An Innocent Man | Cover Story | Salt Lake City Weekly

June 22, 2011 News » Cover Story

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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Miller was held in the Salt Lake County lock-up for almost a year, awaiting trial on the Dee’s and Julia Smart robberies.

His defense counsel, then Salt Lake City legal defender John O’Connell, got Miller’s hospital records from Louisiana and arranged for Miller’s sister to travel to Utah to testify she had cared for him every day during the three weeks he was off work. But a month before the trial, she changed her mind. Her son was facing juvenile court issues in Louisiana, and she didn’t want to leave him alone. “At that point, [O’Connell] lost all interest,” Miller says. “He gave up after my sister said she couldn’t come. That hurt.” O’Connell, who is now a legal defender in San Diego, did not respond to e-mail and voice-mail requests for interviews. He told The Salt Lake Tribune’s Stephen Hunt in a 2007 story on Miller, though, that in hindsight, he “should have done more follow-up, especially with the home health-care nurse.”

When Miller saw Julia enter the court, seven months pregnant, watched by a mostly white jury, in front of a white judge, he knew he was going to prison. What got him, he says, “was I’d never seen her in my life.”

Salt Lake County prosecutor Kenneth Updegrove called Julia Smart and the convenience-store clerk to the stand almost three years after the crime. Both identified Miller. But the clerk also claimed to have seen Miller months prior to the robbery, when the court had accepted that Miller was working in Louisiana. Updegrove, since retired, points out that the robber’s slurred speech and inability to get the car out of park “seemed to be consistent with having a stroke previously. Julia and the clerk were standing there, staring at him. He had very distinctive front teeth.” That distinction, he told the Tribune’s Hunt, was a gap in his front teeth. While in 2003, when Miller was arrested, he did indeed have, and still has, a distinctive gap. In 2000, at the time of the robbery, Miller says he had a gold tooth, which fell out in 2001. He pulls out two battered photo ID cards from that time period to prove his point. But while Miller pressed O’Connell to ask Smart and the clerk about his tooth, the matter wasn’t raised.

Updegrove says, “Here is someone who is involved in two robberies. If he’s trying to claim [the case] is made out of old cloth, and there’s no evidence, the jury went with us.” Nevertheless, Updegrove himself dismissed the Dee’s robbery charge “in the interests of justice.” While Miller had been wearing similar clothes the night of the Dee’s robbery to the man Brandon Smart saw at the restaurant, DNA taken from the robber’s hat did not match Miller’s.

O’Connell put Miller on the stand to recount the story of his stroke and to point out that, as a car mechanic, he knew cars and would have known how to get a car out of park. Beyond that, the defense faltered. “John O’Connell had nothing for me. I had nothing to stand on.” Although Miller’s brother attended court every day, O’Connell didn’t call him to testify that Miller was not in Salt Lake City at the time of the crime. Updegrove says, “I couldn’t help wondering why nobody in Louisiana or his brother took the stand to say, ‘No, he wasn’t [in Salt Lake City].’ ”

The jury found Miller guilty. “I figured that because I didn’t do nothing to get in prison, I’d be there for life. I had no hope at all.”

Kent Hart was in the appellate division of the Legal Defenders Association in 2003. He automatically received Miller’s file and, after reviewing it, was struck by the absence of alibi witnesses.


Hart was convinced his then-LDA-colleague O’Connell had not done all he could to assist Miller in his defense, meaning that part of Miller’s case for his release would require looking at O’Connell’s performance in court. Then Utah County-based private attorney Patrick Lindsay took on Miller’s case. Hart told Lindsay, “This case is one of those rare opportunities to help a truly innocent person from an extreme injustice.” Lindsay flew down to Louisiana, interviewed witnesses and arranged for Miller’s niece to come to Utah to testify he was there in Donaldsonville at the time of the Julia Smart robbery.

Lindsay’s brief to the court of appeals summed up the original conviction pithily. “Here, the result was so unreliable as to approach the absurd. To propose that a man who lived and was gainfully employed in a small Louisiana town would—after being disabled by a stroke—somehow travel over 1,800 miles without any of his caretakers knowing it, immediately commit a random crime against a stranger with negligible gain, and get himself home without anyone noticing his absence, defies logic.”

The attorney general’s office, which automatically takes on appeals, saw Miller’s supposedly narrow window of travel opportunity as evidence he could have committed the crime. Then assistant attorney general Matthew Bates wrote in a brief, “Thus the evidence from defendant’s home-health-care records does not make it impossible for defendant to have committed the crime—it only narrows the time frame within which defendant could have traveled from Louisiana to Utah.” Miller, he continued, could have flown to Utah the afternoon of Dec. 7, 2000, robbed Julia Smart the next morning, “concluded his visit, and flew back to Louisiana to return to work on Dec. 13.”

The court of appeals sent the case back to Judge McCleve for a hearing to determine if John O’Connell had provided Miller with ineffective counsel, but Judge McCleve was unimpressed. Miller’s niece told the court she saw Miller every day and night while he was out off work, but then became confused on the stand. McCleve ruled her testimony was, “at best, not reliable.” Further, she ruled that there was “no reasonable probability of a different result [from Miller’s conviction] even if [the new witnesses] had testified.”

One month before the case went to oral arguments before the appeals court, the attorney general’s office, having vigorously refused to admit any fault in the court trial, had an abrupt change of heart. The state and Lindsay agreed to a reversal of the conviction on the basis of an undisclosed “error” in the trial. Reed says both sides agreed “something should happen but neither side could come up with a reason why. The result was appropriate. The reasons weren’t important.”

Lindsay says “the error” related to essential witnesses not testifying who “would have made a difference, and the fact that he was in Louisiana at the time of the alleged crime.” The state intentionally refused to identify the error, Lindsay says, since “if the court of appeals had decided the case on its merits and ruled against the state, that would probably have resulted in case law they would have preferred not to have on the books.”

Faced with a new trial, Miller also had a difficult decision to make. The district attorney’s office offered to release Miller if he pleaded guilty to second-degree robbery, with time served. “If you plead guilty today, you walk out,” Hart told Miller.

“But I didn’t do it,” Miller said. “I want to fight it.”

Five months later, prosecutor Kent Morgan declined to retry Miller and dismissed the case “in the interests of justice” on July 3, 2007. Three days later, Miller was a free man.

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