Photo by AP
DETROIT -- Raymond Highers, wearing bright yellow Wayne County Jail scrubs, folded his hands Thursday and clamped his eyes shut when it became clear what the judge was about to do.
“We have new evidence .” Wayne County Circuit Judge Lawrence Talon began.
Then the sniffling started, from one or two supporters in the back row of the packed courtroom on the sixth floor of the Frank Murphy Hall of Justice in downtown Detroit.
“ The court finds the newly discovered evidence to be credible and reliable.”
The room erupted in screams and applause before Talon could finish.
Raymond Highers and his brother, Thomas Highers, both imprisoned for a quarter-century for a murder they long maintained they did not commit, had just had their convictions wiped out.
And then, for the first time in the extraordinary hearing held off and on since March, Raymond Highers reached forward, shook his brother’s hand, and embraced him.
In a ruling from the bench that lasted about an hour, Talon said that new witnesses who never went to police about the shotgun slaying of Robert Karey, 65, offered enough new evidence during the hearing to erase the 1988 decision by then-Judge Terrance Boyle to convict the brothers and sentence them to life in prison.
Older brother Thomas is now 46. Raymond just turned the same age.
Talon said he didn’t buy the arguments of the prosecution that new witnesses discovered starting in 2009 were too inconsistent, unreliable and untrustworthy. And he outright dismissed suggestions that they had concocted their testimony to free the brothers.
Outside the courtroom, years of frustration over failed efforts to clear the men evolved into joy. The crowd in the courtroom flowed out into the hall, where people hugged and wept. “They’re coming home!” one woman shouted.
The men, for the weekend at least, remain in jail.
Talon had planned to rule Thursday on whether the brothers should be freed, but a fire alarm shortly after his decision caused a temporary evacuation of the building. The judge then put his decision off till Monday, when prosecutors are expected to argue the brothers should remain behind bars until an appeal of Talon’s ruling is decided. Prosecutors also could retry the men, should they so choose.
Michael Highers, 42, who lives in Monroe, said he hadn’t seen his brothers as free men since he was 17.
“It’s overwhelming,” he said through tears. “I just wish my mom would have been here to see it. . It’s the truth. It took 25 years to get here, but it’s the truth. .
“She knew that her boys didn’t do it. She went to her grave believing that.”
The Highers brothers’ mother died about five years ago.
“That was my mom’s mission. To get them out of there. I know that’s her up there, working OT.”
The rare hearing on the old murder case, which Talon conducted off and on for months amid other matters, featured testimony from the new witnesses and attempts by a prosecutor to knock down their accounts. Most of the Highers’ friends and family who were there for Thursday’s ruling had attended every session of the hearing.
Karey was shot and killed near the back door of the east side Detroit home from which he typically dealt marijuana to young suburban customers.
Boyle, who died in 2008, originally convicted the brothers in a non-jury trial, saying his verdict was a close call.
It was not until 2009 and a chance encounter on Facebook that information surfaced about a carload of 1987 Grosse Pointe North High School graduates who said they were at Karey’s house the night he was shot.
Four of those former classmates told Talon under oath what they remembered. Two of them testified they went to Karey’s back door to buy weed, but were interrupted by several armed black men who rushed into the backyard and ordered them to leave. One of those witnesses also testified he heard a gunshot as they fled back to the car. The race of the assailants is important because the Highers brothers are white.
The brothers’ lawyers said the witnesses never went to police for various reasons: fear for their safety, of being somehow linked to the killing or of their parents finding out where they were that night. Janet Napp, lawyer for Raymond Highers, said in court that the new witnesses were “just kids” at the time who hadn’t yet developed “a moral compass.”
Assistant Prosecutor Ana Quiroz questioned their credibility throughout the hearing, calling the new witnesses liars and suggesting there was a conspiracy to free the pair.
Quiroz provided no proof of a conspiracy, but said the scenario related by the new witnesses just didn’t add up. Among other things, she said, they described a chain link fence that didn’t exist, saw only one shotgun when two were used, and claimed to hear an exclamation - “Get the f out of here!” - that no witnesses in the original trial reported.
She also said that a private investigator who helped find the new witnesses may have planted details with them.
Evidence in the original trial established that the brothers, admitted drug users from the neighborhood, were desperate enough to rob and kill Karey, Quiroz said. She also pointed to one witness who identified Raymond Highers fleeing from the house with what looked like a shotgun, accompanied by another white man.
The Highers brothers’ lawyers argued that the witness actually saw the two previously unknown Grosse Pointe North graduates running away. Plus, the getaway car described at trial was never linked to the Highers brothers, but does match the car the graduates said they were in that night.
In the end, Talon sided with most of the defense arguments. He called the inconsistencies minor and said the witnesses would be less believable had their stories aligned perfectly. As for the suggestion that the witnesses conspired, compared notes and perhaps supplemented their memories with help from others, Talon said, “It’s human nature in a situation like this that these witnesses would do exactly what they did. Go to YouTube, read the paper, talk to one another, communicate on social media. The court isn’t overly bothered by that.
“Really, none of these witnesses, the court finds, had anything to gain by coming forward.”
Kevin Zieleniewski, a lawyer and former Detroiter who now lives near Washington, D.C., started the push to find the new witnesses in 2009 after he happened upon a Facebook posting about the Highers brothers being in prison. He grew up in that neighborhood, and the post reminded him of an old conversation about someone else killing Karey. Using his own money to travel to Detroit, Zieleniewski started digging, and was soon joined by lawyers and private investigators who found the new witnesses.
Valerie Newman, one of the brothers’ lawyers, said: “You know what amazes me? They never had any doubt that this day would come. Ray said that to me.”
And so on Thursday, three years after a chance encounter on Facebook, Zieleniewski stood quietly outside the courthouse, watching friends and family of the brothers celebrate.
“Thank God,” Zieleniewski said. “That’s all. Thank God.”
From The Detroit News:
Raymond Highers, right, shares an emotional moment after having murder charges dropped in his case
with his brother, Thomas. (David Coates / The Detroit News)
Detroit — A Wayne County Circuit Court judge on Thursday dismissed murder charges for two brothers who spent most of their adult lives in prison, ending their more than quarter-century crusade of adamantly professing their innocence.
During a morning hearing, Judge Lawrence Talon approved Wayne County Prosecutor Kym Worthy’s request to dismiss charges against Raymond, 47, and Thomas Highers, 48, stemming from their convictions in 1988.
“This has been a long journey for everybody involved in the case,” Talon said.
The Highers brothers were charged with felony murder in 1987 in addition to other charges — including assault with intent to murder — in connection with the homicide of 65-year-old Robert Karey, a known marijuana dealer at an alleged drug house in Detroit. They were convicted in 1988 following a trial before Wayne County Circuit Judge Terrance Boyle and served 25 years in prison.
Talon heavily reflected Thursday on the prosecutors involved in the case and its history over the years, making it a point to say he had a great amount of respect for all of the parties involved.
“No one is criticizing the role any of these people had,” he said.
Before handing down his ruling, Talon also ordered the 20 or so people in the court in support of the Highers brothers to refrain from displaying any outburst of emotion.
Wayne County Assistant Prosecutor Mike Reynolds told Talon the prosecution was seeking to drop the charges because some witnesses had died and other witnesses’ memories had faded over the years.
“We are requesting the court to dismiss the charges against the defendant(s),” Reynolds said.
The judge agreed, saying: "I realize that sometimes a case cannot be put back together after 26 years."
Talon, however, denied the defense lawyers' request to dismiss the case with prejudice. Should new evidence be presented to the court, a
new trial could be requested, defense lawyers warned.
Neither of the Highers brothers could wrap their minds around the possibilities for their futures. Both they're just happy to put the case behind them.
Once outside of the courtroom, the brothers shook the hands of perfect strangers who congratulated them for their victory in court. On the sidewalk in front of the Frank Murphy Hall of Justice, there was an air of celebration, with family members cheering and applauding for the Higherses.
Thomas Highers said Talon's ruling was to be expected. Although the brothers are now free without restrictions — they can now travel freely and their GPS tethers are expected to be removed Thursday — there will always remain the possibility someone else could come forward with new information, he said.
"In the last year, we haven't allowed it to hang over our heads," Thomas Highers said. "It's just unfortunate that he ruled the way he did."
The dismissal means the brothers can now apply for jobs that a felony conviction would have barred them from consideration. Currently, Raymond Highers has a job as a cooling and heating technician while Thomas Highers manages an apartment building in Metro Detroit.
Defense attorney Gabi Silver Silver said Thursday she had been in a hearing on Wednesday when she received a text from her office staff saying charges had been dismissed. She said the news came with disbelief.
"It's a good day to be a lawyer," said Silver as she and an entourage of loved ones walked to her law firm across the street following the hearing.
Silver also said the prosecutor’s office offered a plea agreement after the new evidence came to light, which would have freed the brothers on time served and saved them from having to go to trial.
“It’s a great offer for a guilty guy,” Silver said.
But her client, Thomas Highers, “looked me square in the eye” and turned down the plea.
Worthy in an announcement Wednesday said she was dropping all charges against the brothers, saying while she still believed the brothers were guilty, her office did not have a strong enough case to try them again because too much time has passed.
Talon on Thursday took exception to Worthy's comment made on Wednesday that justice was not done.
"I find it troubling that the prosecutor stated that justice was not done when each side had full opportunity to have their cases heard," Talon said.
Thursday’s decision will give the brothers time to focus on advocacy for the wrongfully convicted, their lawyers said. Attorney Valerie Newman said 28 states have legislation in place to compensate for the wrongfully accused. Michigan is not one of them.
Newman said state Sen. Steve Bieda, D-Warren, has introduced legislation to address that.
The Wrongful Imprisonment Compensation Act, introduced last year, would allow those wrongly convicted and imprisoned to bring action against the State in Court of Claims. Compensation would be up to $40,000 for each year from the date the plaintiff was imprisoned to the date that he or she was released from Department of Corrections custody.
Thirty-one people have been exonerated in Michigan since 1989, Bieda’s bill says, citing data compiled by the University of Michigan Law School and Northwestern Law School.
Since 2001, when a DNA post-conviction testing statute went into effect, three people have been exonerated by DNA, says The Innocence Project at Cooley Law School.
The brothers were freed last year while awaiting a new trial set for Oct.8.
In July 2012, Talon threw out the convictions against the brothers and granted them a motion for a new trial. A month later, Talon ordered the brothers retried and freed them on $10,000 bonds after new witness testimony suggested the brothers may have been misidentified in the murder of Karey.
One witness testified the attackers at the drug house were black. The Highers brothers are white.
A Facebook conversation about the shooting around three years ago sparked new legal efforts to revisit the brothers’ case.
David Moran, an attorney with the Michigan Innocence Clinic at the University of Michigan Law School, said the Highers brothers’ case illustrates just how shaky cases are that rely on witness identification.
“You’re talking about identifying from a distance of complete strangers,” said Moran, who represented the brothers briefly after the new evidence came to light.