David Flores case: More prosecutor malfeasance

Concealment of evidence pollutes the whole prosecution case

A Polk County judge on Tuesday said he will likely push back the June 30 hearing of David Flores, a Des Moines man serving life in prison for a 1996 murder. Judge Don Nickerson said attorneys will need time to authenticate an FBI report that they believe was in the possession of police before Flores was convicted in 1997.

The judge urged family members to be careful about talking to the media, saying it could jeopardize Flores' attorney-client privilege. "You don't gain an advantage by trying to try this in the press," Nickerson said.

But family members said Tuesday they don't want to be quiet any longer. "David was convicted in the media," his mother, Diane Flores, said. Family members said there were more than 30 stories about David being the prime suspect in the murder of 42-year-old bank executive Phyllis Davis at the time.

Flores, who has always contended he was railroaded, asked for his life sentence to be reconsidered after learning that an FBI report pointing to another prime suspect was not given to his defense before his trial in 1997. Prosecutors now acknowledge that a key piece of evidence in the controversial gang-related murder was never disclosed to David Flores' defense lawyers. Court records show Des Moines police are admitting for the first time that they did have an FBI report identifying another suspect in the case when Flores was convicted of the shooting.

The revelation could result in Flores, now 31, being freed after 12 years behind bars. Attorneys will hold an emergency meeting this morning with Polk County Judge Don Nickerson to discuss what happens next in the case.

In recent weeks, Des Moines police and the Polk County attorney's office have resisted efforts by both Flores' attorney and The Des Moines Register to obtain police records related to that other suspect, Rafael Robinson. Late Friday, however, prosecutor Joe Weeg filed a court motion acknowledging that police did have an FBI report pointing to Robinson as a suspect in August 1996. "This could be a very big deal," said Bob Rigg, a defense attorney who teaches criminal law at Drake University. "How big hinges on how material the judge feels this information is."

The state has a legal obligation to turn over evidence that could assist in a criminal defendant defense. Weeg said in his court filing that there was "no evidence" prosecutors were given the FBI report or that they were aware it existed before Flores was convicted. "There was no attempt to hide, remove or destroy any of the attached documents," he wrote.

However, legal experts say, it matters little whether prosecutors had the report in their possession; the fact that the evidence was in the possession of police means it was in the hands of the state.

Flores faces a June 30 hearing at which Nickerson must decide whether the outcome of his trial would have been different if the defense had the FBI report and other new evidence. If so, Flores' conviction could be vacated and Polk County Attorney John Sarcone would be forced to decide whether he wants to risk retrying a controversial case he once conceded was "skinny."

"This filing may be an acknowledgment that they're saying 'we just need to roll over on this,' " said Brian Farrell, a Cedar Rapids attorney who specializes in such post-conviction cases. "That would be a dramatic development, but it's certainly possible."

A months-long investigation by the Register found at least three people who have independently come forward since Flores' appeals were exhausted in 2003 to say another man was likely responsible for Davis' death as a result of a gang-related fight.

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