.jpg) DeMarlo Berry and his wife, Odilia (Richard Brian/Law Vegas Review-Journal)
Meanwhile, another employee who hid in a bathroom heard two gunshots. Metz and the co-worker as well as several patrons of the tavern returned to the Carl’s Jr. in time to see the gunman emerge from the restaurant, point his gun at them and then jump over a low wall separating the restaurant parking from the adjacent Blue Angel Motel parking lot. The robber got into a waiting black Cadillac, which sped off.
Inside the restaurant, 32-year-old Charles Burkes, the manager, was found dead of a gunshot wound in the back of his left shoulder. One slug was removed from his body. A second slug was found on the floor near the restaurant safe.
Police received numerous tips. Ultimately, detectives focused on 18-year-old DeMarlo Berry, who said he had been selling drugs in the area that night and went to the Carl’s Jr. to get something to eat when the robbery occurred. Berry had recognized the man coming out of the restaurant as Steven “Sindog” Jackson, who was the leader of the Crips street gang in San Bernardino, California. But Berry said nothing to police—later explaining that he feared retaliation if he identified Jackson to police.
Police assembled a photographic lineup containing Berry’s photograph. Metz, the cashier, identified Berry as the robber. Three other witnesses said that Berry resembled the robber, but they could not identify him positively.
Berry was charged with first-degree murder, burglary, and robbery. He went to trial in Clark County District Court in May 1995. The prosecution said that it intended to ask the jury to impose the death penalty.
Metz testified and identified Berry as the robber. The three other witnesses who had previously said only that Berry resembled the robber now testified that they were positive that he was the gunman. In addition, a fifth witness who had not viewed the photographic lineup testified that Berry was the man who fled the restaurant.
The prosecution called Richard Iden, who happened to be in the Clark County Jail on check forgery charges when Berry was arrested. Iden previously worked for the sheriff’s office in Knox County, Ohio, but had become addicted to crack cocaine and turned to a life of theft to support his habit.
Iden told the jury that when they were both in the holding area of the jail, Berry confessed that he had shot Burkes. Iden said that he had met Berry in 1990 when Iden visited Las Vegas. He claimed that during that visit, he bought drugs from Berry—who would have been only 14 years old at the time.
Iden admitted that his account of their conversation had shifted over time. Iden claimed that Berry said he was facing Burkes when he shot him, although the evidence showed Burkes was shot from behind. Iden also said Berry admitted that he and someone else had robbed “a guy,” but he couldn’t remember if the shooting was in a restaurant. Iden admitted he had reached a plea agreement that resulted in probation in return for his testimony.
The murder weapon was never recovered. Detectives collected 32 latent fingerprints and palm prints from the restaurant—none of which was Berry’s.
Berry testified and denied any involvement in the crime. He told the jury he was coming to the restaurant to get something to eat when he saw the gunman emerge. Berry said the gunman was Jackson, the Crips leader. He also denied confessing to Iden and denied that he and Iden had ever met prior to being in the jail together. Berry also testified that he had not told police about Jackson because he feared retaliation.
A San Bernardino police officer testified for the defense that Jackson was, indeed, the leader of the San Bernardino Crips.
The defense also presented evidence that the initial description of the robber was a man 5 feet 10 inches to 6 feet tall and weighing 175 to 200 pounds. At the time of the crime, Berry was about 5 feet 8 inches tall and weighed 140 pounds. Jackson was 6 feet tall and weighed 235 pounds.
After the guilt phase of the trial, the jury reported that it was deadlocked. The prosecution and defense reached an agreement that if the state would withdraw its intention to seek the death penalty, the defense would give up the right to a unanimous verdict. On May 24, 1995, the jury voted 11 to 1 to convict Berry of first-degree murder, robbery, and burglary. He was sentenced to life in prison with the possibility of parole on the murder conviction, 10 years on the burglary conviction and 15 years on the robbery conviction—all to be served consecutively to each other.
The Nevada Supreme Court upheld Berry’s convictions. He then filed a state post-conviction petition for a writ of habeas corpus on the ground that his trial defense attorney had provided an inadequate legal defense by agreeing to a non-unanimous verdict. That, too, was denied.
In 2005, an investigator working for Berry contacted Steven “Sindog” Jackson, who was in prison in California. Jackson, however, refused to confess to the murder.
In 2008, Berry filed another post-conviction petition, asserting that the jury instructions at his trial were flawed. That petition was denied as well.
In 2011, Berry contacted the Rocky Mountain Innocence Center, which agreed to take his case. In 2014, a third post-conviction petition was filed on Berry’s behalf, citing sworn admissions from Jackson that he committed the crime and from Iden that Berry never confessed to him.
Jackson’s statement said, “I committed the robbery that resulted in the murder of Charles Burkes. DeMarlo Berry did not commit this crime, nor did he have any involvement in the commission of this crime.”
In the statement, Jackson recounted how he ordered Burkes to open the safe. Burkes was fumbling with the lock and, fearing that Burkes was stalling to allow help to arrive, Jackson shot him.
Iden admitted he lied when he said he met Berry prior to being in jail together. He said that two detectives and the prosecution’s investigator fed him the details he said Berry recounted. Iden also disclosed several other benefits he received for his testimony. The prosecution had paid his airfare for two trips to return to Ohio and back to Las Vegas. He was also paid a per diem during the trial, and his motel and meal expenses were covered. None of these benefits was disclosed at the trial.
Elizabeth Fasse, the Rocky Mountain Innocence Center attorney who interviewed Jackson, said in a sworn statement that Jackson had become a Jehovah’s Witness and wanted to “get this off his chest and clear his conscience.”
The petition also included a sworn statement from Maisha Mack, a former acquaintance of Jackson “in 1993-1994.” Mack said that shortly after the crime, Jackson “confessed to me that he, with the help of his brother, committed the murder…Specifically, Mr. Jackson said he was the one who shot the victim.”
Clark County District Judge Michael Villani denied the petition without a hearing. He declared that Jackson’s confession and Iden’s recantation were “belied by the record,” apparently because certain facts, such as the robbers fleeing in a black Cadillac, were missing. The judge noted that Burkes was found some distance away from the safe with no blood trail leading back to the safe.
Berry appealed the ruling. In December 2015, the Nevada Supreme Court reversed the judge’s decision and ordered an evidentiary hearing. The court said that not only was the new evidence “not belied by the record,” but that the evidence “could lead a reasonable jury to seriously question the reliability of the eyewitness accounts.”
In 2016, the newly created conviction review unit of the Clark County District Attorney’s Office began its own investigation of the case. Ultimately, the unit concluded that the charges should be dismissed.
On June 27, 2017, the prosecution filed a motion to vacate the convictions and on June 28, 2017, the charges were dismissed.
The prosecution issued a statement saying that the reinvestigation “included an interview of Mr. Jackson, at which time he confirmed what was in his affidavit and provided additional information about the crime scene that would not have been known by someone who was not there at the time of the murder. The investigation also determined that there had been no contact between Mr. Berry and Mr. Jackson since Mr. Berry’s conviction.”
In April 2019, Berry filed a federal civil rights lawsuit seeking compensation for his wrongful conviction. In October 2019, Berry filed a claim for compensation from the state of Nevada and in August 2020, the state agreed to award him $2.25 million. In 2020, Clark County agreed to pay $1.5 million as part of a settlement of the federal lawsuit. The Las Vegas Metropolitan Police Department and its insurer settled for an additional $13 million.
– Maurice Possley
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