BEND, Ore. - (Update: New video from courthouse, statement from OIP official)
A Redmond man sent to prison last year thanked a non-profit organization for saving his life and helping get a 50-year sex abuse conviction overturned Monday, a turn of events he called "a miracle."
Joshua Gene Horner, 42, was convicted of several sexual abuse crimes in 2017 and sentenced to 50 years in prison. A judge on Monday went along with Deschutes County District Attorney John Hummel's request and dismissed the case.
Court records show Horner was indicted on the charges on Dec. 31, 2014, at the end of the term for former DA Patrick Flaherty, whom Hummel defeated in that years election.
The case went to trial in March 2017 and resulted in a a non-unanimous verdict. Oregon is one of just two states where juries can issue non-unanimous verdicts, except in murder cases.
"This is a day I wasn't sure I'd see," Horner said outside the courthouse, his tearful wife Kelli at his side. "The Oregon Innocence Project is an organization that provided me with a miracle.”
Horner spent 18 months at the Eastern Oregon Correctional Institution in Pendleton, until he was returned to Bend in early August and granted conditional release after an appeals court judge remanded the case for retrial.
The Oregon Innocence Project got involved in Horner’s case and worked alongside District Attorney John Hummel and his staff to re-investigate the case.
The project's legal director, Steve Wax, said it was fortunate that Horner applied to the project so early.
"We have put word out in prisons that the OIP exists," Wax said. "We hae a 30-page questionnaire, and Mr. Horner filled it out."
A key find: A dog, a black lab named Lucy, who the alleged victim claimed her abuser had shot and killed in front for her to keep her silent, was found alive and well in Gearhart, Hummel told Circuit Judge Michael Adler in court Monday.
Hummel said the new information made it clear there was not enough evidence "beyond a reasonable doubt" to charge and convict Horner.
"While I cannot say with certainty that Mr. Horner did not sexually abuse the named victim I can say I am not convinced by a preponderance of evidence that he did and I am certainly not convinced beyond a reasonable doubt," Hummel said.
And so, on Monday, Adler, without further comment, dismissed all charges -- something Horner said he never thought would happen.
Horner’s friends and family gathered in the courtroom for the brief hearing and stood and broke into applause after Adler dismissed the charges and the brief hearing ended.
Gary Lynch, a longtime friend of Horner, said, “We just tried to believe in the justice system so much, but somewhere it went wrong along the way. But we’re so happy today it got corrected."
"The definition of success is the realization of a worthwhile predetermined goal and today we became a success," Lynch added.
The Oregon Innocence Project noted that it was the 4-year-old group's first exoneration, in a case where its client, Horner, had been sentenced to 50 years in prison -- "a sentence that would have resulted in death in prison for (Horner), who had never before been convicted of a crime."
Currently the Oregon Innocence Project is working on five other cases, Wax said.
Here's Hummel's full statement on the case, issued after Monday morning's hearing, and his motion of dismissal, along with a news release from the Oregon Innocence Project:
"On March 21, 2017, 42-year-old Redmond resident Joshua Horner was convicted in Deschutes County, by a non-unanimous vote of jurors, of numerous crimes related to the sexual abuse of his daughter and sentenced to 50 years in prison.
"In April of this year, District Attorney John Hummel was contacted by staff attorneys from the Oregon Innocence Project who expressed concerns about the validity of Horner’s conviction and shared the basis for their belief that there was a significant possibility he is innocent, Hummel said in a news release Monday morning, which continues:
"District Attorney Hummel took seriously the arguments made by the Oregon Innocence Project and in conjunction with an investigator in the District Attorney’s office, an investigator in the Oregon Innocence Project’s office, and two attorneys from the Oregon Innocence Project, undertook an extensive investigation into the factual and legal concerns they raised. While this investigation was on going, on July 26, 2018, the Oregon Court of Appeals reversed Mr. Horner’s conviction and remanded the matter for a new trial.
"After the issuance of the order of reversal, the joint investigation of the District Attorney and the Oregon Innocence Project produced a tangible result: A significant claim made at trial by the named victim was not true. Specifically, the named victim testified at trial that Mr. Horner told her that he would kill her animals if she reported his sexual abuse of her to the police. In addition, she said that to prove his point: “[Mr. Horner] shot my dog Lucy right in front of me.”
"Lucy the dog was not shot. Lucy the dog is alive and well. The investigators tracked down Lucy the dog in Gearhart, Oregon, verified her identity, spent much time with her, and took pictures of her.
"With this new, evidence in hand, it was imperative for investigators to meet with the named victim to talk with her about her trial testimony about Lucy, and to talk with her about other aspects of her testimony, which, in light of the Lucy revelation, were now concerning.
"Unfortunately, the named victim declined numerous opportunities to sit down with investigators to explain her trial testimony about Lucy and to answer questions about whether anything else she testified to at trial was untrue.
"Because of the Lucy the dog revelation, and the absence of a persuasive and credible explanation from the named victim, District Attorney Hummel filed a motion today asking the court to dismiss this prosecution. Deschutes County Circuit Court Judge Michael Adler granted the request.
"Statement from District Attorney Hummel:
“While I cannot say with certainty that Mr. Horner did not sexually abuse the named victim, I can say I am not convinced by a preponderance of the evidence that is now available that he did, and I am certainly not convinced beyond a reasonable doubt.
"Furthermore, while the State did not knowingly present false evidence during Mr. Horner’s trial, we are ultimately responsible for every piece of evidence we offer and every word that is uttered by our witnesses. Circuit Court judges, the jurors who serve our community, criminal defendants, and the public, should be able to rely on the veracity and credibility of me and my deputy district attorneys and the evidence we present.
"When we present an untrue statement about a material fact, we need to acknowledge it and rectify it. That’s what we did today and that is what we will always do.”
The Oregon Court of Appeals in July reversed the conviction and remanded the case to Deschutes County for a new trial, as both prosecutors and the defense had requested. The court's order noted that all involved had agreed the trial court erred in denying a motion to offer evidence to rebut testimony by a prosecution expert regarding the alleged victim's difficulty in remembering details of the crime and citing post-traumatic stress disorder -- "namely, evidence that the PTSD could have resulted from the victim's brother having sexually assaulted her."
News release from the Oregon Innocence Project:
"Oregon Innocence Project is thrilled to announce its first exoneration! The indictment against our client Josh Horner was dismissed today on the motion of Deschutes County District Attorney John Hummel. Mr. Horner was convicted by a non-unanimous jury, of sexual abuse ... a crime he did not commit. Josh was sentenced to fifty years, a sentence that would have resulted in a life sentence for this forty-two year old plumber who had never before been accused or convicted of a crime.
"Oregon Innocence Project commends district attorney Hummel for his cooperation in the investigation of this wrongful conviction and for the decisions he made that have led to this dismissal. OIP’s Legal Director, Steve Wax, says, “this case is a prime example of a cooperative search for truth and justice when the validity of a conviction is called into question.”
"Mr. Horner contacted the Oregon Innocence Project six months after his conviction. As with all sex abuse cases, Josh’s was emotionally laden. These are very difficult cases for all involved in the investigation and defense, including courts and juries. As with many such cases, there was no DNA, no other forensics, and no eyewitnesses. However, our initial screening of Josh’s case raised several red flags that caused us to begin what turned into a nine-month investigation. One critical discrepancy was testimony that Josh shot their black Lab Lucy in front of his daughter and Josh insisted that Lucy was alive, a fact that we were able to prove by locating the dog with her new owner. A second discrepancy was that the complaining witness filed a false report of abuse by Josh’s wife, which further damaged her credibility.
"We brought these facts to DA Hummel and explained our concerns about the case and our belief that our client had been wrongfully convicted. Mr. Hummel agreed to look into the case and we sent him a detailed account of our investigation and our review of the trial record. After the DA’s internal review, we met with him twice. He agreed to conduct a joint investigation with OIP into the conviction and came to agree that we know for a fact that the evidence doesn’t support these accusations. As stated in the District Attorneys Motion to Dismiss: “Lucy the dog was not shot. Lucy the dog is alive and well. My investigator and the investigator from the Oregon Innocence Project tracked down Lucy the dog, verified her identity, spent much time with her, and took pictures of her.”
"OIP hopes that the cooperative process with the prosecuting agency that led to Josh’s exoneration can serve as a model when questions are raised about the innocence of a person convicted of a crime. All parties in this case worked together in the pursuit for truth and justice. DA Hummel stated: “A prosecutor’s job is to seek justice, not convictions. The Oregon Innocence Project’s dogged work on this case helped me see that justice required the dismissal of this prosecution. I thank them for helping me get it right.”
"Josh is grateful to be able to walk out of court a free man today and thanks the OIP 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 also underscores the importance of the continued 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.
"Getting an innocent man out of prison takes an incredible amount of effort, and that is all worthwhile when you see him walking free,” says Steve Wax.