BY DAVID PORTER| ASSOCIATED PRESS
NEWARK, N.J. (AP) — Two New Jersey men who have served more than 20 years in prison for a double murder have a chance at a new trial after a state appeals court ruled that newly discovered evidence could clear them.
The ruling means Kevin Baker and Sean Washington could go free if the state decides not to retry them. The court gave the state 60 days to appeal Thursday’s ruling to the Supreme Court.
Baker and Washington have been in prison since 1996 and are serving life sentences with no parole eligibility for 60 years. Their case drew the involvement of the Innocence Project and the Seton Hall University Law School’s Last Resort Exoneration Project.
“Obviously, we are very pleased with the Court’s decision which begins the process of finally obtaining justice for these two men who have spent so much of their lives in prison though they are so obviously innocent,” said Lawrence Lustberg, a private attorney based in Newark who argued on behalf of Baker. “We hope the State recognizes this tragic mistake and dismisses the charges so that Mr. Baker and Mr. Washington can get on with their lives.”
A spokeswoman for the Camden County prosecutor’s office, which tried Baker and Washington in 1996, said the office wouldn’t comment because the case is ongoing.
The pair was convicted of the 1995 murders of two people outside a Camden housing project. The primary witness against them, Denise Rand, was a drug addict who was the only person to observe the shooting but whose testimony was inconsistent. A cousin who said he was with her and told police she couldn’t have seen the shootings wasn’t called to testify by the defense.
After numerous appeals were rejected, in 2013 two forensic experts testified at a hearing that Rand’s account of seeing Baker and Washington run up to the victims, shoot them in the head and run away was wholly inconsistent with one of the victims’ wounds. One expert also testified that specialized testing not in common use in 1996 led him to conclude that the bullets had struck the ground and ricocheted before hitting one of the victims.
The shooting as described by Rand “was, in essence, a ‘run-by shooting,’” the court wrote. “By contrast, the new forensic evidence shows it likely was an execution-style killing, in which at least one victim was forced to lie on the ground before being shot.”
Both men had provided alibis for the time in question. Washington contended he was home cooking chicken with his nephew and came upon the bodies when he went out to use a pay phone. He said he immediately called 911, but testified at a hearing in 2016 that no one obtained a copy of the call until 2013. His trial lawyer admitted he hadn’t known of the tape but would have played it at the trial to corroborate Washington’s version of events. Several friends and relatives of Washington’s later identified his voice on the 911 tape.
Baker claimed he was with his girlfriend at the time of the shootings; she wasn’t called to testify at the trial, and died of cancer in 2013 before she could give testimony at a later hearing.
The 911 call combined with the new evidence regarding the bullets persuaded the court to order a new trial.
“Viewing the totality of the evidence, the ‘new’ evidence — particularly the forensic evidence, in context with the State’s weak trial proofs that hinged so vitally upon Rand’s account — was material and probably would have changed the jury’s verdict,” the three-judge panel wrote. “The forensic evidence contradicting Rand’s description of the manner of shooting would materially strengthen a defense argument that her testimony should be disbelieved in its entirety.”