An Innocent Man | Cover Story | Salt Lake City | Salt Lake City Weekly

An Innocent Man 

Harry Miller tries to reclaim his life after spending years in prison for a crime he says he didn’t commit.

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STRUCK DUMB
When then-10-year-old Harry Miller’s widowed mother died in the Mississippi River-bordered town of Donaldsonville, La., Harry was too young to go to the funeral. “I was hurt,” he recalls. “I wanted to do something to remember I don’t like to be hurt at all.” He took a pen and tattooed five letters and a question mark on his arm. Almost 50 years later, ‘Hlove?’—the H standing for Harry—is still visible in his flesh.

armtattoo.jpg

He worked in a shoe warehouse, got married and had two girls. “Soon as I got married, I was the happiest man in the world.” Eighteen years later, he and his wife split up. He moved to Salt Lake City in 1989 to join his brother. He’d spend his days working, return to his hotel room in downtown Salt Lake City, shower, drink beer and watch TV. Ten years later, on Feb. 15, 1999, after a drunken altercation with police officers, he pleaded guilty to five misdemeanors, including two for assaulting cops. A ticket for spitting later that year made him “feel like it was time to leave [Salt Lake City], something wasn’t right.”

He moved back to Donaldsonville and worked from May 2000 at a vending-machine business. On Friday, Nov. 24, 2000, walking back to his home two blocks from work, he started dragging his leg. He couldn’t find the key to his apartment. A neighbor asked what was wrong as Miller leaned against the wall. All he could do was shake his head. He was taken to a local hospital where doctors diagnosed he’d had a stroke. These were facts the trial court under Judge McCleve would later acknowledge occurred.

Four days after hospital admittance, without insurance, Miller was well enough to be sent home in the company of a work supervisor and his sister. Hospital records show Miller needed home assistance and was slated to receive speech, occupational and physical therapy at his sister’s home.

The records also note Miller was “able to ride in a car only when driven by another person,” or use a bus “only when assisted or accompanied by another person.” Miller recalls it took him five minutes just to stand up. “The blood had to get to my feet. I just couldn’t move.”

On Dec. 7, according to an affidavit, a registered nurse providing home health care visited a recovering Miller, leaving at 11:02 a.m. She saw him again seven days later, one day before he returned to work.

Early on Dec. 8, thousands of miles away in Utah, a crime took place that a Utah jury would decide, three years later, had been committed by Miller.

SHAKE, RATTLE AND JAIL

On that cold wintery morning in 2000, Julia Smart pulled up outside the Fast Track Mart at 610 N. 400 West in Salt Lake City to get coffee and cigarettes. She was in a hurry and left the car running. Someone grabbed her as she walked back to her car. An African-American male she described to the police as between 18 and 21 years old [Miller would have been 47 at the time]—an age estimate she later questioned giving in court—mumbled something several times she didn’t understand. Finally, he made himself clear: “I’ll cut you. Give me your purse.” Then she realized he had a knife to her throat.

He took her purse and got in her car but couldn’t get it out of park. The store clerk called the police. He and Smart stood by the car, watching the man for several minutes, before he gave up and, the clerk testified, ran away.

The robbery impacted Smart badly. “It makes me shake,” says Smart, who moved to Hawaii with her husband, Brandon Smart, in part to escape Utah. Over the next several years, she saw several men she thought may have been her attacker.

In February 2002, Harry Miller quit his vending-machine job and returned to Salt Lake City. Although he was living in a men’s shelter, he enrolled in a Salt Lake Community College course to study hazardous-waste management. Work in hazardous waste “paid $25 an hour. I thought I’d have me a good job, a nice home.”

The bizarre confluence of events that would take away his freedom gathered momentum on Feb. 11, 2003, when Julia Smart was having dinner with her husband in a now-closed Dee’s restaurant on North Temple. An African-American man entered the restaurant and forced a waitress at gunpoint to open the till. Julia Smart had her back to the crime, but Brandon says he saw the robbery take place. “I had a very clear view. I know what I saw. I trust my own eyes.”

The police took Brandon to a few nearby bars, pulled out several men, but none of them were the robber. Then, several hours later, as Brandon and Julia were driving home, a man crossed the street immediately in front of the Smart’s car near the Dee’s restaurant and then used a pay phone. Brandon identified him to both his wife, and later the police, as the robber. Julia says she did not see the face of the man she and her husband observed and would later learn was named Harry Miller.

But when the police picked up Miller that same night, two witnesses to the Dee’s robbery said he wasn’t the assailant. Miller was nevertheless arrested by police for an outstanding warrant stemming from his 1999 spitting citation and held in jail while they investigated the Dee’s robbery.

Several days later, a police officer knocked at the Smart’s home, wanting Brandon to look at a photo lineup, but he was still at work. The officer asked Julia if she would look at the pictures, even though she hadn’t seen the restaurant robbery. When she saw Miller’s face in the line-up, she recalls, “my heart and stomach sank to the ground. I instantly remembered the day I was robbed.” She told the officer, “I don’t know who robbed Dee’s but this guy robbed me.” It wasn’t simply the visual recognition, she says during a phone interview from Hawaii, it was the emotional impact “when you see someone who did something bad to you.”

Eyewitness expert Gary Wells says eyewitnesses virtually never accept they have made a mistake. When shown a photo lineup, “they can pick up information from a photo without realizing it, so that person becomes her memory of the person who robbed her.” As soon as a witness decides, “That’s the guy,” Wells continues, “that person’s face becomes their memory.”

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