Man exonerated after nearly 13 years for murder accuses police, prosecutors of faking evidence

In the end, a federal judge said, the murder case that sent DeWayne Dunn to prison for more than a dozen years "was not a strong one."

The only two eyewitnesses supported Dunn's claim that his next-door neighbor, Angel Torres, accidentally fell down a flight of stairs as the two men were fighting.

Both said they saw never Dunn bludgeon Torres to death, as prosecutors alleged, with a weapon that was never found.

Instead, U.S. District Judge Philip Simon wrote, the state "lobbed an alternative theory involving a phantom instrument with little evidence to support it," and relied on two experts ― a forensic pathologist and a blood spatter specialist ― whose testimonies were never challenged by Dunn's defense attorney.

If not for the "subpar performance" of Dunn's attorney, Simon wrote in a Dec. 23, 2020, order, "there is a reasonable probability that he would have been acquitted." That order granted Dunn's petition challenging his 2011 conviction in Elkhart, and a federal appeals court upheld the ruling two years later.

The case was later dismissed ― but not before Dunn had spent years in prison.

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He is now suing, alleging police and prosecutors fabricated evidence to wrongfully convict him.

Dunn is the sixth person to be exonerated in Elkhart after spending years, even decades, in prison. To date, Elkhart officials have agreed to pay $26.6 million to settle allegations of misconduct that led to wrongful convictions. Most recently, city officials reached a partial settlement of $11.7 million with Andrew Royer , a mentally disabled man who spent 16 years in prison after falsely confessing to murder.

Dunn's lawsuit is one of three civil rights cases filed recently against Elkhart officials.

Former Det. Joy Phillips , who sued her former employer earlier this month, alleges the police department and several officers ruined her reputation and took away her livelihood after she refused to sign what she believed to be a bogus search warrant. Elkhart resident Hahkeem Layman, whose 2020 arrest was captured in a viral video, is also suing, accusing police officers of racially profiling and fabricating evidence against him.

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Corinne Straight, a spokeswoman for the city and Elkhart Mayor Rod Roberson's office, said in a statement that the lawsuits "are tried in a court of law, not the press." A follow-up statement, however, acknowledged the need for changes.

"When Mayor Roberson took office in 2020, he did so with a commitment to reform and accountability in the Elkhart Police Department, and a commitment to raise the level of professionalism throughout the ranks of the Department," Straight said. "All of the lawsuits center upon the conduct of former Elkhart police officers. While the city does not concede the claims of any of the suits, these suits are not reflective of today's Elkhart Police Department."

Elliot Slosar, an attorney for the Chicago law firm Loevy & Loevy, represents all three plaintiffs. He has long said there has been an "epidemic" of police and prosecutorial misconduct in Elkhart. Dunn's wrongful conviction, for example, "demonstrates a pattern of systemic misconduct in the halls of the Elkhart Police Department and the Elkhart County Prosecutor's Office," Slosar said in a statement.

Elkhart County Prosecutor Vicki Becker, who was elected in 2016, said she’s unable to comment on the allegations outside the judicial process.

The case against DeWayne Dunn

Dunn, 62, was charged with murder in 2010, about a year and a half after Torres died. The two men, who lived in adjacent second-floor apartments, got in a fight on Sept. 3, 2008, in their shared balcony and struggled over a bat that Torres was holding.

The two eyewitnesses, Dunn's then-girlfriend and her son, both heard Dunn telling Torres to stop hitting him with the bat. The son, Jamar Sims, saw Torres fall backwards down the steps and hit the pavement head first, he testified. His mother, Letha Sims, testified she rushed out to the balcony after hearing a thud and saw Torres at the bottom of the stairs with the bat underneath him.

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Prosecutors alleged that Dunn pushed Torres down the stairs and then bludgeoned him to death with a different weapon. But neither of the eyewitnesses said they saw Dunn push or beat Torres. The unknown weapon was also never found. An autopsy found Torres died of massive blunt trauma to the head, but the manner of death was uncertain.

The state relied on two other witnesses: a Fort Wayne forensic pathologist who reviewed the autopsy and concluded that Torres' skull was "crushed like gravel" ― injuries inconsistent with an accidental fall ― and an Indiana State Police blood-spatter specialist who testified bloodstains found at the scene were caused by "impact splatter."

The state presented the case as a binary choice between two trustworthy experts and two eyewitnesses who lied.

"But all this tells us that the witnesses are not telling the truth. People lie. It happens," Becker told jurors. "And, you know, we can use terms like you don't find swans in a sewer. This area where they're living, the lifestyle they're living, we can't pick our witnesses."

Dunn was convicted in February 2011 after a three-day trial. He was sentenced to 58 years in prison.

At his post-conviction hearing, another expert who reviewed the evidence contradicted the prosecution's witnesses. Dr. Thomas Sozio, forensic pathologist from Fishers, testified that Torres' injuries, which included a small laceration on his scalp and a straight line break of several ribs, were not consistent with being battered to death. Sozio also concluded that Torres' chronic alcoholism put him at greater risk of breaking his bones.

In his 2020 ruling granting Dunn's petition, Simon pointed out weaknesses in the state's case: If Dunn bludgeoned Torres after he fell, why did he stay at the crime scene? And although Torres' blood was on Dunn's shoes, it simply shows that he walked around the scene, Simon wrote.

Simon also said the state's allegation that Letha and Jamar Sims were liars "loses much of its traction" when backed by the testimony of another expert: Sozio.

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The U.S. Court of Appeals for the 7th Circuit upheld Simon's ruling in a 2-1 decision, writing that Sozio's testimony "was critical to creating reasonable doubt." The appeals court also wrote that if Dunn beat Torres with a weapon that became so saturated with blood that it created blood spatter at the crime scene, as prosecutors alleged, the absence of blood on Dunn's clothes "diminishes" that argument.

Dunn was finally freed in 2022.

In his lawsuit, Dunn also names as defendants Michael Sigsbee, an Elkhart police officer who he alleged forced Letha Sims to say she saw Dunn kick Torres. He is also suing the two state experts ― Fort Wayne forensic pathologist Scott Wagner and Indiana State Police blood spatter specialist Dean Marks ― who, Dunn alleged, fabricated their findings at the prosecution's behest.

A spokeswoman for the police department referred IndyStar to the city's public statements. Wagner has not responded to a request for comment. The Indiana State Police declined to comment, citing the pending litigation.

"At first, I couldn't believe it was happening," Dunn said. "But then, once I got in prison, I was like, 'I can't let them get away with this.'"

'My sons had to see me in prison'

Dunn said his wrongful conviction took away not only his freedom, but also his ability to make a living, to see his grandsons grow up and to be there when loved ones died. He lost three brothers and an uncle while in prison.

"My sons had to see me in prison," said Dunn, who has three sons. "I had to meet my grandkids in prison."

At the end of one visit, as Dunn was about to go back to his cell, one of his grandsons ― a toddler at that time ― asked to stay with him.

"He said, 'Papaw, can I go with you?'" Dunn recalled. "To hear him say that, that hurts."

On Nov. 4, 2022, after federal courts ruled in Dunn's favor, Becker's office filed a notice that it would not retry Dunn. Dunn was released a few days later. He had spent nearly 13 years behind bars.

"When you're in prison, you're behind a wall. You're in a little cell. You're not only in prison physically; you're in prison here too," Dunn said, pointing at his temple.

"When you're Black, you're almost found guilty," he added. "It just don't happen that you're innocent."

Contact IndyStar reporter Kristine Phillips at (317) 444-3026 or at kphillips@indystar.com .

This article originally appeared on Indianapolis Star: Man exonerated after nearly 13 years for murder accuses police, prosecutors of faking evidence