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The Utah Court of Appeals has rejected a bid to reverse the murder conviction of Adrian Gordon based on claims of shoddy police work and acknowledged suppression of evidence.
In a unanimous ruling by the three-judge panel released Saturday, the court found that while evidence was not disclosed to the defense during Gordon's 2001 trial, it "was not material" to the case — that it did not, in the judges' view, affect the outcome. The unanimous opinion authored by Judge Kate Toomey also upheld the lower court in rejecting — on procedural grounds— a claim stemming from the failure of police to secure evidence at the crime scene and another claim of ineffective counsel.
Gordon, now 35, is serving a five-to-life term in the Utah State Prison for the Sept. 29, 2001, murder of Lee Lundskog. The 50-year-old mentally ill man was allegedly kicked and stomped to death behind a convenience store in the Rose Park neighborhood of Salt Lake City for the $45 in his wallet. Now in his fourteenth year behind bars, Gordon maintains his innocence and the nonprofit Rocky Mountain Innocence Center (RMIC) has taken up his cause.
Marla Kennedy, director of the center, acknowledged on Saturday the appeals-court ruling was a setback, but said RMIC has not given up on its efforts to get a new trial for Gordon.
"We are disappointed with the ruling," Kennedy said in a prepared statement. "We believe Mr. Gordon is innocent and that he did not receive the fair trial that the U.S. Constitution guarantees all of its citizens. We will continue to pursue Mr. Gordon's case and remain committed as always to being a voice for the numerous individuals who have been wrongfully convicted."
RMIC is pressing a separate appeal seeking DNA testing in Gordon's case.
The Utah Supreme Court in March unanimously remanded that appeal to the lower court, instructing it to determine whether the failure to seek such testing at trial was a tactical or non-tactical decision. State law does not allow post-conviction DNA testing if that omission was a tactical defense move. Gordon has claimed he could not afford such tests.
Prosecutors and defense attorneys agree that the state "suppressed" evidence — notes written by a police detective during autopsy of the victim that raise questions about the manner of Lundskog's killing — and that "a reasonable inference existed that the notes were favorable to Gordon," according to the appeals court.
Defense attorneys claim the notes would have helped flag a key piece of missing evidence — a blood-spattered section of concrete discovered near the victim's head — that police later acknowledged was not collected and preserved as evidence. The notes and missing concrete could have been used at trial to undermine key testimony, Gordon's attorneys argue.
But the appeals judges disagreed, stating, "In sum, the state's nondisclosure of the notes does not undermine our confidence in the outcome at trial.
Because the notes do not implicate another perpetrator and because they would have done little to weaken the testimony of the state's witnesses, the notes were not material."
As for the missing piece of bloody concrete, the appeals court agreed with the district judge that the defense was barred from bringing that up on appeal because crime-scene photographs available at the time of trial showed the object and destruction-of-evidence claims could have been raised then.