A man convicted of slaying an Indianapolis storekeeper in 1999 lost his post-conviction relief appeal Wednesday, even as the appellate panel acknowledged his since-suspended defense counsel failed to properly investigate alternate suspects, among other shortcomings.
Harold Warren was convicted of murder and Class B felony robbery in 2000 for the shooting death of Jack Dorfman, who operated a small business that dealt in precious metals and cashed checks. Warren, who subsequently was sentenced to 85 years in prison, had been in the store a day earlier and was escorted out after Dorfman declined to buy some rings Warren sought to sell. Warren told Dorfman, “I’ll be back.”
The next day, Dorfman was found dead in his shop from a .22 caliber gunshot wound to the head. That same day, Warren used Dorfman’s credit cards at a liquor store, a Meijer, a Kmart and a Radio Shack.
Three days after the murder, a man named Paul Fancher purchased a .22 caliber handgun from Warren’s brother Ron, but upon learning of Harold Warren’s arrest, Fancher turned the gun over to police.
Among other things connecting Harold Warren to the killing was a pawn ticket left on the counter of Dorfman’s store that bore Warren’s fingerprint.
Nevertheless, Warren in his defense sought to point to alternate potential suspects, including Dana Roberson, who had dated his brother Larry. Among other things, Roberson owned a black truck, and a witness had placed a black truck at the scene of the crime the day Dorfman’s body was found.
The witness said a man seen getting out of the truck and walking toward Dorfman’s shop did not resemble Harold Warren.
Larry told a detective that Roberson had appeared “very anxious” in the days after the killing and suddenly had a lot of money. She used the money to buy an RV, take herself and Larry to Florida, and paint her truck gray, Larry told authorities. When called to testify at Harold Warren’s PCR hearing, Roberson took the Fifth and provided no testimony, the appellate panel noted.
Harold Warren had been represented in his 2000 criminal case by Carl L. Epstein, who in 2017 was suspended from the practice of law for, among other things, implying to a client that he had the ability to improperly influence judges and suggested his client flee to avoid prosecution.
Epstein admitted in testimony at Warren’s PCR hearing that he failed to adequately investigate potential alternate suspects at Warren’s trial in 2000.
“Epstein acknowledged he was not able to invest as much time into preparing Warren’s case as he would have liked because he expended a lot of time and resources preparing and trying a multi-week federal criminal trial, which concluded shortly before Warren’s trial, and because his medical problems, including Type 2 diabetes and a heart problem, limited the amount of time Epstein could devote to preparing for Warren’s trial,” Judge Melissa May wrote for the COA panel in Harold Warren v. State of Indiana, 19A-PC-1604.
“Epstein testified that if he had had more time, he would have taken Roberson’s deposition,” May wrote. “Epstein did not talk with Roberson informally or take a taped statement from her before Warren’s trial. Epstein acknowledged receiving Indianapolis Police Department inter-department communications about fingerprint evidence in the Dorfman murder, and he testified that he should have used the evidence in his arguments at Warren’s trial.” In a footnote, the panel observed that the police internal communication about the fingerprint evidence was offered as evidence in Warren’s PCR case but was not admitted.
The COA didn’t agree with the state’s assertion that evidence pertaining to Larry and to Roberson was speculative. “(I)t raises several red flags,” the panel found. “Had Epstein interviewed Larry, he would have discovered substantial information that casts suspicion on Roberson. Epstein then could have deposed, interviewed, or subpoenaed Roberson. He could have asked her where she was the morning of the murder, how many conversations she had with law enforcement about the murder, how she was able to purchase the recreational vehicle, why she decided to take a trip to Florida with Larry shortly after the murder, whether she repainted her truck grey, and if so, why she repainted her truck. Roberson might have invoked her Fifth Amendment right against self-incrimination, denied Larry’s allegations, or provided innocent explanations, but Epstein did not find out. Therefore, we agree with Warren that Epstein’s performance was deficient regarding his investigation of Roberson.”
The panel also found the possible presence of someone else at the crime scene as established by the presence of fingerprints from another person was a lead worth investigation.
Despite Epstein’s deficient performance in defending Harold Warren, the panel found Warren had not met the high bar required for post-conviction relief – that but for counsel’s unprofessional errors, the outcome of his trial would have been different.
The panel pointed to the evidence against Warren that, among other things, included his fingerprinted pawn ticket found at Dorfman’s shop, his denial to police of ever pawning anything at the shop, filling out a pawn card or using any of Dorfman’s credit cards, and the .22 caliber handgun conveyed from Warren’s brother to Fancher.
“Warren’s trial counsel acknowledges he did not adequately investigate a potential alternative suspect or follow-up on a lead that another individual’s fingerprints were present at the scene of Dorfman’s murder. However, despite trial counsel’s deficient performance, we cannot say there was a reasonable probability the outcome of Warren’s trial would have been different because of the overwhelming evidence of Warren’s guilt presented at trial,” the panel concluded. “We accordingly affirm.”