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Blind spots (continued)

The four witnesses all claimed to have been in a car with Fulks that night. They said in separate interviews that they were driving down Warren Street when Fulks recognized someone on the street suspected of murdering someone he knew. He asked to be let out of the car and picked up around the corner. All this happened, they said, right around the time Miller was shot. The taped statements of the four witnesses contradict each other on a number of basic details, such as where they had been before the murder and where they went later, according to both Rudser and Procopio, although they offer different interpretations. Rudser suggests they were making it up. Procopio says that "the accounts were not duplicative in a way that would make you think they were collaborating" on the story.

The first to tell that story was Vendell Mason, after he was picked up by Boston police on May 29, allegedly in possession of marijuana. He was never charged with any crime; three days later, he made a taped statement blaming Fulks for Miller’s murder. He said that he and the others in the car were all friends — although in the transcript of his statement, Mason says that he is with the Magnolia Street gang, and that the others, including Fulks, are with the Intervale Street gang. Both gangs operate in the Grove Hall area.

Over the next two weeks, Detective Daniel Keeler brought in three other men whom Mason claimed were in the car. Each one initially denied knowing anything about the murder, but eventually switched their stories to conform with Mason’s. Only these final parts of their interviews were recorded, leaving open the possibility that Keeler may have threatened them with charges or coached them in what to say, Rudser says.

According to Procopio, only one of the four was offered any inducement for his story — Andrew Kornegay, who was given a plea agreement on a drug charge. Rudser points out, however, that none of them was charged as an accomplice — including the driver, and even including Andre Clarke, who had the gun police say was the murder weapon. (The gun had been taken from Clarke by police a month earlier when he had been arrested on another charge; at the time, the BPD’s computerized ballistics system said it did not match the bullets that killed Miller, Procopio confirms. When Fulks emerged as the suspect and Keeler requested that the crime lab specifically check Clarke’s gun against the Miller bullets, the same system called it a match. Procopio could offer no explanation for the discrepancy in the two findings. Given that Fulks ultimately agreed to a plea bargain, the inconsistency — which raises considerable doubt — could not be pointed out at trial.)

None of the eyewitnesses who spoke with police at the crime scene ever corroborated the Fulks identification. In fact, one witness, Debbie Grayson, had previously made a positive ID, from a photo array, of a different suspect, named Shaheed Edwards. Another witness, shown a photograph of Fulks by Rudser’s investigator, said he was not the shooter. Several witnesses told police, both at the scene and in taped statements, that the killer got out of a maroon sedan, either a Taurus or an Intrepid; Mason and the others said they were in a silver or beige Toyota 4Runner, an SUV.

Jovan Burts

Convicted of second-degree murder in 2003; sentenced to life.

In early August 2000, 22-year-old Jovan Burts was living with his parents on Appleton Street, in the South End, about to enter his senior year of college. According to what Burts told his parents and his attorney, on the night of Friday, August 4, he had drinks with some friends and ended up crashing with one of them, Kenneth Whigham, in an apartment at 267 Centre Street, in the Bromley-Heath projects. He woke up at 11 a.m. the next morning when police came around asking questions.

A jury believed otherwise. According to the story told by prosecutor Mark Lee at Burts’s trial in March 2003, Burts and a friend were walking on Amory Street, about a half-mile from 267 Centre, at 2:30 a.m. Cedric Ennis, 15 years old, called out asking if they were with Academy Homes, the name of both a project and gang. Burts allegedly replied, "No, Heath Street," and plunged a knife into Ennis’s chest while Ennis’s friend, Sylvester McDuffie, watched in horror.

Burts’s previous legal trouble, like Sprinkle’s, was limited to a single marijuana-possession charge, which was ultimately dismissed. He had no known affiliation with the Heath Street gang. A graduate of Lincoln-Sudbury High School through the METCO program, he was majoring in English at Hampton University in Hampton, Virginia, and wanted to be a writer. To be closer to the doctor treating his sickle-cell anemia, he was transferring from Hampton to UMass Boston for his final year, and was planning to move to St. Botolph Street, in the South End, when the semester began.

McDuffie’s identification of Burts was the entire case; no physical evidence connected Burts to the crime. No murder weapon was found. Burts had no connection to the victim. And McDuffie actually refused to testify at the trial, until the prosecutor sent an arrest warrant to compel him.

In obtaining the ID from McDuffie, Sergeant Detective Robert Harrington used the exact methods that James Doyle calls outmoded. Harrington, who led the investigation, visited McDuffie four days after the murder on August 8 in his mother’s Egleston Square apartment. The eight photographs were laid out as an array, rather than shown one at a time, and Harrington knew which of the photographs was the suspect. According to Anthony Ellison, Burts’s attorney, Harrington conducted the array when 15-year-old McDuffie’s mother briefly left the room to get something from the kitchen, a detail that Procopio confirms.

Ellison questions how Harrington could even have narrowed his suspicion to Burts prior to McDuffie’s ID. Harrington says, according to Procopio, that Burts was the first and only suspect he intended to ask McDuffie to identify. An hour or so after the stabbing, police spotted two men, standing in front of the Jackson Square MBTA station, who generally fit the descriptions sent out in an all-points bulletin (APB) shortly after the murder. When police approached, the two ran into the 267 Centre Street building. The next morning, police went door-to-door in that building and took down the names of at least 15 people, including Burts and Whigham. According to Procopio, Burts stood out as a suspect because he did not actually live at 267 Centre Street, and because in the initial conversation the morning after the murder, Burts gave a changing description of where he was and what he did the night before.

But the APB, Ellison points out, described the stabber as wearing braids, and Burts had an afro. (The policeman who called in the information for the APB later testified that he must have misspoken.) Carl Shorter, the officer who chased the two men from the T station into the building, later testified that Burts was not one of the men he had chased.

The trail to Burts seems so faint, Ellison says, that he questions whether the photo-array ID was actually done on August 8. At trial, Ellison noted that the date on the ID report looked like it had been changed. Ellison says he suspects that when detectives knocked on Burts’s door on August 15 — the first time anyone had attempted to contact Burts since interviewing him the morning after the murder — they were doing routine follow-up, and became suspicious only when they found out from his mother that Burts had left for Virginia a day after the murder. Harrington got an arrest warrant that day. Ellison suggested at trial that the detectives interpreted Burts’s trip as a flight from the law, and only after they obtained the arrest warrant did they set up the photo array with McDuffie. Burts later showed police documentation that proved he had planned the trip months earlier to retrieve his belongings from Hampton.

Burts’s mother, Mary Cox, recalls detectives coming to the house and asking for Jovan on August 15, the day they obtained an arrest warrant. "They just said they wanted to ask him some questions about some kid being stabbed," she recalls, over coffee at Copley Place.

Burts, serving a life sentence, is eligible for parole in 2015. Cox and her husband have just sold their Appleton Street home to pay for his appeal.

David S. Bernstein can be reached at dbernstein[a]phx.com

page 3 

Issue Date: April 23 - 29, 2004
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