By TODD RICHMOND
MADISON, Wis. (AP) — A state appeals court granted a new trial Tuesday for a Milwaukee man convicted of a murder after a gun battle, saying a jury should hear from people who say he was never there.
Kenneth Davis has been trying to prove he did not take part in the shootout since a jury convicted him in 2001. The 1st District Court of Appeals finally agreed that he could present such testimony.
“The impression that he did not have a fair trial originally is exactly on point,” said Davis’ attorney, Robert Henak. “It’s just one of those unfortunate cases where someone spends a long time in prison for something all the reliable evidence says he didn’t do.”
The state Justice Department, which handles felony appeals on behalf of local prosecutors, said it would consult with the Milwaukee district attorney about whether to pursue the case to the state Supreme Court.
Prosecutors accused Davis and two other men of trying to rob what they believed was a drug house in the summer of 2000. A shootout ensued and a man named Henry Matthews was killed.
The state built its case against Davis largely on testimony from Armond Henderson, one of the other robbers. According to a plea agreement, Henderson testified that Davis took part in the robbery.
Prosecutors also relied on statements Davis made to police admitting he was there and felt guilty about Matthews’ death as well as testimony from Davis’ former cellmate who claimed Davis confessed to the incident to him.
A jury convicted Davis of felony murder in 2001. He was sentenced to 60 years in prison and 20 years on extended supervision.
Davis argued on appeal in 2003 that since he had been convicted others had come forward and claimed Henderson told them Davis wasn’t there. The 1st District Court of Appeals rejected that claim, though, saying his admission to police was the most important evidence.
Davis, now 40, filed another appeal last year. He pointed again to claims that Henderson told others Davis wasn’t at the house.
He raised several other issues as well, including allegations that the prisoner who testified against him made up the story in hopes of being transferred to a lower-security prison. He also argued that his statements to police should have been suppressed because investigators asked him to verify what he said after he asked for an attorney, amounting to a violation of his rights.
This time the appeals court ruled that Davis deserves a new trial in the interest of justice, saying the question of whether he was present during the shootout hasn’t been fully tried. The jury never got to hear and weigh all the evidence, making it impossible to appropriately consider all the factors in the case, the court said.