Family seeks new trial in murder
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08/04/02
by Donna J. Robb
Plain Dealer Reporter

Akron - As if she were climbing into the storybook chair of Papa Bear, a
6-year-old girl wiggled into a witness chair in a Summit County courtroom.

She answered most of an attorney's questions with a "yes," "no" or "I don't
know," then pointed at her uncle. He was the man who had beaten and raped
her and raped, sodomized and murdered her grandmother.

The traumatized child's whispered testimony and her tiny pointing finger
were enough to convince a jury and Summit County Common Pleas Judge John
Adams that Clarence Elkins was guilty. That was four years ago. Elkins was
sentenced to life in prison and continues to proclaim his innocence.

His family members, shattered by the murder and conviction, have reunited in
a quest to prove he didn't do it. They have hired lawyers and private
investigators hoping to show that the girl, detectives and prosecutors were
wrong.

One of the results of their efforts is a videotaped statement in which the
girl, now 10, changes her story. She says it wasn't her uncle after all, but
someone who looks like him.

And Elkins' supporters are convinced they have found the real killer - a man
who lives in Summit County and who was once spurned by the murdered
grandmother.

In order to prove it, though, they need the judge to order a new trial, one
at which they can highlight physical evidence they say was ignored in the
first trial. At a hearing last week, Adams said his decision will largely
depend on whether he believes that the girl actually recanted and identified
a new suspect.

Prosecutors blame mounting family pressure for the girl's newest
recollections.

It would be "reprehensible if this child has been coerced into changing her
testimony," Adams said.

He will view the videotape of the girl telling Elkins' attorney that her
uncle was not the man she saw in the wee hours of June 7, 1998. Adams said
he hopes the girl's body language will reveal whether she was being
pressured.

Putting such weight on the statements, then and now, of a child who was
awakened in the middle of the night, beaten and raped with an object, choked
and left for dead, only to awake again and see her grandmother's bloody body
is the wrong thing to do, forensic experts say.

One of the leading causes of wrongful convictions is faulty eyewitness
identification, according to studies conducted by the U.S. Justice
Department and forensic psychologists over the last two decades.

At The Plain Dealer's request, forensic scientist Brent Turvey reviewed the
Elkins case and criticized how Barberton police and county prosecutors had
handled the investigation.

"You cannot ignore physical evidence and ever hope to find the truth," said
Turvey, who holds degrees in forensic science and forensic psychology and is
the author of a book on criminal profiling.

Nothing found at the bloody crime scene, including pubic hairs on the child,
linked Elkins to the violent rapes and murder. Detectives and prosecutors
also did not order DNA tests of material under the fingernails of Judith
Johnson, the slain grandmother.

"It is obvious that within hours of finding Johnson's body, the police
believed Elkins was their man and they didn't want to run too many DNA tests
that could contradict their theory," said Martin Yant, a Columbus-based
private investigator hired by the Elkins family.

Assistant Summit County Prosecutor Richard Kasay said testing was not done
on Johnson's fingernails - some of which were torn in the fight for her
life - because it would have been "redundant" to find more DNA that did not
match Elkins. Detectives stopped seeking DNA tests after failing to link
Elkins to pubic hair found on Johnson and the girl's nightgown.

Elkins' lawyer, Elizabeth Kelley of Cleveland, said the lack of testing and
failure to fully investigate other suspects violated "common decency."

"They zeroed in on Clarence right away, so [they] failed to discover a man
who had the motive, the means and the psychological makeup to have committed
this horrendous crime," Kelley said.

The suspect identified by Kelley and Yant had been spurned by Johnson, who
was 57 when the 24-year-old sought to date her. The man recently refused to
give Yant a hair sample for DNA testing.

Kelley and Yant say their suspect was abused as a child and suffered a head
injury, two common traits of violent offenders. He carried the thick half of
a sawed-off cue stick wrapped in tape under a trench coat when he went out.
He was accused of sexually abusing a child in the past. And he was filmed by
police acting nervous at Johnson's funeral. They noticed his behavior but
didn't seek to learn his identity.

In the tape, he ducked behind other mourners and nervously scanned his
surroundings. He was wearing a long-sleeved shirt on a hot June day.

"He was hiding deep gouges I had seen on his arm and his back. I had to
force him to attend the service and he acted strange when he got there,"
said Beverly Kaisk, a friend of Johnson and the new suspect's landlord.

Kaisk did not report seeing the scratches until the day Elkins was
convicted. "I guess I didn't want to believe I could have been living with
someone who would do such a thing," she said recently.

She gave detectives the man's cue stick, which was returned to her without
testing. She also told investigators too late that her tenant had her drive
him to an alley near Johnson's house the day after the murder to retrieve
his trench coat.

Judge Adams scowled at Kaisk's recent statements, noting that she had been
interviewed by detectives several times immediately after the murder and
never reported any of the circumstantial evidence against her tenant.

He said he had been impressed with how "consistent" the young girl had been,
telling a neighbor, her parents, detectives, a psychologist and the jury
that Elkins had killed her "mamaw."

Such confidence in the girl's testimony, in the face of physical evidence
that doesn't also incriminate Elkins, baffles forensic expert Turvey.

"Time and time again, research has proven eyewitness identifications to be
tenuous at best, even under the best circumstances. In this case, you have a
traumatized 6-year-old whose statements had many significant
inconsistencies," he said.

Documents detailing pretrial interviews with the girl show she was confused
and inconsistent about many details. She said she had been awakened by the
opening of the front door, then later said screams or footsteps had roused
her. She repeatedly said her uncle had a knife in his hand. Johnson was not
stabbed. By the time of trial, after being prepped by prosecutors, she had
stopped saying the killer had a knife.

Her first statement to anyone about that night was that "someone killed my
mamaw." That evolved into "it looked like Uncle Clarence," and as time
passed, she became certain it was her uncle. Records show she was supported
and encouraged by adults around her to "be brave" in sticking to that
identification.

Before the trial, the girl told interviewers that she saw only the back of
the man's head, then said she saw his face right before he punched her in
her dark bedroom. She said the killer did not wear a hat, then she said he
did. She said she closed and locked the front door right after the killer
left, then she said the door was wide open when she awoke in the morning.

In one interview, she said the killer told her, "Give me the money or I'll
kill you." At trial, she said she didn't hear the killer say anything. She
has since told her family that she heard a woman's voice.

Adams is expected to rule this week whether the girl's new videotaped
statement is enough to give Elkins a new trial.


To reach this Plain Dealer reporter:

drobb@plaind.com, 800-628-6689


2002 The Plain Dealer.