car as a Chevrolet Caprice.
At Dwayne Provience's January 2001 trial, the prosecution subpoenaed only one of those seven witnesses and he failed to show. Provience's trial attorney, Reginald Hamilton, did not call the other six.
Based in large part on Wiley's testimony, Provience was convicted, sentenced a month later and has been in prison since, unsuccessfully filing state and federal appeals, often representing himself.
In 2003, Hamilton lost his law license after the Attorney Discipline Board found he had abandoned representation of two other clients and failed to refund the unearned portion of their attorney's fees.
After Moran's clinic took Provience's case this year, it was discovered that Wayne County prosecutors had argued a completely different theory of Hunter's murder while investigating and trying a second killing.
"Shifting theories is like changing clothes to them, and it's a little disturbing," Moran says.
In addition, Wiley has flip-flopped his testimony. He told Provience's attorneys earlier this year that he lied when testifying that he saw the Proviences kill Hunter. A polygraph test supported that recantation. But when an investigator for prosecutors interviewed him earlier this year, he stood by his original claim that the Proviences were responsible for the murder. He refused to testify at a hearing for Provience earlier this year, claiming his Fifth Amendment privilege against self-incrimination, according to court records.
Just a month after Hunter's murder, Courtney Irving was shot and killed less than a mile away. The case remained unsolved for two years until a multi-jurisdictional task force re-investigated it and found witnesses who identified Eric Woods as the shooter.
After he was arrested in 2002, Woods admitted in a written statement that he killed Irving.
Woods claimed, however, that he was coerced into committing the murder, alleging that brothers Antrimone ‘Terry' Mosley and Sorrell ‘Reddy' Mosley told him they wanted him dead because they thought he stole drugs and money from them. But they said they'd let him live if he killed Irving, according to a statement he gave police.
This is where that case ties in with the murder of Rene Hunter, who, according to Woods, was actually killed by the Mosley brothers because they believed he had robbed them.
The brothers then became worried that Irving was going to finger them for the Hunter murder, and offered Woods a deal, saying he would be spared in return for killing the suspected, would-be snitch, Woods alleged.
At Woods' trial for Irving's murder in 2003, then-Wayne County assistant prosecutor Eric Restuccia told jurors that it was the Mosley brothers who killed Hunter — even though Provience had been convicted of that crime two years earlier.
"The background started, in part, ... when Rene Hunter was murdered," Restuccia told jurors in his closing argument. "... Rene Hunter, Mr. Irving and Mr. Woods, they had all been friends. Mr. Irving was going to go to the police and tell them about the Mosleys' connection to this crime [Hunter's killing.]"
Restuccia currently is Michigan's solicitor general, representing the state before the Supreme Court. He was appointed by Attorney General Mike Cox, who was the head of homicide for the Wayne County Prosecutor's office during the investigations of the Hunter and Irving killings. Restuccia did not respond to a Metro Times request for an interview.
Woods is now in the Alger Correctional Facility in the Upper Peninsula serving a life sentence for Irving's murder. He filed a petition in U.S. District Court seeking his release, which Judge George Steeh denied in March.
In his opinion, Steeh wrote, "The prosecution's theory at trial was that Woods and his friends [the Mosley brothers] were friends of Irving. ... According to the prosecution, the Mosley brothers were involved in a murder ... of an individual named Rene Hunter."
One of the Mosley brothers is dead, according to Moran, and the other lives out of state.
As co-director of the Innocence Clinic, Moran oversees the work of law students who work on wrongful conviction cases that don't have DNA evidence. The students research, investigate and argue in court for defendants they believe are innocent of the crimes of which they've been convicted.
One of the students found Steeh's opinion in the Woods case and realized it could help their client, since it showed the prosecution had presented a different theory of the Hunter killing in a different trial. While doing more research, one of the law students met Woods' mother, who provided potential evidence neither Provience nor any of his attorneys had seen.
"The investigative reports explicitly tie the murder of Courtney Irving to that of Rene Hunter," Provience's attorneys wrote in court filings. The two pages of "Progress Notes" were written between April 24 and May 15, 2000, and the names of two Detroit police sergeants appear on the reports, one of whom was the officer in charge at Provience's trial.
The notes describe the Mosleys' drug operation, and how shortly before Hunter was killed, the Mosleys left their home in a gray Caprice following him.
The "homicide files are joined at the hip because the two complainants were together when Rene got killed and Courtney was going to tell who and why they killed Rene," the notes read.
Provience's attorneys argue the failure of police or prosecutors to provide the notes to Provience's original defense is a violation of the due process clause that requires the sharing of exculpatory evidence before trial.
Prosecutors argue they did not suppress the evidence. "Documents were in the prosecution's file and defense counsel had access to that file and could have inspected it," they wrote in a court filing last month.
Provience's trial lawyer, Hamilton, filed an affidavit last month saying that he had never seen the "progress notes" and that he did not know Detroit police had information implicating the Mosleys in Hunter's death.
Gail Rodwan, a lawyer with the State Appellate Defender Office, handled Provience's unsuccessful appeal in state courts in 2001, following his conviction. She filed an affidavit last month in Provience's motion to set aside his conviction stating she had no knowledge of the case against Woods or of the prosecution's alleged connection between Provience and Woods when she represented Provience. She declined to discuss the case with Metro Times, citing her probable testimony at the Nov. 3 evidentiary hearing.
How the Wayne County prosecutor's office could seek two convictions using materially inconsistent theories is something attorneys may have to explain to Judge Kenny at Tuesday's hearing.
Moran, meanwhile, says he wonders about matters not covered in the court records.
"The real question is, why do they keep fighting us?" he firstname.lastname@example.org