Freedom Day: September 10th, 2018
The headlines practically wrote themselves: “Discovery of dog saves Oregon man from sex crime conviction” (Fox News), “A man’s 50-year sex crime conviction was overturned thanks to a black lab named Lucy” (Insider.com). The story of Lucy the dog and how the revelation that she was alive and well and living in Gearheart on the Oregon coast helped overturn our client Josh Horner’s wrongful conviction and 50-year sentence captured the imagination of people around the world. But our work on Mr. Horner’s case began when his wife, Kelli Horner, filled out our questionnaire and sent it to our office hoping we would be the key to winning his freedom.
In 2015, Josh Horner was living in Redmond, Oregon, with Kelli and running his plumbing business when he was accused of sexual abuse of a child. He was convicted in April 2017 and sentenced to fifty years in prison, effectively a life sentence for the then 41-year-old. Josh was sent to Eastern Oregon Correctional Facility in Pendleton to serve his sentence. Within months of his conviction, the Horners contacted us asking for help.
Sex abuse cases tend to be particularly difficult for all involved in their investigation and defense, including courts and juries. As often happens in this type of case, there was no DNA evidence, no other forensics, and no eyewitnesses in Josh’s case. However, our initial screening raised several red flags that caused us to begin what turned into a nine-month investigation. One critical discrepancy was testimony from the complaining witness that Josh had shot a black Lab called Lucy in front of her, while Josh insisted that Lucy was still alive. A second discrepancy was that the complaining witness filed a false report of abuse by Josh’s wife, which further damaged her credibility. That report had been investigated by police who quickly concluded it was made up.
We brought these facts and others to John Hummel, the District Attorney for Deschutes County where Josh Horner was convicted, and explained our concerns about the case and our belief that our client had been wrongfully convicted. After learning what we had discovered so far and conducting his own internal review, Mr. Hummel agreed to reexamine the case with us. Our investigator Lisa Christon worked with an investigator from the Deschutes County District Attorney’s Office to look into the case.
The investigators were able to track down Lucy the dog to Gearheart where she was living with her new owner. Her identity was verified with the help of a vet. The discovery of Lucy helped convince the DA to ask the court to dismiss the charges against Josh. As John Hummel said in his motion to dismiss: “Lucy the dog was not shot. Lucy the dog is alive and well.” Finding Lucy was important to overturning Josh’s conviction because, in a case with no forensic evidence or eyewitnesses, everything rested on the credibility of the testimony of the complaining witness and Josh.
The Oregon Attorney General’s office agreed to concede legal error in the case. The Oregon Court of Appeals accepted and reversed Josh’s conviction, remanding the case to the trial court in Deschutes County.
A meeting was scheduled with the complaining witness but she failed to attend. After an extensive search, investigators found her at her mother’s house but she ran away when she saw them approaching. They were unable to speak with her.
After the investigators completed their work, John Hummel moved to dismiss the indictment and Josh was able to walk free from court to be reunited with his wife.
On the day the case against him was dismissed, Josh Horner expressed his gratitude to Oregon Innocence Project staff and donors: “I want to thank my wife, family, and friends for standing by me. Tremendous thanks to the Oregon Innocence Project for believing in me and for tirelessly working on my behalf. Thank you to District Attorney John Hummel for cooperating with the Oregon Innocence Project in the investigation. Kelli and I are ready to pick up the pieces of our lives.”
Josh’s case shows how important it is to continue to search for truth even in cases in which DNA and other forensic tools are not available. The primary causes of wrongful convictions—eyewitness identification, invalidated or improper forensic science, false confessions, jailhouse informants, ineffective assistance of counsel, prosecutorial or police misconduct, and, as in this case, false testimony—are equally likely to produce a wrongful conviction in a case in which exculpatory DNA exists as in a case where DNA does not exist or is not relevant.
The OIP team that brought Josh home included Legal Director Steve Wax, Staff Attorney Brittney Plesser, Advisory Committee member Lisa Christon, paralegal Elora Cosper, law student Karma Read, and investigator James Comstock. We could not have succeeded without the work of Appellate Attorney Ryan Scott, Bend attorney Valerie Wright, the Oregon Attorney General’s office, and Deschutes County District Attorney John Hummel. Thanks to all for their hard work and cooperation.