David Ayers does not expect good fortune. In his new job as a Horseshoe Cleveland security guard, he makes his rounds amid customers who hope they'll be rewarded for no reason but luck. Ayers does not share their optimism. Good news surprises him.
Ayers spent 11 years in prison for the murder of his elderly neighbor, Dorothy Brown, a crime he says he did not commit. He was released from prison in 2011, his conviction overturned, the charge against him dismissed. Two years later, his lawsuit against the Cleveland police officers who arrested him ended in victory — with a $13.2 million judgment from a federal jury.
Even then, Ayers did not think the jury's decision would survive an appeal.
"I didn't expect it to go through," Ayers says. "I've been through this court system. They find reason not to be fair."
But in December, a federal appeals court upheld the verdict and judgment against retired Cleveland homicide detective Denise Kovach and her late partner, Michael Cipo. The court's opinion included a near-endorsement of Ayers' main arguments for his innocence: that DNA from the scene of Brown's 1999 death points to another unknown man as the killer, and that the detectives, among other errors, manipulated jailhouse informant Donald Hutchinson to get Ayers convicted.
"Testimony [about the DNA] tended to prove that Ayers did not kill Brown," the court said, "rebutting Hutchinson's testimony that Ayers confessed to the murder and increasing the likelihood that Cipo and Kovach instead fed Hutchinson details about the case."
The appeals court's decision left Ayers shocked but satisfied.
"They knew that I was innocent," he says.
The court's opinion closes another chapter in the 15-year legal battle over Brown's death — a story Cleveland Magazine told in the September 2013 article "The Curious Case of David Ayers." The ruling may also be the closest Ayers gets to an exoneration. His lawyer at the Ohio Innocence Project is seeking a declaration of wrongful conviction for him. But it may be difficult to obtain, because Ayers is not officially cleared of Brown's murder. The prosecutor dismissed the charge against Ayers without prejudice and has never officially accepted the proposition that the DNA evidence absolves him.
More certainty for Ayers may only come if the Cleveland police and Cuyahoga County prosecutor and medical examiner can answer an even more important question: If David Ayers did not kill Dorothy Brown, then who did?
In September 2011, days after the Cuyahoga County Prosecutor's Office dropped its attempt to retry Ayers for Brown's murder, assistant prosecutor Kevin Filiatraut emailed the Cleveland police's homicide unit. He asked the police to reopen the investigation of the homicide of Brown.
Filiatraut's stated reason for dropping the charge was that he was unable to use part or possibly all of Hutchinson's testimony at a new trial. But he also noted that new DNA evidence had opened up a possible line of investigation.
Brown, known for her feistiness and her generosity, was found dead Dec. 17, 1999, in her fifth-floor residence at the LaRonde Apartments, a public housing tower for senior citizens on Shaker Boulevard in Cleveland. The 76-year-old Brown was found naked from the waist down, lying on her side on her carpeted floor, with fatal wounds to her head.
The medical examiner discovered a disturbing piece of evidence, one that was minimized at Ayers' trial, but has grown in importance since: a pubic hair in Brown's mouth. Testing in 2000 picked up no DNA, but a microscopic comparison showed it was not similar to Ayers' hair. At Ayers' murder trial, prosecutors dismissed the hair as irrelevant, suggesting it was picked up from the carpet.
But Ayers' lawyers argued that the hair was evidence of a sexual assault. After Ayers' conviction, they fought for years to get the hair retested. By 2011, DNA technology had improved — and a re-examination in August of that year produced results.
"The medical examiner's office was able to get a profile from the hair," Filiatraut wrote in his 2011 email to police Sgt. Mike Quinn. Prosecutor Tim McGinty's office recently shared the email's contents with Cleveland Magazine. "That profile told us that the hair came from a male, but that it did not match David Ayers. Presently, we do not know who the hair belongs to."
A years-old mistake made the hair more difficult to use as evidence. It was contaminated with DNA of the lab worker who'd tested it in 2000. So the new testing picked up DNA markers from three people: Brown, the lab worker and the man who had shed the hair. By subtracting the others' DNA markers, a partial DNA profile of the unknown man could be deduced. But the FBI determined that under its rules, the partial profile was ineligible to be used in a search of the Combined DNA Index System, the national DNA database.
However, Filiatraut noted, if the police were to submit a person's DNA to the county crime lab, examiners could compare it to the partial profile from the Brown case to exclude the individual as the source of the hair — or include him as a likely match.
"I would like CPD homicide to investigate this matter and provide samples of people of interest to the medical examiner's office for testing against the profile from the hair found in Dorothy Brown's mouth," Filiatraut wrote. "The police report gives the names of several people who would be suitable for this."
Filiatraut's request for a new investigation remained unfulfilled more than three years later, as 2015 began. The Cleveland police homicide unit had made no progress in the Brown case, according to conversations with Sgt. Quinn and deputy police chief Ed Tomba.
In January, after talking with Quinn, Tomba said the homicide unit has not collected DNA samples because it does not have enough evidence against anyone to show probable cause for a search warrant.
But Tomba acknowledged that police could still ask people of interest to submit samples voluntarily, for exclusion. He also acknowledged there may be another way to obtain the DNA profile of a man who has a long criminal history mentioned in the reports.
Meanwhile, Brown's family hopes for answers. This past fall, her nephew, Brady Reid, contacted the prosecutor's office, trying to get her murder reinvestigated.
"I'm not going to be satisfied unless someone's brought to justice," says Reid. "It makes me stay awake sometimes, just thinking about it."
Reid's mother, Cleo McDowell, is in her 80s. She, too, wants closure in her sister's death, her son says. Reid and his brother, Douglas, say the family has not heard from police in years.
"This is a black woman who died," Reid says, "and police act like black lives don't matter."
Several men named in the Brown police reports may be among the people of interest mentioned in Filiatraut's email. One man who was close to Brown was questioned by Kovach and Cipo in connection with the murder, submitted to a polygraph test and passed. The detectives asked him about Ayers' temperament, but the police report does not indicate if they ever questioned his own whereabouts the night of the murder.
A male friend of a LaRonde resident was briefly of interest to Cipo and Kovach. Though the man has a common name, which made him difficult to identify, the detectives found one individual with that name who had a past criminal record, including theft and drug trafficking convictions. That man has been convicted in three more criminal cases involving robbery or theft since Brown's death.
The most striking name, Darrin Ward, a man identified as "a primary suspect" early in the investigation, has been convicted of several felonies in Ohio and New Mexico in the 15 years since Brown's murder, including an attempt to shoot a woman. And he once bragged to a girlfriend that he had killed people in Cleveland.
Brown's death looked like a murder-robbery: Her purse had been emptied, its contents strewn across her recliner. She had recently withdrawn several hundred dollars from the bank; it was missing. Most of the LaRonde's residents were elderly and physically incapable of committing the crime. So police inquiries tended to focus on younger people who frequented the building.
The day after the murder, a police detective picked up what seemed to be an early lead. Carol Brown (no relation), who lived on the LaRonde's second floor, claimed that Darrin Ward, who was staying in his mother's apartment down the hall, had tried to break into her apartment through the balcony. She also claimed that he had been knocking on second-floor doors on the day of the murder and that he had been accused of breaking into apartments over the summer.
When detectives Cipo and Kovach got the case, they learned Darrin Ward had a criminal record, including a conviction for a sexual assault on a 12-year-old girl. That's when Kovach called him a primary suspect in a police report. But at Ayers' trial, Kovach and Cipo testified that they found Carol hard to believe because she seemed confused and had lapses in memory. A police report also says a neighbor claimed Carol (who is now deceased) was a heavy drinker.
Darrin Ward met with Cipo and Kovach in February 2000 and denied trying to break into Carol's apartment or anyone else's. He acknowledged that he'd knocked on several doors on the second floor, but said he'd done it because he had locked himself out of his mother's apartment. In 2013, Cipo testified that Darrin Ward provided an alibi — he was with his girlfriend — and that the girlfriend confirmed it, but the police reports from 2000 do not mention this.
By the time the detectives interviewed Darrin Ward, their investigation was focused on Ayers. A security guard at the LaRonde who lived on the first floor, Ayers was the last person to see Brown alive. Several people told police that she had called them the night before her body was found and asked them to help her get up from a fall. Ayers and another neighbor said they'd gone up to help her; Ayers may have returned alone to lock the door.
The detectives questioned Ayers several times, focusing on apparent discrepancies between phone records and his story. Believing he was lying, they arrested him for Brown's murder on March 14, 2000.
Darrin Ward's appearances in the police reports became part of Ayers' defense at his murder trial, then part of the argument that he'd been unjustly convicted.
Nine days after Ayers' arrest, his lawyers noted, the detectives got a call from a woman who said a man named Jerritt Ward was in the Bedford Heights jail and wanted to talk with them about Brown's murder. When Kovach called the jail, a Bedford Heights police officer said Jerritt had decided to talk to his lawyer before talking to them. There is no record that the detectives ever followed up. Ayers' lawyers, who believed Jerritt was Darrin's brother, asked the detectives why they hadn't aggressively pursued the lead.
"By the time he called," Kovach testified at the 2000 trial, "we had already charged the man we believed did it."
Jerritt, who lives in Cleveland, says he didn't actually know anything about the murder.
"My girlfriend, she was trying to help me out," he says. "She thought I knew something." At the time, Jerritt was facing a federal charge of distributing crack cocaine, to which he pleaded guilty a month later. "My grandmother lived in that building. [My girlfriend] had heard me and my grandmother talking about it." His girlfriend, he implies, thought he could help the detectives and get a break in his own case — but he had nothing to trade. He says a detective — from Bedford, he thinks — did briefly question him about the Brown case while he was in jail, and he replied that he had no information.
Jerritt says Darrin is his uncle, and that they never talked about the murder. "My uncle's the black sheep of our family," he says. "Nobody listens to Darrin." He didn't know Darrin was ever a suspect in the Brown murder and does not think his uncle had anything to do with the crime. "He's more harmful to himself than anybody else," Jerritt says. "He seeks attention."
Darrin was convicted in four different felony theft cases in Cuyahoga County between 2000 and 2006. After serving time in prison, he moved to New Mexico. There, he was twice convicted of battery, then sentenced to 18 years in prison in 2010 for larceny with a firearm. News reports say he forced his way into an ex-girlfriend's house with a gun and fired several shots in her direction.
Shannon Ahrens, another former girlfriend in New Mexico, says Darrin also assaulted her, though she did not file charges. "He said he had killed people before," says Ahrens. "[He said] back in Cleveland he had killed some people."
Cleveland police records show that Darrin was arrested in March 2002 in connection with a murder investigation, but he was not charged. The booking report reads, "Aggravated murder — non-negligence." That could indicate that police picked him up for questioning but did not feel he was responsible for the murder.
Darrin has not responded to two letters from Cleveland Magazine asking him for his version of the events at the LaRonde.
Cleveland Magazine asked Tomba if investigators had acquired a DNA sample from Darrin and if they could request assistance from authorities in New Mexico.
"You do bring up a point relative to the New Mexico inmate," Tomba emailed in response. "I am requesting guidance from the prosecutor's office in an effort to see what is the best way to obtain that sample. The case is open."
As DNA technology and the efforts of groups such as the Ohio Innocence Project overturn wrongful convictions and vindicate the innocent, a growing number of crimes once thought solved are transformed into open cold cases. The National Registry of Exonerations, maintained by the University of Michigan Law School, shows the number of known exonerations a year on the rise, from 35 in 1992 to 125 in 2014.
Some of those cases are too cold to solve. Evidence is lost, witnesses deceased, and memories faded. Yet there is no statute of limitations on murder. Some old crimes can still be solved, perhaps with the help of the very DNA that liberated the wrongfully convicted. But launching a reinvestigation is not easy for police departments and prosecutors, says Geoffrey Mearns, former dean of the Cleveland-Marshall College of Law and a onetime federal prosecutor.
"[There are] cases where courts have held that the evidence exonerates the defendant, but prosecutors and law enforcement officers are not entirely convinced they've got the wrong person," says Mearns, now president of Northern Kentucky University. "Now you've got the combination of two factors. You've got an old case, and you've got lack of enthusiasm."
Mark Godsey, an Innocence Project attorney who has worked on Ayers' case, says it's rare to see a law enforcement agency acknowledge an error after an overturned conviction and arrest a different suspect.
"It typically doesn't happen," Godsey says. The reason isn't particular to law enforcement, he says; it's human nature. "Once someone's convinced of something, it's hard to change their mind."
Cuyahoga County prosecutor Tim McGinty has recognized the need for his office to accept the possibility of past error. Last year, fulfilling a campaign pledge, he set up a conviction integrity unit to review applications of felons who feel they were wrongfully convicted. It's modeled after a similar program established by the Manhattan district attorney's office in 2010. Assistant prosecutors who were involved in the original case are not involved in the new review.
Joe Frolik, a spokesman for McGinty, has maintained the office is open to re-examining Brown's murder and would like to know if there are any suspects that should be looked at.
There are still ways the Cleveland police could investigate Brown's murder, even if they are not ready to seek a search warrant.
A common approach that allows police to eliminate suspects from their list is asking people of interest to voluntarily provide a DNA sample. For instance, investigators probing the 1989 murder of 10-year-old Amy Mihaljevic of Bay Village have collected DNA samples from several people, which have helped to eliminate those individuals as potential suspects.
Similarly, investigators could ask people whose names appear in the 1999 and 2000 Brown police reports to submit a DNA sample — usually a swab of their inner cheek.
Investigators also have a few possible ways to obtain the DNA of an unwilling person of interest. One is to obtain DNA surreptitiously — say, picking up someone's drinking glass or cigarette butt. It's legal for police to do that, though there's a risk it will rub a jury the wrong way.
Or the county prosecutor could launch a grand jury investigation, and the grand jury could issue subpoenas, says Paul Giannelli, a law professor at Case Western Reserve University.
"A grand jury subpoena can be issued to anybody," says Giannelli. "You don't have to have probable cause. Once you get to a grand jury, you can ask for fingerprints, handwriting and so forth. There are some courts that say you can also take a cheek swab."
Finally, most states now have laws that require convicted felons to provide a DNA sample to the state's DNA database. Though privacy laws restrict how a felon's DNA sample can be used, the databases are searchable. States set their own rules for DNA database searches, which may differ from the FBI's. So investigators could ask states where a person of interest has been imprisoned to conduct a special search of their DNA databases using the partial profile from the Brown crime scene.
That could give investigators a chance to compare the profile to Darrin Ward's DNA markers. A DNA sample was taken from him when he entered the New Mexico prison system in 2011, a corrections spokeswoman says. He should also be in Ohio's database, since his last felony conviction here was in 2006, a year after the state began collecting DNA from all felons.
John F. Krebsbach, chairman of the New Mexico DNA Identification System Oversight Committee, says that while he can't talk about individual cases, investigators in one state "could request the other state to do a manual search of the entire database." (In a manual search, a DNA profile is not added to the database but input only once to search for a match.)
Jill Del Greco, a spokeswoman for the Ohio attorney general's office, says the state's Bureau of Criminal Investigation would consider a manual search with a partial profile, but it would have to meet FBI quality guidelines (a potential hurdle because of the contamination). It's possible for law enforcement to access a single offender's DNA profile, but BCI would ask for a court order, and requests would be decided based on the facts surrounding the case.
David Ayers has been free for 3 1/2 years now. With his job at the casino, he has returned to his long-ago career as a security guard.
"It feels so good, so wonderful," he says. "I can get out there, assist people and help people as I once did." He's studying criminal justice and is due to get his bachelor's degree in May.
Ayers hasn't received any of the $13.2 million judgment against the detectives. Cipo is deceased, and no claim was filed against his estate in probate court. Kovach, who has maintained that she and Cipo committed no misconduct and that Ayers is guilty, has declared bankruptcy. Ayers' lawyers have petitioned the bankruptcy court, asking the trustee to pursue a claim against the city of Cleveland. They argue that under state law, the city has an obligation to indemnify Kovach and cover the $13.2 million.
"As it stands, we do not [have an obligation]," Dan Williams, a spokesman for the city, says carefully. (In the past, the city has said that its contract with the police union would limit any responsibility for the judgment to $1 million.)
Ayers plans on investing if he collects the jury award. "I'll go out and enjoy myself," he says. "I don't mean spending unwisely. Maybe get a nice house and a car, and help my family."
But Ayers carries a burden money cannot lift. He is almost exonerated but not quite.
The appeals court's opinion that DNA "tended to prove" his innocence may be the best Ayers can do to clear his name — unless Dorothy Brown's murder is solved.