Fourteen years after being imprisoned for murder, DeWitt McDonald may get the second trial he’s been seeking.
A federal magistrate on Friday recommended the federal court order a writ of habeas corpus, which could pave the way for McDonald to get a new trial. U.S. Magistrate Judge Vernelis Armstrong concluded that Erie County prosecutor Kevin Baxter had a prior relationship with Krista Harris, a key witness for the prosecution in the murder case.
“The evidence demonstrates the existence of a relationship,” Armstrong wrote in her recommendation. Because Harris’ testimony “was the only evidence linking (McDonald) to the underlying crimes ... failure to disclose that relationship rendered the underlying trial fundamentally unfair.”
McDonald was convicted by an Erie County jury of murder and aggravated murder in 1995, and sentenced to life in prison. Baxter prosecuted the case.
Vivian Johnson, a 36-year-old mother of four, was shot in the neck by a stray bullet while sitting in her car outside an East Parish Street home.
According to Armstrong, Harris initially provided McDonald an alibi by testifying she was with McDonald the night Johnson was killed, supporting his story they spent the night together. But Harris later recanted her testimony to the grand jury and provided testimony during the trial that linked McDonald to Johnson’s killing.
Armstrong’s recommendation includes information about an affidavit filed years after the trial, in which Harris stated she changed her testimony because she had been forced into a “nonconsensual sexual relationship” by Baxter, who “threatened to file criminal charges against her to obtain her testimony against (McDonald).”
Harris was subsequently arrested and convicted in Erie County on charges she stole from a family member.
She was convicted and sent to prison on those charges but was released from custody in 2007. In a deposition taken in July, she told McDonald’s attorney the charges against her had been falsified.
The magistrate cited the affidavit, testimony by Baxter’s brother and a “photocopy of a check drawn on the account of ‘Kevin J. Baxter, Prosecuting Attorney’ for the lease of a U-Haul for Harris on Sept. 7, 1995,” in the recommendation that a writ of habeas corpus be granted. The “evidence demonstrates the existence of a relationship” between Harris and Baxter, the recommendation states.
“Harris’ testimony, in all likelihood, affected the judgment of the jury,” the magistrate wrote. “As a result, (McDonald) can establish a prima facie case for denial of his right to due process.”
The parties now have 10 days to file an objection to the magistrate’s report.
When reached by phone Friday evening, Baxter said there was no credibility to the allegations he had a relationship with Harris and he was surprised by the magistrate’s recommendation.
“There’s just so many facts that show this allegation is untrue,” he said. “I don’t know why this decision has come out like this.”
Reporter Shawn Foucher contributed to this article.